question_title
stringlengths 15
182
| score
int64 -12
227
| link
stringlengths 57
135
| license
stringclasses 2
values | question_body
stringlengths 38
15.9k
| question_id
int64 1
94.7k
| answers
list | tags
list |
|---|---|---|---|---|---|---|---|
Can my ex take back a laptop he gifted to me?
| 4 |
https://law.stackexchange.com/questions/88433/can-my-ex-take-back-a-laptop-he-gifted-to-me
|
CC BY-SA 4.0
|
<p>My ex gifted me a gaming laptop about six and a half months ago. He told me straight ward that he was giving me the laptop. I even offered money to him for it and he denied it. Now he's saying he needs it to do work and he only let me "borrow" it, not have it. But he literally told me he was giving it to me because he never used it, and I've put money into modifying it. I've added ram, storage, etc. I don't think I should be giving back something that was given to me and that I've literally put my money into. Does he have any legal bases to take it back?</p>
<p>Also, to make this clear.. A premise of this question to be taken as a given is that <strong>he did gift me the laptop</strong>, that's why he didn't accept my money when I offered.</p>
| 88,433 |
[
{
"answer_id": 88437,
"body": "<h2>A gift is irrevocable</h2>\n<p>Once he gave it to you, he doesn’t own it anymore. A gift requires three things: intent be the giver to gift the item, acceptance by the recipient, transfer of the item. Once done it can’t be undone.</p>\n",
"score": 2
},
{
"answer_id": 88438,
"body": "<p>This <a href=\"https://fresnocriminallawyer.com/what-does-possession-is-9-10-of-the-law-mean/\" rel=\"nofollow noreferrer\">criminal law attorney</a> says</p>\n<blockquote>\n<p><strong>What Does Possession is 9/10 of the Law Mean?</strong></p>\n<p>The phrase essentially means that when you physically possess something you have a stronger legal claim to it than someone who just claims ownership of it. Another way to say this is that custody presumes ownership.</p>\n</blockquote>\n<p>It seems strange to have to prove something was a gift, which typically has no conditions attached. If an item of value is loaned, it would be reasonable to expect there to be some kind of <em>agreement</em> as to the time span, who is responsible for repairs, theft etc. and both parties would have a record of this.</p>\n<p>Having maintained and upgraded the computer, that would seem to give a strong claim to it.</p>\n<p>In a <a href=\"https://law.stackexchange.com/questions/88433/can-my-ex-take-back-a-laptop-he-gifted-to-me/88438#comment198847_88433\">comment</a> OP says they might have a record of messages which verify the gift, which makes the case even stronger.</p>\n",
"score": 1
}
] |
[
"property",
"common-law",
"gift"
] |
Has anyone been charged for stealing their own stuff?
| 3 |
https://law.stackexchange.com/questions/88429/has-anyone-been-charged-for-stealing-their-own-stuff
|
CC BY-SA 4.0
|
<p>Suppose someone "A" has a storage unit, and was told by the manager to remove their belongings by a certain date.</p>
<p>"A" was then notified that the manager was leaving early and not allowed to come back. If "A" comes back later and there is a lock on the unit, cuts the lock and removes what belongings he could, is this 2nd degree burglary, trespassing and /or vandalism?</p>
| 88,429 |
[
{
"answer_id": 88431,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"england-and-wales-container\">england-and-wales</a></p>\n<p>Has anyone been charged for stealing their own stuff?</p>\n<p>Yes, if it can be shown that someone else had lawful joint-possession at the time. But it's not clear, to me, from the question whether the storage unit manager falls in to this category - assuming she does, the relevant case law is <em>R v Turner (No 2) [1971] 1 WLR 901</em>:</p>\n<blockquote>\n<p>The defendant took his car in to a service station for repairs. When he went to pick it up he saw that the car was left outside with the key in. He took the car without paying for the repairs. He was liable for theft of his own car since the car was regarded as belonging to the service station as they were in possession and control of it. <a href=\"http://www.e-lawresources.co.uk/R-v-Turner.php\" rel=\"nofollow noreferrer\"><em>Source</em></a></p>\n</blockquote>\n<p>Partial answer as there's burglary to consider, which I will return to later when I have more time.</p>\n",
"score": 2
}
] |
[
"criminal-law",
"theft",
"trespass",
"burglary"
] |
Default judgement on failure to respond to summons
| 4 |
https://law.stackexchange.com/questions/88426/default-judgement-on-failure-to-respond-to-summons
|
CC BY-SA 4.0
|
<p>In the case "Raising Cane's USA, LLC et al v. Twins Chicken Inc", Plaintiff delivers a summons and Defendant appears to never reply. After 3 months, Plaintiff voluntarily withdraws their case instead of pursing the default judgement after 21 days of non-response per FRCP 12(a)(1).</p>
<p>I'm not a lawyer so these might be naive questions:</p>
<ol>
<li>Why didn't the court automatically issue a default judgement after 21 days? Does the plaintiff need to actively pursue it?</li>
<li>Would the case history look like this if the parties settled? I would've expected some public record indication of this.</li>
<li>Practically speaking, why might the plaintiff withdraw their case after receiving no response?</li>
</ol>
<p>History of: 2:15-cv-01298-JLR
<a href="https://i.stack.imgur.com/tX848.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/tX848.png" alt="enter image description here" /></a></p>
| 88,426 |
[
{
"answer_id": 88430,
"body": "<h2>Rules of the court</h2>\n<ol>\n<li>Default judgment is not automatic. The party wanting default has to ask for it.</li>\n<li><em>Voluntary Dismissal</em> indicates that the suing party either settled or for some other reason no longer wishes or isn't able to pursue the case anymore.</li>\n<li>This is speculative, but the three most common reasons are settling, realizing that the return on investment is bad, or realizing a mistake of fact that would sink the case if it came to trial.</li>\n</ol>\n",
"score": 3
}
] |
[
"civil-procedure",
"washington",
"federal-courts"
] |
Copying a parody of a movie using a fan's 3D model
| 4 |
https://law.stackexchange.com/questions/88419/copying-a-parody-of-a-movie-using-a-fans-3d-model
|
CC BY-SA 4.0
|
<p>I really like a board game. This game includes artistic references (as parody) to a well-known movie.</p>
<p>I wanted to improve the pieces of the board game (which were 2-dimensional) to augment my own experience playing it. This led me to create a 3D printable model of a ship from the movie that modeled the parody's artwork (which has significant differences from the movie, but is still recognizable as a ship from the movie, as its intent is parody).</p>
<p>In order to accomplish this, I started with a fan-made model of the ship from the original movie that I found on Thingiverse. I altered it significantly in order to match the parody's artistic style and to work as a printable game piece.</p>
<p>The fan's model has an Attribution-NonCommercial license on it.</p>
<p>I played the board game with some of my friends. Some of my friends want to pay me to make them their own copies of the game pieces, which includes (among many things) this ship.</p>
<p>My four questions:
(1) Is my creation of this game piece considered parody because I am very explicitly copying parody? If so it might allow me to be able to sell these pieces under the "fair use" clause. <a href="http://lemoinefirm.com/parody-fair-use-or-copyright-infringement" rel="nofollow noreferrer">http://lemoinefirm.com/parody-fair-use-or-copyright-infringement</a></p>
<p>(2) What about if I get permission to sell? Who's permission would I need: the parody game maker's? The fan's, who modeled the spaceship? Or the makers of the movie themselves?</p>
<p>(3) Does the fan have the right to put a copyright license on his model of the ship in the first place because he is explicitly copying someone else? Or is his work considered art?</p>
<p>(4) Has my work been altered enough (now that it distinctly resembles the parody and not the model I used) that it is considered new artwork that has my copyright, not the fan's? <a href="https://www.wildlifeartstore.com/can-you-copy-art/" rel="nofollow noreferrer">https://www.wildlifeartstore.com/can-you-copy-art/</a></p>
| 88,419 |
[
{
"answer_id": 88421,
"body": "<h2>Copyright is hard.</h2>\n<p>The movie has a copyright, and so has its ship model. This is the original copyright.</p>\n<p>The boardgame has a token. That thing has its own copyright, no matter if it's a parody of another thing or not. The copyright holder might not be the boardgame maker, but it is under copyright. In any way, parody is fair use, so no harm here.</p>\n<p>The model has a copyright, but also infringes on the film's copyright as it is a derivative of the film. If the film copyright holder wants, they can have it taken down and sue the maker. In any way, this model is available under a specific license. The model license is clearly <strong>Non Commercial</strong>. The CC-A-NC license can't be changed to one that is commercial. You can only add more No categories.</p>\n<h2>The questions:</h2>\n<p>1 - No. Your work is a derivative work of both the model AND the boardgame. You don't parody the boardgame.</p>\n<p>2 - You need a license from not one but at least two sources: the model author and the boardgame copyright holder. You might even need a license from the original film company.</p>\n<p>3 - YES. He made the model, he can license it as he wants, but the license might be ineffective: He might have coverage under an explicit fan license with the movie company to make the model (allowing sharing under such other license) or not (when it might be silent acceptance of fan works, am implicit license or just plain lack of knowledge of the infringing model) - determining if the company wants to pursue is not your legal battle. Your battle is more likely with the copyright holder (of movie and boardgame) anyway because you lack a valid license from <strong>them</strong>. "I used this infringing model and breached the license I got it under" is... a very precarious point in court.</p>\n<p>4 - No. You used the other work, you can't get out of the CC-A-NC license by altering the item. It'll always be a derivative work of the model you put in. You only get copyright in the changes. The resulting item has shared copyright with the original model maker. He gave you a license to do that, but the unbreakable condition unless you get a different license is: You can't ever sell this, you HAVE to tell them that I was part of this design.</p>\n",
"score": 4
}
] |
[
"copyright",
"creative-commons",
"derivative-work",
"parody",
"games"
] |
International status of Batman & Robin photo, Public Domain USA?
| 3 |
https://law.stackexchange.com/questions/88376/international-status-of-batman-robin-photo-public-domain-usa
|
CC BY-SA 4.0
|
<p>There is a Batman & Robin photo which, according to Wiki, is public domain in the USA because it was published in the 1960s without a copyright notice.</p>
<p>I would like to use this image in a song video I am producing for publication online (YouTube, TikTok, etc).</p>
<p>I’d be very grateful if someone could advise me on the likely copyright situation OUTSIDE of the USA.</p>
<p>Details of the image are here: <a href="https://commons.m.wikimedia.org/wiki/File:Batman_and_Robin_1966.JPG" rel="nofollow noreferrer">File:Batman and Robin 1966.JPG - Wikimedia Commons</a></p>
| 88,376 |
[
{
"answer_id": 88425,
"body": "<p>The situation is complicated. The easy cases:</p>\n<ol>\n<li>In the United States, it's in the public domain for lack of a copyright notice.</li>\n<li>In countries that are parties to neither the <a href=\"https://en.wikipedia.org/wiki/Berne_Convention\" rel=\"nofollow noreferrer\">Berne Convention</a> nor the <a href=\"https://en.wikipedia.org/wiki/TRIPS_Agreement\" rel=\"nofollow noreferrer\">TRIPS Agreement</a>, it's in the public domain because those countries don't recognize anyone else's copyrights.</li>\n<li>In countries that have adopted the <a href=\"https://en.wikipedia.org/wiki/Rule_of_the_shorter_term\" rel=\"nofollow noreferrer\">rule of the shorter term</a>, it is in the public domain because the image was never copyrighted in the country of origin.</li>\n</ol>\n<p>In the remaining countries, it is likely but not certain that the photo is in the public domain. <a href=\"https://en.wikisource.org/wiki/Convention_for_the_Protection_of_Literary_and_Artistic_Works/Articles_1_to_21#Article_18\" rel=\"nofollow noreferrer\">Article 18 of the Berne Convention</a> provides that:</p>\n<blockquote>\n<p>(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.</p>\n<p>(4) The preceding provisions shall also apply in the case of new accessions to the Union...</p>\n</blockquote>\n<p>So in theory, since it was in the public domain in the United States as of March 1, 1989 (the date the United States <a href=\"https://en.wikipedia.org/wiki/Berne_Convention_Implementation_Act_of_1988\" rel=\"nofollow noreferrer\">ratified the Berne Convention</a>), it's in the public domain in all Berne countries. However, not all countries may have implemented Article 18 exactly as written.</p>\n",
"score": 3
},
{
"answer_id": 88385,
"body": "<h2>The photo will be protected in most jurisdictions</h2>\n<p>The Berne protocol which governs international copyright gives copyright for a minimum of 50 years (most counties use 70 years) after the photographer’s death and does not require registration. Most countries other than the US were signatories at the time so the photo will not be public domain.</p>\n",
"score": 2
}
] |
[
"copyright"
] |
Is it Misrepresentation of Intellectual Property to change the dialect of the same language?
| 0 |
https://law.stackexchange.com/questions/88414/is-it-misrepresentation-of-intellectual-property-to-change-the-dialect-of-the-sa
|
CC BY-SA 4.0
|
<p>Say that Bob wrote a paper that consists of the word, "industrialised". This is how the British English word is spelled. Now, say that Jerry wants to quote Bob on his paper. But Jerry speaks American English, and so he spells the word, "industrialized". Jerry changes the word to the American version. Can Bob take legal action (assuming he has full copyright protection), against Jerry for changing the dialect of the same language?</p>
| 88,414 |
[
{
"answer_id": 88415,
"body": "<p>I know of no cause of action related to "misrepresentation of intellectual property" (I believe it may be a phrase used colloquially in the context of academic integrity). If such a cause of action exists, I'll leave it to another answer to discuss. This answer approaches your question through the lens of copyright infringement and moral rights.</p>\n<p>A reproduction is an infringement if it substantially reproduces the original. Short quotes, properly attributed, will often be fair use, even if exactly reproduced.</p>\n<p>If an exact reproduction is not an infringement (e.g. because it copied too short a phrase) or if it is <a href=\"https://law.stackexchange.com/a/7684/46948\">fair use</a>, then a slightly altered reproduction <a href=\"https://en.m.wikipedia.org/wiki/Argumentum_a_fortiori\" rel=\"nofollow noreferrer\"><em>a fortiori</em></a> would also not be an infringement or would be fair use.</p>\n<p>In jurisdictions that recognize <a href=\"https://en.wikipedia.org/wiki/Moral_rights\" rel=\"nofollow noreferrer\"><em>moral rights</em></a>, there may be circumstances where an alteration, even to spelling, would be a violation of an author's moral rights. But to make out a violation of an author's moral rights based only on a spelling alteration, the spelling would have to be critical to the integrity of the work (e.g. perhaps the choice of dialect) and the alteration would have to be prejudicial to the author's honour or reputation.</p>\n",
"score": 4
},
{
"answer_id": 88418,
"body": "<p>If Jerry's misspelling caused harm to Bob (really hard to see how it could), Bob could sue Jerry. The prospects for success are slightly improved if a case can be made that Jerry impugned Bob's Britishness by this act, but only from 0% to 0.1%. You assert that Bob changed the spelling, but this is a question of fact that would have to be proven in court (since probably the publisher changed the spelling).</p>\n",
"score": 1
}
] |
[
"copyright",
"language"
] |
Would a giant "F*** BIDEN" flag mounted on a truck be first amendment protected?
| 27 |
https://law.stackexchange.com/questions/78237/would-a-giant-f-biden-flag-mounted-on-a-truck-be-first-amendment-protected
|
CC BY-SA 4.0
|
<p>I recently saw one of those trucks with flags mounted on them. The usual kind: big truck, 4'x6' flags, usually supporting Don't Tread On Me, Donald Trump, MIA, etc. Or the actual American flag. They are legal by the first amendment and don't cause safety problems for traffic. No problems.</p>
<p>I recently saw a large flag on a giant truck, styled like a "Trump 2020" campaign poster, substituted with the words "F*** BIDEN AND F*** YOU FOR VOTING FOR HIM!". The first word is probably almost a foot tall, obviously visible to everyone. I know people (or at least Americans) wear t-shirts like that everywhere, protected by freedom of speech. The Supreme Court has found vulgar bumper stickers to be also protected by the first amendment. However, bumper stickers and t-shirts are relatively small. This flag is nearly impossible to not see in traffic or in parking lots. Kids clearly see it. It virtually cannot be avoided.</p>
<ol>
<li>Could that particular flag be considered obscene and not protected by the first amendment?</li>
<li>Because it is a large flag mounted high up, could it qualify as a
billboard, such as mobile billboards attached to the side of trucks,
which by law would not be able to display the most vulgar swear
words?</li>
<li>Could a city outlaw it?</li>
</ol>
<p>This happened in Idaho.</p>
<p>UPDATE: I added "in Idaho" because I've seen the location question asked several times in questions. I don't mean anything special, positive, negative, different rules, etc. Sometimes an answer will involve quoting a state constitution or statutes. Don't read into "This happened in Idaho" too deeply.</p>
<p>UPDATE 2: However, part (2) of the Miller test refers to as defined by state law. So I guess the question is in general and in this case the specific state of Idaho. Hope that clears it up.</p>
| 78,237 |
[
{
"answer_id": 78239,
"body": "<p>The First Amendment controls in the US, so it does not matter if this is Idaho or Berkeley CA. This is clearly an expression of a political viewpoint, which is protected by the First Amendment. Any attempt to suppress a political viewpoint by appeal to "obscenity" or "zoning" or the like will ultimately fail in the courts. The word <em>fuck</em> is not lewd, filthy, or disgusting, and clearly does not constitute "obscenity". There is a test, the "Miller test", for obscenity, that requires all three of these conditions to be met:</p>\n<blockquote>\n<p>(1) whether ‘the average person, applying contemporary community\nstandards’ would find that the work, ‘taken as a whole,’ appeals to\n‘prurient interest’</p>\n<p>(2) whether the work depicts or describes, in a patently offensive\nway, sexual conduct specifically defined by the applicable state law,\nand</p>\n<p>(3) whether the work, ‘taken as a whole,’ lacks serious literary,\nartistic, political, or scientific value.</p>\n</blockquote>\n<p>The word <em>fuck</em> is not obscene under this test, especially in this context.</p>\n",
"score": 40
},
{
"answer_id": 78261,
"body": "<p>Let me paint you a picture. It's April 26, 1968. We're in the corridors of an LA courthouse. Paul Robert Cohen is wearing a leather jacket, upon which he has written in white lettering 3 words. Some officer just asked a judge to hold Cohen in contempt of court for the jacket, but that judge refuses. The officer now approaches and arrests Cohen for <em>disturbing the peace</em> in the hallway. The words on the jacket?</p>\n<h1>Fuck the Draft</h1>\n<p>This was the start of the court battle of <a href=\"https://en.wikipedia.org/wiki/Cohen_v._California\" rel=\"noreferrer\">Cohen v California.</a> The case ended in front of the SCOTUS in the 1971 period. It's <a href=\"https://supreme.justia.com/cases/federal/us/403/15/\" rel=\"noreferrer\">holding</a> is clear:</p>\n<blockquote>\n<p>Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense. Pp. 403 U. S. 22-26.</p>\n</blockquote>\n<p>The word fuck is, since that holding, <strong>explicitly</strong> free to be used to criticize the government, and it is <strong>explicitly</strong> banned to make that word a criminal offense. It is <strong>not</strong> obscene.</p>\n<h3>Do you want to know more?</h3>\n<p><a href=\"https://legaltalknetwork.com/podcasts/make-no-law/2018/11/the-f-bomb/\" rel=\"noreferrer\">I strongly suggest to listen to Ken "Popehat" White on this case.</a></p>\n<p>Another follow-up listen would best be the way how the word <a href=\"https://legaltalknetwork.com/podcasts/make-no-law/2020/06/i-know-it-when-i-see-it/\" rel=\"noreferrer\">obscenity ended up being defined legally</a>. To say it short: it's not just the word "fuck" but the <a href=\"https://en.wikipedia.org/wiki/Jacobellis_v._Ohio\" rel=\"noreferrer\">Jacobellis</a> holding is better describable as <strong>I know it when I see it</strong>. Miller later replaced that.</p>\n",
"score": 38
},
{
"answer_id": 78263,
"body": "<p>I must agree with the <a href=\"https://law.stackexchange.com/a/78239/17500\">answer by user6726</a>. But I want to call specific attention to a US Supreme Court case that is exactly on point, <a href=\"https://supreme.justia.com/cases/federal/us/403/15/\" rel=\"noreferrer\"><em>Cohen v. California</em>, 403 U.S. 15 (1971)</a></p>\n<p>I think it only appropriate to quote that Vietnam War era decision somewhat extensively here. In that case, Justice Harlan wrote for the court:</p>\n<blockquote>\n<p>This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance.</p>\n<p>The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California, Second Appellate District, as follows:</p>\n<blockquote>\n<p>On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words 'Fuck the Draft' which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.</p>\n</blockquote>\n<p>...</p>\n<p>(<em>403 U. S. 18</em>) The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only "conduct" which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon "speech," cf. Stromberg v. California, 283 U. S. 359 (1931), not upon any separately identifiable conduct which allegedly was intended by Cohen to be perceived by others as expressive of particular views but which, on its face, does not necessarily convey any message, and hence arguably could be regulated without effectively repressing Cohen's ability to express himself. Cf. United States v. O'Brien, 391 U. S. 367 (1968). Further, the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed. At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected. Yates v. United States, 354 U. S. 298 (1957).</p>\n<p>...</p>\n<p>(<em>403 U. S. 19-21</em>) [A]s it comes to us, this case cannot be said to fall within those relatively few categories of instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed. <strong>This is not, for example, an obscenity case.</strong> [<em>emphasis added</em>] Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. <em>Roth v. United States</em>, 354 U. S. 476 (1957). It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket.</p>\n<p>This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called "fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. <em>Chaplinsky v. New Hampshire</em>, 315 U. S. 568 (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not "directed to the person of the hearer." <em>Cantwell v. Connecticut</em>, 310 U. S. 296, 310 U. S. 309 (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. <em>Feiner v. New York</em>, 340 U. S. 315 (1951); <em>Termniello v. Chicago</em>, 337 U. S. 1 (1949). There is, as noted above, no showing that anyone who saw Cohen was, in fact, violently aroused, or that appellant intended such a result.</p>\n<p>Finally, in arguments before this Court, much has been made of the claim that Cohen's distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant's crude form of protest. Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. See, e.g., <em>Organization for a Better Austin v. Keefe</em>, 402 U. S. 415 (1971). While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, e.g., <em>Rowan v. Post Office Dept.</em>, 397 U. S. 728 (1970), we have at the same time consistently stressed that "we are often captives' outside the sanctuary of the home and subject to objectionable speech." Id. at 397 U. S. 738. <strong>The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.</strong> [<em>emphasis added</em>] Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.</p>\n<p>...</p>\n<p>[<em>403 U. S. 24-25</em>] The constitutional right of free expression is powerful medicine in a society as diverse and populous a ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. See Whitney v. California, 274 U. S. 357, 274 U. S. 375-377 (1927) (Brandeis, J., concurring).</p>\n<p>... We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why "[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons," <em>Winters v. New York</em>, 333 U. S. 507, 333 U. S. 528 (1948) (Frankfurter, J., dissenting), and why, "so long as the means are peaceful, the communication need not meet standards of acceptability," <em>Organization for a Better Austin v. Keefe</em>, 402 U. S. 415, 402 U. S. 419 (1971).</p>\n<p>... while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.</p>\n<p>Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. ... Indeed, as Mr. Justice Frankfurter has said,</p>\n<blockquote>\n<p>[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures -- and that means not only informed and responsible criticism, but the freedom to speak foolishly and without moderation.</p>\n</blockquote>\n<p><em>Baumgartner v. United States</em>, 322 U. S. 665, 322 U. S. 673-674 (1944).</p>\n</blockquote>\n<p>By the way, according to <em>The Brethren</em> Then chief Justice Burger (who had dissented) urged Justice Harlan not to quote the word "fuck" when formally reading the opinion from the bench, but Harlan felt it would be conceding that the word was unacceptable in a political or legal context, and so he read the opinion uncensored, and I have quoted that passage unaltered here.</p>\n<p>The opinion in <em>Cohen</em> mentions "fighting words", then generally considered not protected by the First Amendment. (Some comments on this thread have also mentioned fighting words.) That position has since <em>Cohen</em> changed somewhat.</p>\n<p>The LII page <a href=\"https://www.law.cornell.edu/wex/fighting_words\" rel=\"noreferrer\">"Fighting Words"</a>, after reviewing variosu court decisions on the subject, reads:</p>\n<blockquote>\n<p>In <em>R.A.V. v. City of St. Paul</em> (1992), the Supreme Court found that the "First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed." Even if the words are considered to be fighting words, the First Amendment will still protect the speech if the speech restriction is based on viewpoint discrimination.</p>\n</blockquote>\n",
"score": 9
},
{
"answer_id": 78269,
"body": "<p>A prohibition directed specifically at this would probably fail for first amendment reasons. However, the first amendment does allow content-neutral restrictions on speech. If a locality has a law against large vehicle displays, courts would look at whether it advances a legitimate government interest (e.g. avoiding displays that restrict visibility, or preventing safety hazards in the event of a collision), does not unduly burden speech (in this case, courts would probably find that people have plenty of other methods of expressing discontent with Biden), and is applied evenly without respect to any speech communicated by it (if the driver can show that the law on its face, or through its enforcement, targets particular types of speech, rather than the mere fact of a large physical object blocking driver visibility, the law would be found unconstitutional).</p>\n",
"score": 1
}
] |
[
"united-states",
"freedom-of-speech",
"first-amendment",
"protest",
"idaho"
] |
Do all heirs have to sign to sell inherited real estate In West Virginia?
| 2 |
https://law.stackexchange.com/questions/88377/do-all-heirs-have-to-sign-to-sell-inherited-real-estate-in-west-virginia
|
CC BY-SA 4.0
|
<p>My Mother passed away and named five beneficiaries in her will. Before her house was sold, my sister, one of the five, passed away intestate. She has two adult children. Now, my sister’s son is refusing to sign to sell my mother’s house. Can my mother’s Executor sell the house without my nephew’s signature? (My nephew's share of the house is 10%, and the rest of us own 20% each.)</p>
| 88,377 |
[
{
"answer_id": 88386,
"body": "<h2>If the estate has not been settled, yes</h2>\n<p>The executor is the legal owner of the house and does not need the beneficiaries' permission to sell it if they decide that is in the beneficiaries' best interests. They can consider their wishes, but they don't have to, and they don't have to follow them if they do.</p>\n",
"score": 3
},
{
"answer_id": 88396,
"body": "<p>That depends on state law and the terms of the will, among other things. <a href=\"https://www.gibbslawfl.com/tenancy-in-common-and-florida-estate-planning/\" rel=\"nofollow noreferrer\">In Florida</a>, by default tenancies are tenancy in common. It is possible to make it be a joint tenancy with right of survivorship, but you have to explicitly say this. The children of the deceased beneficiary might be effectively disinherited (that's why "with right of survivorship" is crucial).\nThe heir of a tenant in common receives the decedent owner’s share, and all rights attached to that interest. In that case the uncooperative person can complicate the process. You might be forced to file a partition suit, which would result in a court-supervised sale (not an economically advisable outcome).</p>\n",
"score": 1
}
] |
[
"trusts-and-estates"
] |
Can I build on an easement?
| 3 |
https://law.stackexchange.com/questions/88405/can-i-build-on-an-easement
|
CC BY-SA 4.0
|
<p>I live in Jackson County, Illinois. I failed to check if there was an easement before buying my house, and got saddled with a 50-foot-wide ingress/egress easement. I know this is unusual, but it really isn't a utility easement. The owner apparently gave himself the easement when he sold the land to the people I bought the property from.</p>
<p>Can I build a duck coop on it as long as the easement owner can easily access his property to the north of my house, using the easement? His property north of mine is undeveloped land, that he mows at least once a year. He also has access from the highway next to his parcel.</p>
| 88,405 |
[
{
"answer_id": 88408,
"body": "<h2>If it doesn’t cause <a href=\"https://www.cbp.com.au/insights/insights/2012/february/can-you-build-over-or-under-an-easement\" rel=\"noreferrer\">substantial interference</a> to the easement rights</h2>\n<p>You need to look at the specific terms of the easement i.e. what right it gives to your neighbour. If you can build your chicken coop in such a way that it doesn’t materially affect those rights, then that’s ok</p>\n<p>However, for this type of easement, any ground level structure is likely to interfere with the use of the easement.</p>\n",
"score": 5
}
] |
[
"real-estate",
"illinois",
"easement"
] |
What power does a first tier tribunal have to compel testimony?
| 2 |
https://law.stackexchange.com/questions/88401/what-power-does-a-first-tier-tribunal-have-to-compel-testimony
|
CC BY-SA 4.0
|
<p>Bob brings an application in a first tier tribunal (property chamber). He is asked a question during the hearing pursuant to his witness statement which he feels is irrelevant to the proceedings. Perhaps this question is asked by the tribunal judge, or perhaps by his opponent’s litigant, On cross examination. Is Bob obligated to answer any question that is asked of him? If he declines any question with no comment, the perhaps inferences may be drawn against him or his testimony if it is reasonable to do so, but can he be sanctioned for declining to give comment on a particular question in itself?</p>
<p>Or, perhaps the question is not asked of Bob the applicant, but of will the witness. Where does will now stand?</p>
| 88,401 |
[
{
"answer_id": 88407,
"body": "<h2>They can throw you in jail until you do answer</h2>\n<p>This is true of all courts and parliamentary committees. An administrative tribunal may need to refer the issue to a court to get a detention order.</p>\n<p>The witness does not get to decide which questions they will answer and which they won’t, the court/committee/tribunal does.</p>\n<p>If the answer might incriminate you in an unresolved <em>criminal</em> matter (i.e. one where you have not already been convicted or acquitted) then you can state that and you might be excused answering. This does not have to be the matter presently on trial. In the USA this right is absolute: you may be offered immunity to waive this right but the choice is yours. In most other jurisdictions, a judge can give you immunity and then compel an answer. In some forums, usually anti-corruption tribunals, you can be compelled to answer without immunity but your testimony is inadmissible in court.</p>\n",
"score": 1
}
] |
[
"england-and-wales",
"testimony",
"contempt-of-court",
"tribunal",
"tribunal-procedure"
] |
How can a witness to a civil matter be invited, called or compelled to give testimony?
| 1 |
https://law.stackexchange.com/questions/88402/how-can-a-witness-to-a-civil-matter-be-invited-called-or-compelled-to-give-test
|
CC BY-SA 4.0
|
<p>In criminal trials I understand that one can specify a list of witnesses that a court will try to reach, but are they compelled to assist the trial with their participation?</p>
<p>Now what if it is a civil matter that someone had witnessed relevant events in? And the claimant (or for that matter either of the parties) would like to invite them to give testimony as to their recollections of the events.</p>
<p>What mechanisms are there to ask or “get” them to partake in the proceedings if they have no incentive to do so?</p>
| 88,402 |
[
{
"answer_id": 88406,
"body": "<h2>Witnesses are <a href=\"https://en.wikipedia.org/wiki/Subpoena\" rel=\"nofollow noreferrer\">subpoenaed</a></h2>\n<p>The party who wishes to call the witness asks the court for a subpoena, the court issues it, the party serves it on the witness, and the witness must attend court on the day and give evidence or be arrested for contempt.</p>\n<p>A good lawyer does this even for witnesses who would have come anyway. Partly because it entitles the witness to reasonable reimbursement for their travel and accommodation expenses but mostly because it’s very embarrassing for a lawyer when a key witness doesn’t turn up and the only answer they have when the judge says “did you subpoena them?” is “No”.</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"witnesses",
"testimony",
"any-jurisdiction"
] |
Where do executive agencies obtain their power to effectively legislate?
| 16 |
https://law.stackexchange.com/questions/88360/where-do-executive-agencies-obtain-their-power-to-effectively-legislate
|
CC BY-SA 4.0
|
<p>Large portions of the Code of Federal Regulations are enacted by executive agencies such as the Federal Communications Commission and the Federal Aviation Administration, rather than by Congress. The parts that I have seen written by Congress are passed by bills that do not directly "amend X CFR § Y.Z to say ABC," but instead "direct the Federal XYZ Commission to amend X CFR § Y.Z to say ABC."</p>
<p>How do these executive agencies have the power to effectively legislate? Article 1, section 1 of the US Constitution says:</p>
<blockquote>
<p>All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.</p>
</blockquote>
<p>Can Congress pass, and have they passed, [a] law[s] giving some of their legislative authority to executive agencies?</p>
| 88,360 |
[
{
"answer_id": 88378,
"body": "<p>Legislation passed by Congress grants authority to the Executive to make regulations relevant to a particular topic. It's common for Congress to pass laws that contain language like "The Secretary/Administrator/whoever shall prescribe such regulations as may be necessary to carry out the provisions of this chapter." It might be illustrative to see how this practically works:</p>\n<p>So let's look for an example. We'll go to the <a href=\"https://www.federalregister.gov/\" rel=\"noreferrer\">Federal Register</a>, which contains notices of proposed regulations. Choosing an interesting looking new one, we can look at <a href=\"https://www.federalregister.gov/documents/2023/01/19/2023-00702/national-organic-program-nop-strengthening-organic-enforcement\" rel=\"noreferrer\">National Organic Program (NOP); Strengthening Organic Enforcement</a>. That's the new final rule today that <a href=\"https://www.washingtonpost.com/business/2023/01/19/usda-rule-organic-fraud/\" rel=\"noreferrer\">tightens the rules for food products labeled "organic"</a>. Scrolling through the rule, there are some summaries, a table of estimated costs and benefits, and then we get to <a href=\"https://www.federalregister.gov/d/2023-00702/p-65\" rel=\"noreferrer\">the section headed "Authority,"</a> which tells us why the Executive Branch (in this case, the USDA) thinks it has the authority to issue this regulation:</p>\n<blockquote>\n<p>The Organic Foods Production Act of 1990 (OFPA) (7 U.S.C. 6501-6524), authorizes the Agricultural Marketing Service (AMS) to establish and maintain national standards governing the marketing of organically produced agricultural products. AMS administers these standards through the National Organic Program (NOP). Final regulations implementing the NOP, also referred to as the USDA organic regulations, were published on December 21, 2000 (65 FR 80548) and became effective on October 21, 2002.<a href=\"https://www.federalregister.gov/documents/2023/01/19/2023-00702/national-organic-program-nop-strengthening-organic-enforcement\" rel=\"noreferrer\">2</a> Through these regulations, AMS oversees national standards for the production, handling, labeling, and sale of organically produced agricultural products.</p>\n</blockquote>\n<p>Ok, so Congress passed a law in 1990 called the Organic Foods Production Act, and that tells the USDA to issue regulations related to the marketing of organic foods. If we <a href=\"https://www.law.cornell.edu/uscode/text/7/chapter-94\" rel=\"noreferrer\">turn to the relevant chapter of the US Code</a>, we can see language where Congress delegates to the Executive the authority to issue these regulations. For example, <a href=\"https://www.law.cornell.edu/uscode/text/7/6503\" rel=\"noreferrer\">one provision says:</a></p>\n<blockquote>\n<p>The Secretary shall establish an organic certification program for producers and handlers of agricultural products that have been produced using organic methods as provided for in this chapter.</p>\n</blockquote>\n<p>And then there's <a href=\"https://www.law.cornell.edu/uscode/text/7/6506\" rel=\"noreferrer\">a much longer section</a> (§ 6506) that lists the "General Requirements" for the organic food program. Some lay out specific details that need to be addressed in the regulations (e.g. Congress says the regulations have to provide for annual inspections of organic farms by certifying agents) and discretionary ones (e.g. Congress says that the regulations can make certain reasonable exceptions if a farm is subject to an emergency pest treatment program).</p>\n<p>Other requirements are quite broad; one says that the regulation needs to "provide for appropriate and adequate enforcement procedures, as determined by the Secretary to be necessary and consistent with this chapter." In other words, Congress isn't saying specifically how this should all be enforced; they're just saying the regulation should provide for the enforcement procedures the Executive considers to be necessary. In turn, the regulation goes into much more detail on inspections, paperwork that needs to be maintained and paperwork that needs to be filed with the government, mediation to resolve compliance issues, appeals procedures, and so on. Congress doesn't want to get into the nitty gritty of super-detailed stuff like the exact process for dealing with appeals of organic food violations. So the law Congress passed just says the Executive needs to include some sort of appeal procedure in the regulations, and it delegates the authority to figure out all those details to the Secretary of Agriculture and their staff, so long as they follow the general process for issuing regulations.</p>\n<p><strong>So to sum up</strong>, executive agencies gain their authority to issue regulations when that power is granted to them by legislation (n.b. Congress's ability to grant that power is limited by the <a href=\"https://en.wikipedia.org/wiki/Nondelegation_doctrine\" rel=\"noreferrer\">nondelegation doctrine</a>). Sometimes that legislation may be quite specific, while others times it may be very broad and gives the Executive Branch significant discretion. For example (picking random new regulations):</p>\n<ul>\n<li><p>Congress <a href=\"https://www.law.cornell.edu/uscode/text/16/chapter-38/subchapter-IV\" rel=\"noreferrer\">said</a> the Secretary of Commerce should issue certain types of regulations related to fisheries, so the National Marine Fisheries Service <a href=\"https://www.federalregister.gov/documents/2023/01/19/2023-00979/fisheries-of-the-northeastern-united-states-atlantic-sea-scallop-fishery-closure-of-the-closed-area\" rel=\"noreferrer\">issued a rule</a> about the "Closed Area I Scallop Access Area," wherever that is.</p>\n</li>\n<li><p>Congress said the Secretary of the Interior may issue regulations dealing with certain matters related to museums and archeological resources removed from Native American lands, and Congress passed another law that says that civil penalties should be updated every year based on inflation, so the Department of Interior <a href=\"https://www.federalregister.gov/documents/2023/01/19/2023-00982/civil-penalties-inflation-adjustments\" rel=\"noreferrer\">issued a rule</a> increasing the fines for noncompliance as Congress directed.</p>\n</li>\n<li><p>Congress <a href=\"https://www.law.cornell.edu/uscode/text/49/44701\" rel=\"noreferrer\">said</a> the Administrator of the Federal Aviation Administration shall issue various types of regulations related to aviation safety, so the FAA is <a href=\"https://www.federalregister.gov/documents/2023/01/19/2023-00886/airworthiness-directives-airbus-helicopters\" rel=\"noreferrer\">proposing</a> a rule about inspecting for corrosion and repairing or replacing affected parts of landing gears on certain Airbus helicopters.</p>\n</li>\n<li><p>Congress <a href=\"https://www.govinfo.gov/content/pkg/USCODE-2021-title16/pdf/USCODE-2021-title16-chap32-sec1431.pdf\" rel=\"noreferrer\">said</a> we're gonna have the National Marine\nSanctuary System and it "shall consist of national marine sanctuaries designated by the Secretary in accordance with this chapter," so the Secretary of Commerce, via the Office of National Marine Sanctuaries within NOAA, <a href=\"https://www.federalregister.gov/documents/2023/01/19/2023-00861/proposed-lake-ontario-national-marine-sanctuary-notice-of-proposed-rulemaking\" rel=\"noreferrer\">proposes</a> to create the Lake Ontario National Marine Sanctuary.</p>\n</li>\n</ul>\n",
"score": 21
},
{
"answer_id": 88363,
"body": "<p>This derives from <a href=\"https://constitutioncenter.org/the-constitution/articles/article-ii\" rel=\"noreferrer\">art. II of the constitution</a></p>\n<blockquote>\n<p>The executive Power shall be vested in a President of the United\nStates of America</p>\n<p>...</p>\n<p>he shall take Care that the Laws be faithfully executed</p>\n</blockquote>\n<p>Congress cannot legally pass a law handing over their power to the executive branch – this is the <a href=\"https://www.law.cornell.edu/wex/nondelegation_doctrine\" rel=\"noreferrer\">non-delegation doctrine</a>. However, Congress routinely passes law which are vague as to implementation, in which case the executive branch has to try to figure out what exactly is allowed / prohibited by the law. One guiding principle in that area is known as <a href=\"https://www.law.cornell.edu/wex/chevron_deference\" rel=\"noreferrer\">"Chevron deference"</a>, the essence of which is that\nwhen the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s action was based on a permissible construction of the statute. The main statutory restriction on federal regulations is the <a href=\"https://en.wikipedia.org/wiki/Administrative_Procedure_Act_(United_States)\" rel=\"noreferrer\">Administrative Procedures Act</a>, which say something about <em>how</em> the executive branch can issue regulations.</p>\n",
"score": 10
},
{
"answer_id": 88373,
"body": "<p>Many statutes, especially in technical areas like environmental law, FCC regulations, and SEC regulations, expressly delegate to agencies the authority to adopt regulations. This is a delegated quasi-legislative role.</p>\n<p>For example, the EPA is charged with deciding how much of different kinds of pollutants is dangerous.</p>\n<p>But, any agency, even in the absence of express statutory authorization may adopt regulations regarding the meaning of the statutes it is charged with enforcing and other matters not contrary to the statute. This is akin to any organized policy for enforcing a law.</p>\n",
"score": 9
}
] |
[
"united-states",
"constitutional-law",
"us-constitution",
"us-federal-government",
"regulations"
] |
Can someone claim compensation for discrimination even if they weren't personally affected by it?
| -2 |
https://law.stackexchange.com/questions/88333/can-someone-claim-compensation-for-discrimination-even-if-they-werent-personall
|
CC BY-SA 4.0
|
<p><a href="https://www.casemine.com/judgement/uk/5d133cf52c94e0558cd6842d" rel="nofollow noreferrer">Dr. Bower attempted to buy</a> and later did buy Pink IPA from Brewdog, but was not allowed to do so because he looked male.</p>
<p>As they maintained this criterion that negatively impacted not only Dr. Bower, but indeed all cis-identified males, are any males entitled to claim against Brewdog Plc until 2024, even though the violative sexist promotional offer is now over?</p>
| 88,333 |
[
{
"answer_id": 88337,
"body": "<p>My read of the decision is that it would be only the subset of males who:</p>\n<p>A.) Ordered Pink IPA during the promotional period it was available</p>\n<p>AND</p>\n<p>B.) were under no other restrictions (i.e. Legal Drinking Age, Ban from premises for prior behavior, lack of stock)</p>\n<p>AND</p>\n<p>C.) meets at least one of the following two criteria:</p>\n<p>1.) Were refused the sale of Pink IPA because of their gender</p>\n<p>OR</p>\n<p>2.) Were forced to lie about their gender identity in order to buy the beverage</p>\n<p>That is providing that the defendant did not successfully appeal the decision to a higher level court and had the decision reversed or overturned. I assume that the date of 2024 is with in the 5 year window for such action to be taken for a civil suit, however, I am unfamiliar with British Law's rules on that matter. In the U.S. the cut off is 1 year from date of incident OR the date plaintiff became aware of the cause for the suit. If the later, they would certainly have to show evidence that they were only aware of the illegal behavior after the fact. I do believe that finding a case where one made the complaint in a timely manner and suceeded is not sufficient for this matter, and they would have to demonstrate that they had no clue the behavior was a violation of the law until the later point.</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"discrimination",
"statute-of-limitations",
"standing",
"equality-act-2010"
] |
What sort of lawyer can help enforce unconventional non-business oral contracts?
| 2 |
https://law.stackexchange.com/questions/88379/what-sort-of-lawyer-can-help-enforce-unconventional-non-business-oral-contracts
|
CC BY-SA 4.0
|
<p>Assume two individuals A and B make an oral contract, say A waives unpaid child support in exchange for B buying a house for their children to live at in perpetuity. Both parties follow through, but later B decides to sell the home and evict the children so B can solely financially benefit.</p>
<p>What sort of lawyer would have the expertise needed to help A enforce the oral contract effectively?</p>
| 88,379 |
[
{
"answer_id": 88398,
"body": "<p>Usually, a family law lawyer would handle a matter like this one.</p>\n<p>I am refraining from prejudging the outcome on the merits.</p>\n",
"score": 5
},
{
"answer_id": 88380,
"body": "<blockquote>\n<p>What sort of lawyer would have the expertise needed to help A enforce the oral contract effectively?</p>\n</blockquote>\n<p>None.</p>\n<p>That contract would not be enforceable even if it was in writing.</p>\n<p>Child support payments are mandated for the benefit of the children: A was not in the position to "waive" or "exchange" them in the first place .</p>\n<p>So, B is still liable to pay all the unpaid child support, and B solely owns the house they bought and so is free to sell it.</p>\n",
"score": 2
},
{
"answer_id": 88399,
"body": "<p>A family law lawyer would be able to advise <em>whether</em> such a term or contract could be enforced and if so, could also provide representation when trying to enforce it.</p>\n",
"score": 2
}
] |
[
"contract-law",
"civil-law"
] |
If a defendant is found guilty, they can usually appeal to a higher court. Is the plaintiff appealing an acquittal also allowed?
| 11 |
https://law.stackexchange.com/questions/88208/if-a-defendant-is-found-guilty-they-can-usually-appeal-to-a-higher-court-is-th
|
CC BY-SA 4.0
|
<p>Say Adam the accuser is taking Dave the Defendant to court. If Dave loses in his local district, I've heard that he can appeal the decision and be re-tried in a higher court (all the way to the Supreme Court, theoretically). But is the opposite also possible? I.e. if Dave is acquitted, is Adam allowed to re-try him in a higher court, hoping Dave will be found guilty this time?</p>
| 88,208 |
[
{
"answer_id": 88211,
"body": "<p>In the US, the prohibition against double jeopardy provides a <a href=\"https://en.wikipedia.org/wiki/Acquittal\" rel=\"noreferrer\">hard restriction</a> against re-trial and appeal of an acquittal. The government cannot appeal an acquittal (U.S. v. Sanges, 144 U.S. 310, Ball v. U.S., 163 U.S. 662), and a verdict of acquittal without judgment is also a bar to re-prosecution.\nThe exception is that if the defendant was never in jeopardy – the judge had been bribed – then there can be a new trial (Harry Aleman v. Judges of the Criminal Division, Circuit Court of Cook County, Illinois).</p>\n<p>However, Adam does not take Dave to court. Adam may make an accusation that motivates the prosecutor to file criminal charges.</p>\n<p>When Adam <em>sues</em> Dave (not a criminal matter), there is no acquittal or conviction, or guilt. There may be a finding of liability, or not. Either side can appeal to the top, as long as there is a legal basis for the appeal. If Adam is found not liable because the judge makes a legally erroneous ruling, if Dave objected properly to the ruling, Dave can appeal if successful, the court could then change its mind and find Adam liable.</p>\n",
"score": 36
},
{
"answer_id": 88210,
"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>In Canada, Attorneys General are limited in the grounds on which they may appeal an acquittal: the appeal must be based on a ground of law alone. See <em>Criminal Code</em>, s. 676(1)(a):</p>\n<blockquote>\n<p>The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal... against a judgment or verdict of acquittal ... of a trial court in proceedings by indictment <strong>on any ground of appeal that involves a question of law alone</strong></p>\n</blockquote>\n<p>See also <em>R. v. Chung</em>, <a href=\"https://canlii.ca/t/j61fn\" rel=\"noreferrer\">2020 SCC 8</a> (citations removed):</p>\n<blockquote>\n<p>[10] Under s. 676(1)(a), the Crown can only appeal an acquittal on a “question of law alone”. An appealable error must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it meets the standard of proof. Therefore, the Crown cannot appeal merely because an acquittal is unreasonable.</p>\n<p>[11] Errors of law arise, for example, where “the legal effect of findings of fact or of undisputed facts raises a question of law” and where there is “an assessment of the evidence based on a wrong legal principle”. These two types of errors are somewhat similar; they both address errors where the trial judge’s application of the legal principles to the evidence demonstrates an erroneous understanding of the law, either because the trial judge finds all the facts necessary to meet the test but errs in law in its application, or assesses the evidence in a way that otherwise indicates a misapprehension of the law.</p>\n</blockquote>\n<p>On the appeal from an acquittal, the court of appeal may (<em>Criminal Code</em>, s. 686(4)):</p>\n<ul>\n<li><p>dismiss the appeal,</p>\n</li>\n<li><p>order a new trial, or</p>\n</li>\n<li><p>when the trial was originally before a judge alone (rather than a judge and jury):</p>\n<blockquote>\n<p>enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.</p>\n</blockquote>\n</li>\n</ul>\n<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>The U.S. has a near absolute prohibition on appeals from acquittal, as described in <a href=\"https://law.stackexchange.com/a/88211/46948\">user6726's answer</a>.</p>\n",
"score": 8
},
{
"answer_id": 88248,
"body": "<p>If Adam is suing Dave in a <strong>civil</strong> trial, the answer is yes. (Technically, they would be Pam the Plaintiff and Robert the Respondent.) Whoever lost could file an appeal claiming that there was some kind of error in the trial, such as allowing evidence that should not have been allowed, or giving the jury incorrect instructions. (Just saying that the jury’s verdict was wrong, is not enough for an appeal to be taken seriously.) An appeals court might or might not then agree to hear the appeal. If it does, it would allow both sides to submit briefs arguing their case, and possibly give oral arguments where they answer the judges’ questions. This is not a new trial, there is no jury, and no new evidence gets introduced. However, the court of appeals might order a do-over trial with a new jury.</p>\n<p>If you are thinking of a <strong>criminal</strong> trial with a defendant, no. (With an asterisk.) The Fifth Amendment to the U.S. Constitution prohibits trying someone who has been acquitted again for the same offense, which is called “double jeopardy.” The defendant can appeal a conviction, but the prosecution cannot appeal an acquittal by a jury. (Also be aware: there are no private prosecutions in the United States. Criminal charges are always brought by the government.)</p>\n<h4>Edit:</h4>\n<p>I got some good comments discussing exceptions. Certain types of misconduct, such as bribing the judge to acquit, can get a not-guilty verdict overturned. The reasoning is, since the defendant was never in real jeopardy, there is no double jeopardy.</p>\n<p>While private prosecutions are not allowed in federal court (Linda R. S. v. Richard D., 410 U.S. 614 (1973)), there are a few state or local courts that allow them under some circumstances. North Carolina allows a private attorney to assist the public prosecutor, who remains in charge of the case; and Texas allows a local judge to appoint any competent attorney to prosecute when there is no district attorney available. But Adam the Accuser never gets to appeal.</p>\n",
"score": 5
},
{
"answer_id": 88312,
"body": "<p>No, you cannot be retried hoping for a conviction. Generally. There are a few funky exceptions:</p>\n<ul>\n<li>if jeopardy did not actually attach (you bribed the judge or jury)</li>\n<li>the trial never actually properly started (the jury was improperly empaneled or the oaths given to witnesses was incorrect, for example - extremely rare)</li>\n<li>you are going to be tried in a different jurisdiction (jeopardy only applies to the jurisdiction of the trial)</li>\n<li>if your acquittal was for a crime that has, post-trial, escalated.</li>\n</ul>\n<p>This last one requires a bit of explanation. Let's say you shoot someone and they are severely injured, but live. You are put on trial for attempted murder, and are acquitted. The person shot later dies due to the damage done by the shooting. You can be tried for murder, even though you were previously acquitted of attempted murder for the exact same event.</p>\n",
"score": 0
}
] |
[
"united-states",
"trial",
"appeal",
"double-jeopardy",
"acquittal"
] |
Change name and gender in Switzerland as a non-Swiss citizen
| 3 |
https://law.stackexchange.com/questions/88388/change-name-and-gender-in-switzerland-as-a-non-swiss-citizen
|
CC BY-SA 4.0
|
<p>So I live in Switzerland, but have British and Italian dual citizenship. I want to change my name and gender legally everywhere or at the very least on official documents here in Switzerland. I may be wrong but I think I would need to change both my UK and Italian IDs to be allowed to change the info on my C permit.</p>
<p>UK dual citizenships require the other citizenship to have the name and gender changed before changing it on the UK passport, so I need to change my Italian ID card first. Doing it abroad seems easy so that won't be an issue.</p>
<p>I'm not even 100% sure how to proceed to change an Italian ID card as I can barely find any info online on the steps required. But from the little I found, it seems like I need to go to court in Italy, and then pay a lawyer and a fee to change my name and gender. It doesn't seem like there are any dual citizenship limitations like the UK has. I should mention that I can't speak Italian very well too.</p>
<p><strong>Is there an easier way? Do I really need to do all this?</strong></p>
| 88,388 |
[
{
"answer_id": 88391,
"body": "<p><a href=\"/questions/tagged/switzerland\" class=\"post-tag\" title=\"show questions tagged 'switzerland'\" aria-label=\"show questions tagged 'switzerland'\" rel=\"tag\" aria-labelledby=\"switzerland-container\">switzerland</a></p>\n<p>You may <a href=\"https://www.bj.admin.ch/bj/fr/home/gesellschaft/zivilstand/faq/geschlechtsaenderung.html\" rel=\"nofollow noreferrer\">change your civil status information</a> as recorded by Switzerland as long as you are domiciled in Switzerland and your information is recorded in the Swiss civil status database.</p>\n<p>Your information is automatically registered in the Swiss civil database if you had a civil status event in Switzerland (birth, marriage, divorce, adoption). Otherwise, you have to apply to have your information registered first. The registration may need your civil status documents, i.e. birth certificates and documents related to marriages, divorces, changes in names, (translated, notarized and legalized if needed) and proof of your residency in Switzerland.</p>\n<p>Your name and gender, for civil purposes in Switzerland, then become what is recorded in the database. A certificate of your registered information can be issued.</p>\n<p>Despite the change in your official name and sex marker in Switzerland, your residence permit will have the same information as recorded in your passport (probably the Italian one, if you are exercising your rights as an EU citizen) on the front side, so the machine readable zones are consistent and facilitate border examinations. However, your official name in the Swiss registeration database may be reflected on the back in the observation field (see e.g. <a href=\"https://www.ge.ch/actualite/changement-pratique-matiere-saisie-noms-autorisations-sejour-etablissement-30-09-2021\" rel=\"nofollow noreferrer\">Geneva</a>).</p>\n<p>Having mismatching names and gender markers on different offical documents of course may come with problems; but as far as Swiss authorities are concerned, you have the right to make changes to your civil information according to Swiss law as a Swiss resident.</p>\n<p>Additionally, difficulties can still arise since the changes are new and it is not unheard of that an employee may ignore (deliberately or ignorantly) federal guidelines, especially if you present a more "complicated" case. You may find helpful to contact your local trans* or LGBTQ+ organizations who often have social and legal contacts that may help you navigate through the bureaucracy.</p>\n",
"score": 1
}
] |
[
"united-kingdom",
"name",
"switzerland",
"italy",
"transgender"
] |
Lethal force to defend killer dogs?
| -9 |
https://law.stackexchange.com/questions/88347/lethal-force-to-defend-killer-dogs
|
CC BY-SA 4.0
|
<p>Let's consider the following scenario, taking place in an American state where self defense in defense of property and castle laws are in effect.</p>
<p>An intruder onto a man's property is mauled to death by his dogs. The man promptly lodges an application for an emergency injunction against the local/state animal control services, seeking to prohibit the confiscation and destruction of his dogs.</p>
<p>Prior to this application being heard by a judge, an animal control officer arrives at the property and is then shot dead. During the ensuing police standoff, the man declares that he was acting in self defence, that he will peacefully surrender if the emergency injunction he applied for is approved and a copy of the approval is delivered to him by his lawyer, and that he is willing to die fighting to protect his dogs. In the interests of preventing unnecessary bloodshed, the judge approves the injunction, and the man does surrender peacefully.</p>
<p>At the resulting trial, he advances the following arguments:</p>
<ol>
<li>Any intruder on his property has unknown intentions, and must be assumed to be there to murder him and his family. If he had been present, the initial intruder would have been shot dead by the man, and it would have been self-defense. As such, the intruder being killed by his dogs was self-defense - the dogs were simply the weapon he used to defend the lives of his family, no different than an autonomous killer drone.</li>
<li>The dogs should not be destroyed because they were acting in accordance with their training to defend the property from intruders, and once you cross the property line, you have forfeited your right to continue living - and they pose no additional danger to the community beyond that he himself does.</li>
<li>The animal control officer was there to kill his dogs. His dogs were members of his family, and he was acting in self-defense to protect the lives of his family.</li>
<li>Even if that argument doesn't fly, he was still acting to defend his property (his dogs), so it was still self-defense.</li>
<li>Once the threat to the lives of members of his family (and/or property) was averted, he peacefully surrendered.</li>
</ol>
<p>What would likely result at trial? Would he be able to successfully argue self-defense? Would he be able to save the life of his dogs?</p>
| 88,347 |
[
{
"answer_id": 88390,
"body": "<ol>\n<li><p>That is not a valid assumption. Many states have laws that let you presume someone is a threat to your life if they <em>forcibly</em> enter your <em>house</em>. Simple trespass on your land does not let you reasonably presume someone is a murderer. An autonomous killer drone is not a comparison you want to make: those may be illegal entirely, and are likely to seriously hurt any claim of justifiable force.</p>\n</li>\n<li><p>“You forfeit your right to live when you set foot on my property” is not justifiable. If the dogs are trained to be a hazard to the community, that’s an argument <em>in favor</em> of having them confiscated and destroyed.</p>\n</li>\n<li><p>Dogs are not people. Under normal circumstances, they cannot be protected under self-defense or the defense of others. Those doctrines only apply when a <em>person</em> is in danger.</p>\n</li>\n<li><p>Deadly force is sometimes allowed to protect property, but this tends to be strictly limited. To start with, you can only ever use force to prevent <em>illegal</em> damage to property. If your concern is “this animal control officer will destroy my dogs within the scope of their duty,” that’s not protecting against an illegal use of force. Deadly force in defense of property is also normally limited to particular crimes that are inherently dangerous, like arson, robbery, or burglary. Even in Texas, simple theft only justifies deadly force during the nighttime. Deadly force is also not justifiable if there were reasonable other options. Shooting an animal control officer is unlikely to be the only way to temporarily stop them from destroying a dog.</p>\n</li>\n<li><p>Threatening violence in order to influence a judge’s decision is <em>terrorism</em>. This hypothetical man is a terrorist. He may well find himself on death row for murder, but he’s also going to face separate charges for terrorism.</p>\n</li>\n</ol>\n",
"score": 3
}
] |
[
"united-states",
"self-defense",
"animals"
] |
I got a copyright infringement notice from my ISP. Am I in trouble?
| -4 |
https://law.stackexchange.com/questions/88371/i-got-a-copyright-infringement-notice-from-my-isp-am-i-in-trouble
|
CC BY-SA 4.0
|
<p>I received an email from my ISP(Spectrum) saying that I received a copyright infringement notice. I read through the whole thing, but I don’t know what to do next. Am I in trouble, do I need to pay, or is it just a warning? This is my 1st notice.</p>
| 88,371 |
[
{
"answer_id": 88374,
"body": "<p>Your ISP may have notified you of an allegation of copyright infringement – a "DMCA take-down" notice. This means that entity X sent them a legal notice claiming that certain content in the ISP's domain infringes X's copyright. The ISP (who has the records of who has what) then tells you about this, and they take down the material. If you believe that X is mistaken (e.g. if you believe that you do have the right to distribute the material) you can file a counter-claim. The form of the counter-claim is described in <a href=\"https://www.law.cornell.edu/uscode/text/17/512#g\" rel=\"nofollow noreferrer\">17 USC 512(g)(3)</a>.</p>\n<p>DMCA takedown does two things. Primarily it gives the ISP the opportunity to not be sued for contributory\ninfringement, by taking down allegedly contributing material, once notified. Second, it gives you an opportunity to dispute the claim. If you dispute the claim, the ISP informs X of the dispute, waits 10-14 days, and then if X doesn't inform then that they are suing you, then will restore the material.</p>\n<p>If you have infringed copyright, you can be sued, no matter how you respond – DMCA only protects the ISP, not the infringer. Your ISP has nothing to do with paying anything to anyone; watch for a letter from X's attorney which demands payment, and discuss it with your lawyer.</p>\n",
"score": 1
},
{
"answer_id": 88384,
"body": "<p>Copyright owners monitor BitTorrent. They either seed small parts of their own content (e.g. 5% of the file), or they try to download their own content and see who seeds to them. They log the IP addresses of who tried to download, or who was seeding. (identifying seeders is much more potent, and <strong>Bittorrent clients seed by default</strong>). If you don't understand all that, that's where you went wrong.</p>\n<p>There's been a lot of awkward precedent (I don't necessarily mean <em>case law</em> precedent) on what to do about this situation. The media industry doesn't want to be suing millions of Americans but does want piracy to stop. The ISPs don't want to narc out their own customers but don't want piracy happening either. One arrangement I commonly see is that <strong>the first time</strong>, the ISP refuses to tell the copyright holder who you are. Instead, they send you a sternly worded letter saying "make it stop, or else". <em>If it continues, the gloves come off and they either hand over your identity, and/or cancel your internet service and ban you for awhile</em>.</p>\n<p>Read the letter <em>carefully</em> (hard do do in all the excitement, I know) and see what it actually says.</p>\n<p>If the letter is saying "stop doing it or else", then stop doing it and do not answer the letter. Especially, do not contact the copyright holder. I wouldn't contact the ISP either. If you still are filled with the urge to do <em><strong>something</strong></em>, then contact a local attorney who will be your representative. Never seek advice from an opponent's attorney.</p>\n",
"score": 1
},
{
"answer_id": 88387,
"body": "<h2>Three options</h2>\n<h3>1 - It's a DMCA</h3>\n<p>Some copyright holder contacted your ISP with an IP (and most likely a time stamp) and said something like: "This connection at this time is uploading, offering, or downloading material we have copyrighted. Make it stop under DMCA." Of course much more elaborate. The ISP in turn looked up who had the IP at that time and sent you a letter "Hey, stop what you do there, or you'll be in trouble."</p>\n<h3>2 - It's also a Cease and Desist.</h3>\n<p>The copyright holder might have sent the ISP a letter worded differently. Instead of (just) pointing to the DMCA, they might have said "Make it stop under DMCA and tell them to keep it stopped, at which point we're even. If it persists or returns, we come back and demand the person's name to sue." In effect, they ask the ISP to deliver a Cease and Desist to the subscriber. That's not totally unheard of, as such can reduce the attorney costs for the copyright holder over many cases as the number of repeat infringers is lower.</p>\n<h3>3 - Are <em>you</em> the infringer or is someone using your IP?</h3>\n<p>There's a case where someone had an unsecured network and <em>someone</em> who was not the subscriber used the network to download and distribute stuff with a bit-torrent. The Bit-Torrent protocol is set up in a way that to download you <em>have</em> to upload parts you already have, so downloading with it automatically distributes the file.</p>\n<p>In the case you are <strong>not</strong> using a torrent and are just the subscriber and are sued, there was a case where the subscriber was sued... and won, because the suing party could not prove that they were the infringing party. Yes, I am talking about <em>Cobbler v Gonzales</em> from the 9th Circuit (<a href=\"https://dlbjbjzgnk95t.cloudfront.net/1077000/1077264/17-35041.pdf\" rel=\"nofollow noreferrer\">Cobbler Nevada, LLC v. Thomas Gonzales, Case No. 17-35041 (9th Cir. Aug. 27, 2018)</a>). Sometimes, letters from the ISPs are worded in such a way as to tell you "Goddangit, someone tried to subpoena your IP. Make your network secure and make sure that nobody uses your IP to infringe." <strong>However</strong> only if you are not the downloading/distributing party, you can point to this case.</p>\n",
"score": 0
}
] |
[
"copyright-notice"
] |
Is there a jurisdiction where child pornography is not illegal?
| 2 |
https://law.stackexchange.com/questions/27031/is-there-a-jurisdiction-where-child-pornography-is-not-illegal
|
CC BY-SA 3.0
|
<p>There is somewhat <a href="https://fc18.ifca.ai/preproceedings/6.pdf" rel="nofollow noreferrer">recent research (PDF)</a> which has found there to be at least links to child pornography on the bitcoin blockchain with also one one explicity file on the blockchain which may be classified as actual child pornography.</p>
<p>Now, assume there is actually a clear and indisputable case of child pornography on the bitcoin blockchain. This means that everyone who a) mines bitcoins and b) verifies the blockchain themselves have a copy of this file on their machine. </p>
<p>This raised (at least for me) the interesting question:<br>
<strong>Is there any country / jurisdiction in which it is not illegal to own child pornography (on your personal computer)?</strong></p>
| 27,031 |
[
{
"answer_id": 27034,
"body": "<p>According to <a href=\"http://chartsbin.com/view/q4y\" rel=\"nofollow noreferrer\">this chart i googled</a> and the associated table, child porn is actually not explicitly illegal in most of the world. Basically, a bunch of countries in Africa, and a couple in Latin America and Asia, don't appear to regulate kiddie porn at all.</p>\n\n<p>A couple of others (like Argentina, Russia, and South Korea) allow possession, but not distribution.</p>\n\n<p>A couple of countries protect \"virtual\" kiddie porn (cartoons, computer renderings, etc where no actual child is being abused). The US is among these. (Pretty much has to be, due to the First Amendment.) Obscenity laws may apply, though.</p>\n",
"score": 5
}
] |
[
"children",
"pornography"
] |
Other historical forms of punishment besides serving time or money?
| 6 |
https://law.stackexchange.com/questions/88298/other-historical-forms-of-punishment-besides-serving-time-or-money
|
CC BY-SA 4.0
|
<p>I am currently undertaking a personal research project to create a comprehensive list of all forms of punishment that have been meted out by legal systems across history.</p>
<p>Common forms of punishment include serving time or paying fines; less common and more violent forms of punishment include losing a limb or life.</p>
<p>I am curious to know if there are any other forms of punishment, even if only used in the past. Can anyone share any information or examples of such punishments that they may be aware of? For example, a person being forgiven if they recite some religious ritual or agree to marry someone else.</p>
| 88,298 |
[
{
"answer_id": 88327,
"body": "<h2><a href=\"https://www.amazon.com.au/Past-Foreign-Country-Revisited-dp-0521616859/dp/0521616859/ref=dp_ob_title_bk\" rel=\"nofollow noreferrer\">The past is a foreign country</a>; they do things differently there</h2>\n<p>When we think of crime and punishment, we automatically think of a powerful central and secular government with (relatively) clear laws handing down judicial sanctions - usually of imprisonment or financial penalties but increasingly including home detention, community service, or restitution to the victim.</p>\n<p>This is all the product of post-enlightenment thinking and would be largely unrecognisable (and stupid) to our ancestors. We don't think as they did, and we struggle to get into their mindset.</p>\n<p>This cuts both ways - we are equally horrified by the Roman collective punishment of <a href=\"https://en.wikipedia.org/wiki/Decimation_(punishment)\" rel=\"nofollow noreferrer\">decimation</a> as we are by the fact that a Germanic murderer merely needed to pay a <a href=\"https://en.wikipedia.org/wiki/Weregild\" rel=\"nofollow noreferrer\">weregild</a>, the price of which was determined by the social rank of the victim - with a discount for Welshmen in Anglo-Saxon law.</p>\n<h2>Categories of Punishment</h2>\n<p>All punishments fall into one or more broad categories listed here in decreasing order of severity according to the Western tradition.</p>\n<h4><a href=\"https://en.wikipedia.org/wiki/Damnation\" rel=\"nofollow noreferrer\">Damnnation</a></h4>\n<p>Because we are a largely secular society, we don't think of this as being a punishment for crime; but there was no distinction between sin and crime in the past.</p>\n<p>The beauty of this system is that no crime goes undetected or unpunished. Whether you get your punishment in <a href=\"https://en.wikipedia.org/wiki/Purgatory\" rel=\"nofollow noreferrer\">Purgatory</a>, in front of the <a href=\"https://en.wikipedia.org/wiki/Assessors_of_Maat\" rel=\"nofollow noreferrer\">Assessors of Maat</a>, in <a href=\"https://en.wikipedia.org/wiki/Valley_of_Hinnom_(Gehenna)\" rel=\"nofollow noreferrer\">Gehinnom</a>, or <a href=\"https://en.wikipedia.org/wiki/Mictl%C4%81n\" rel=\"nofollow noreferrer\">Mictlān</a>, everybody gets what they deserve.</p>\n<p>This was not just a matter between a person and god - religion was culture, culture was religion, and both were the law. For your crimes, the priesthood could make things worse in the afterlife; or for your piety, they could make things better.</p>\n<p>In the Christian tradition, we have <a href=\"https://en.wikipedia.org/wiki/Excommunication\" rel=\"nofollow noreferrer\">excommunication</a>, which cuts you off from social life (a form of ostracisation) but also put your soul in peril - if you died in this state, you went straight to hell, no passing <a href=\"https://en.wikipedia.org/wiki/Purgatory\" rel=\"nofollow noreferrer\">Purgatory</a>, no collecting $200. This could be a collective punishment, called an <a href=\"https://en.wikipedia.org/wiki/Interdict\" rel=\"nofollow noreferrer\">interdict</a>, where the clergy would be prohibited from performing those rituals <em>required</em> to make one right with God, such as christenings, marriages, and the last rites.</p>\n<p>We also have Hell as the punishment for an unrepented <a href=\"https://en.wikipedia.org/wiki/Mortal_sin\" rel=\"nofollow noreferrer\">mortal sin</a>, most often suicide, but also unrepentant capital felons, where the Church would not perform a burial.</p>\n<p>In the same vein, post-mortem dismemberment, such as being <a href=\"https://en.wikipedia.org/wiki/Hanged,_drawn_and_quartered\" rel=\"nofollow noreferrer\">hung, drawn and quartered</a>, which, in a Christian tradition that looked to the literal resurrection of the body, meant that you could never be resurrected. Apparently, a God that created the Universe couldn't stick people back together. This belief faded in the wake of the Great War when the widespread use of artillery meant there were hundreds of thousands of Christian dead in bits so small that not only couldn't God stick them together again, they couldn't be identified.</p>\n<h4><a href=\"https://en.wikipedia.org/wiki/Capital_punishment\" rel=\"nofollow noreferrer\">Execution</a></h4>\n<p>A time-honoured staple for anything from murder, treason, and drug trafficking to <a href=\"https://en.wikipedia.org/wiki/Heresy\" rel=\"nofollow noreferrer\">worshipping in the wrong way</a> or, in some parts of the world, being the wrong race in the presence of a police officer.</p>\n<p>Just about any way you can imagine of deliberately ending a person's life has, at some time and place, been a method of execution.</p>\n<p>Modern usage has tended towards the elimination of suffering, which gave us lethal injection, firing squad, the electric chair, long-drop hanging, the guillotine, and, in the more advanced parts of the world, the elimination of the death penalty altogether. Historical methods tended to include torture, prolongation, and humiliation as a deliberate part of the execution "such as the breaking wheel, keelhauling, sawing, hanging, drawing, and quartering, burning at the stake, flaying, slow slicing, boiling alive, impalement, mazzatello, blowing from a gun, schwedentrunk, and scaphism. Other methods which appear only in legend include the blood eagle and brazen bull." And, of course, crucifixion.</p>\n<p>This can be direct punishment of the perpetrator or, for collective crimes, execution through drawing lots or decimation.</p>\n<p>Human sacrifice is generally not execution as it was usually not a punishment for a crime but a great honour for the sacrifice - even if the methods came from the same playbook.</p>\n<h4><a href=\"https://en.wikipedia.org/wiki/Mutilation\" rel=\"nofollow noreferrer\">Mutilation</a></h4>\n<p>This includes one-for-one maiming, the most famous being Exodus 21:23–27 "If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot." However, this was also a feature of Babylonian, Greek, Roman, and Islamic law.</p>\n<p>It also includes removing the hands of thieves, the genitals of adulterers, and the tongues of blasphemers. Blinding was also a common punishment, often politically driven, because, throughout many parts of the world, a blind person could not inherit.</p>\n<p>It also includes branding, scarification, tattooing, or mutilation of the ears or nose, but this is primarily intended as ostracisation to mark the criminal permanently (see ostracisation and humiliation below).</p>\n<p>Depending on the technique, mutilation may effectively be capital punishment. Also, some forms of corporal punishment, like flagellation and caning, may permanently scar their victim, although that is not their primary purpose.</p>\n<h4><a href=\"https://en.wikipedia.org/wiki/Ostracism\" rel=\"nofollow noreferrer\">Ostricisation</a> and <a href=\"https://en.wikipedia.org/wiki/Public_humiliation\" rel=\"nofollow noreferrer\">Humiliation</a></h4>\n<p>Humans are social creatures, and exclusion from or falling in standing in society is particularly devastating - particularly in a pre-modern society when ostracisation often meant death.</p>\n<p>Excommunication has already been mentioned. We also have being declared an outlaw - this wasn't, as it largely is now, a synonym for criminal - it was placing someone beyond the protection of the law, effectively making them fair game for anything anyone felt like doing to them. Exile or banishment was another punishment usually reserved for those of high standing, like nobles or royalty.</p>\n<p>Forcing people to be publicly exposed and subject to verbal and physical abuse, such as through the stocks or pillory, was common. Having convicted people bear a <em>mark of shame</em> or a visible mark of their crime (see mutilation above) was also common.</p>\n<p>Arguably, maintaining criminal records and sex offender registers is a form of humiliation, particularly if it is made public.</p>\n<h4><a href=\"https://en.wikipedia.org/wiki/Penal_labour\" rel=\"nofollow noreferrer\">Servitude</a></h4>\n<p>From slavery, to penal servitude, to indentured service, to transportation, to modern prison workshops, if you can make someone pay for their own punishment, people will find a way to do it.</p>\n<p>However, imprisonment per see has only been considered a punishment since early modern times and came in with such strange notions as reform (hence reformatory school) and penitence (hence penitentiary). Before then, a prison was a place where you kept people while <em>awaiting</em> trial or punishment - or people who were just too damn dangerous to be let loose.</p>\n<h4><a href=\"https://en.wikipedia.org/wiki/Corporal_punishment\" rel=\"nofollow noreferrer\">Corporal Punishment</a></h4>\n<p>Caning, whipping, hitting with sticks, hitting with nettles, breaking bones, holding people in painful positions, hitting with the hand, etc.</p>\n<p>These have all been (and some still are) judicial punishments as well as methods of maintaining discipline in children and military forces.</p>\n<h4><a href=\"https://en.wikipedia.org/wiki/Fine_(penalty)\" rel=\"nofollow noreferrer\">Financial</a></h4>\n<p>These are basically two types: fines paid to the government, or restitution paid to the victim or victim's family.</p>\n",
"score": 3
}
] |
[
"criminal-law",
"legal-history",
"reference-request"
] |
What features are used to distingish between investing and running a money transmitting business?
| 1 |
https://law.stackexchange.com/questions/88357/what-features-are-used-to-distingish-between-investing-and-running-a-money-trans
|
CC BY-SA 4.0
|
<p><a href="https://law.stackexchange.com/q/88151">This question</a> about the risk of money laundering prosecution one could face using decentralized cryptocurrency exchanges is answered by "Generally, local laws will define concepts like "money transmitting business" and require individuals engaged in these businesses to obtain a license and comply with similar KYC and reporting obligations to a bank."</p>
<p>I believe this is distinct from the established practice of storing ones savings in financial instruments and trading these instruments which has existed among the wealthy for as long as financial markets have existed.</p>
<p>What feature of the activity are considered in distinguishing between these two activities? Some things that could be used occur to me, that could have some very different outcomes:</p>
<ul>
<li>Absolute amount of money involved in activity
<ul>
<li>While this may appear the most obvious distinguishing feature, if it was then anyone properly rich would have to register before anyone using LocalBitcoins.</li>
</ul>
</li>
<li>Proportion of income from activity
<ul>
<li>It would make sense that someone who derives the majority of their income from an activity would be engaged in business, but if this was the distinguishing feature then people who had their retirement income in such instruments would become businesses on retirement</li>
</ul>
</li>
<li>Nature of other participants
<ul>
<li>I had assumed that one would be most liable if one is using a decentralized exchange whee no one is doing KYC compared to doing such things on a large centralized exchange such as Binance, but is that true? If the question is not "could you facilitate money laundering" but "are you running a business" one could say that using a software tool that allows two individuals to communicate is less "businessy" that interacting with a multi billion dollar corporation. In <a href="https://www.justice.gov/usao-sdca/pr/man-sentenced-fraud-and-operating-unlicensed-money-transmitting-business" rel="nofollow noreferrer">United States v. Rockcoons</a>, would Rockcoons have been better or worse off if LocalBitcoins had at that time implemented <a href="https://localbitcoins.com/guides/verification-guide" rel="nofollow noreferrer">their KYC rules</a>?</li>
</ul>
</li>
<li>Nature of the business
<ul>
<li>One may have though that buying actual assets is more investing, and buying options is more "businessy". However this would make many users of centralized exchanges businesses as margin trading is much more prevalent their, while LocalBitcoin users were dealing in the assets directly.</li>
</ul>
</li>
</ul>
| 88,357 |
[
{
"answer_id": 88358,
"body": "<p>The difference between running a <strong>business</strong> and <strong>investing</strong> is often important in tax and financial regulatory law. It is always an evaluative judgment, and it is impossible to provide a fixed list of relevant criteria, not least because money launderers and tax evaders would use this to develop creative new strategies. However the factors you have listed are usually relevant, in addition to specific statutory criteria.</p>\n<p>If the law being interpreted has the purpose of preventing money laundering, your question "could [your activity] facilitate money laundering" will be relevant to the interpretation of "business." To launder money effectively, one needs to be able to move larger quantities of money than an ordinary person would have access to. So the total <strong>cashflow</strong> involved is an important consideration.</p>\n<p>The federal prohibition on unlicensed money transmitting businesses in <a href=\"https://www.law.cornell.edu/uscode/text/18/1960\" rel=\"nofollow noreferrer\">18 U.S.C. 1960</a> picks up existing State laws that require a "money transmitting license." It is not practical to review all such laws, but the statute also says that:</p>\n<blockquote>\n<p>the term “money transmitting” includes transferring funds <strong>on behalf of the public</strong> by any and all means including but not limited to transfers within this country or to locations abroad by wire, check, draft, facsimile, or courier …</p>\n</blockquote>\n<p>While an investor might buy or sell assets from the public, they would be unlikely to send money on behalf of the public. However this definition is inclusive, not exhaustive. The related definition of "money transmitter" in <a href=\"https://www.law.cornell.edu/cfr/text/31/1010.100#ff_5\" rel=\"nofollow noreferrer\">31 C.F.R. 1010.100(ff)(5)</a> includes another exception which would protect someone who is transmitting money to a third party just to buy something off them:</p>\n<blockquote>\n<p>The term “money transmitter” shall not include a person that only … (F) Accepts and transmits funds only <strong>integral to the sale of goods or the provision of services</strong>, other than money transmission services, by the person who is accepting and transmitting the funds.</p>\n</blockquote>\n<p>Also of relevance to individual investors is the exception in <a href=\"https://www.law.cornell.edu/cfr/text/31/1010.100#ff_8\" rel=\"nofollow noreferrer\">31 C.F.R. 1010.100(ff)(8)</a>:</p>\n<blockquote>\n<p>For the purposes of this section, the term “money services business” shall not include … (iii) A natural person who engages in an activity identified in paragraphs (ff)(1) through (ff)(5) of this section on an <strong>infrequent</strong> basis and <strong>not for gain or profit</strong>.</p>\n</blockquote>\n<p>FinCEN has published a detailed explanation of these provisions in a memorandum on the <a href=\"https://www.fincen.gov/sites/default/files/2019-05/FinCEN%20Guidance%20CVC%20FINAL%20508.pdf\" rel=\"nofollow noreferrer\">Application of FinCEN’s Regulations to Certain Business Models Involving Convertible Virtual Currencies</a> (May 9, 2019). But they don't do much more than identify and restate the applicable regulations:</p>\n<blockquote>\n<p>A natural person operating as a P2P exchanger that engages in money transmission services involving real currency or CVCs must comply with BSA regulations as a money transmitter acting as principal. This is so regardless of the regularity or formality of such transactions or the location from which the person is operating. However, a natural person engaging in such activity on an infrequent basis and not for profit or gain would be exempt from the scope of money transmission.</p>\n</blockquote>\n<p>There is an important, and usually obvious, difference between an investor who profits from a change in asset prices (losing money to commissions on each trade), and a person in the business of moving money, who is neutral on the asset price and earns money from spreads or fees on every transaction.</p>\n",
"score": 2
}
] |
[
"cryptocurrency",
"money-laundering",
"money-service"
] |
Is online content considered to be "published" to the whole world?
| 3 |
https://law.stackexchange.com/questions/88361/is-online-content-considered-to-be-published-to-the-whole-world
|
CC BY-SA 4.0
|
<p>Suppose, as a resident of your own country, you put some content online. Given that everyone online in the world can, potentially, view it, does that mean that you have, from a legal point of view, "published" it in every country of the world -- and are thus subject to the particular copyright laws of every country in the world?</p>
| 88,361 |
[
{
"answer_id": 88362,
"body": "<p>Yes, except for the part where you say "thus". Copyright protection isn't limited to published works, though in the past this was the case with US law. Current US law <a href=\"https://www.law.cornell.edu/uscode/text/17/101\" rel=\"nofollow noreferrer\">defines publication</a> as</p>\n<blockquote>\n<p>the distribution of copies or phonorecords of a work to the public by\nsale or other transfer of ownership, or by rental, lease, or lending.\nThe offering to distribute copies or phonorecords to a group of\npersons for purposes of further distribution, public performance, or\npublic display, constitutes publication. A public performance or\ndisplay of a work does not of itself constitute publication.</p>\n</blockquote>\n<p>Web distribution is one way to distribute a protected work. The distinction between published and unpublished works matters in terms of registration requirements, it figures into the question of the nationality of the author, the duration of protection for a work for hire and (pseudo)anonymous works, as well as the duration of protection for works created before January 1, 1978 but first published between then and January 1, 2003, and so on. The US Copyright office provides guidance that derives from court cases, and they have <a href=\"https://www.copyright.gov/comp3/chap1900/ch1900-publication.pdf\" rel=\"nofollow noreferrer\">this</a> to say about published vs. unpublished. They give as an example of publication ("Offering to Distribute Copies or Phonorecords to a Group of Persons")</p>\n<blockquote>\n<p>Publication occurs when copies of a photograph are offered to clients,\nincluding but not limited to newspapers, magazines, agencies, wire\nservices, and websites with a license permitting further distribution\nor display of the photograph.</p>\n</blockquote>\n<p>also</p>\n<blockquote>\n<p>An offer by the copyright owner on a public website to purchase and\ndownload an app that they developed and made accessible on that\nwebsite constitutes publication of that app.</p>\n</blockquote>\n<p><a href=\"https://wipolex-res.wipo.int/edocs/lexdocs/laws/en/de/de236en.pdf\" rel=\"nofollow noreferrer\">German copyright law</a> makes mention of "publication" as well, for instance</p>\n<blockquote>\n<p>The right of publication and of exploitation of the work accrues\njointly to the joint authors; alterations to the work shall be\npermissible only with the consent of the joint authors. However, a\njoint author may not refuse his consent to publication, exploitation\nor alteration contrary to the principles of good faith. Each joint\nauthor shall be entitled to assert claims arising from violations of\nthe joint copyright; he may, however, demand performance only to all\nof the joint authors.</p>\n</blockquote>\n<p>§6 says that</p>\n<blockquote>\n<p>(1) A work shall be deemed to have been published when it has been\nmade available to the public with the consent of the rightholder. (2)\nA work shall be deemed to have been released when copies of the work\nhave been offered, with the rightholder’s consent, to the public or\nbrought to the market after their production in sufficient quantity.\nAn artistic work shall also be deemed to have been released when the\noriginal or a copy of the work has been made permanently available to\nthe public with the consent of the rightholder.</p>\n</blockquote>\n<p>One would have to inquire into the specifics of German law to know if "putting one copy on a website" constitutes being brought to the market after production in sufficient quantity.</p>\n",
"score": 3
}
] |
[
"copyright"
] |
Do I have any responsibility over 3rd party data collection?
| 3 |
https://law.stackexchange.com/questions/88348/do-i-have-any-responsibility-over-3rd-party-data-collection
|
CC BY-SA 4.0
|
<p>I have a little game that does not collect any user data whatsoever, nor does it resell it or anything else. I do employ Google Ads, and the game is planned to be released on the <a href="https://play.google.com/" rel="nofollow noreferrer">Google Play Store</a>.</p>
<p>I do not know what user data Google has collected, and I have absolutely no control over what they will do with it. Do I have any responsibility for it? If so, then to be honest I have no idea what they collected, and I wouldn't know how to list it even if I wanted to.</p>
<p>Or could I just say something like, "Third-Party Data Collection has nothing to do with me" in my Privacy Policy?</p>
| 88,348 |
[
{
"answer_id": 88351,
"body": "<p>Simply stating that third-party collection of data has nothing to do with you is not sufficient in your Privacy Policy. You are responsible for ensuring compliance with applicable laws and regulations related to data privacy, including providing clear and accurate disclosures about data collection and use in your <a href=\"https://en.wikipedia.org/wiki/Privacy_policy\" rel=\"nofollow noreferrer\">Privacy Policy</a>. While you may not have direct control over the practices involved in the data collection process of third parties, you still have a responsibility to inform users about these practices and obtain their consent as necessary.</p>\n<p>You can include a statement in your Privacy Policy about the use of third-party services like <a href=\"https://policies.google.com/privacy?hl=en-US\" rel=\"nofollow noreferrer\">Google Ads</a>, and inform users that these services may collect data and that you have no control over the data collection or use practices of these third parties.</p>\n",
"score": 4
}
] |
[
"privacy"
] |
Is it common to provide evidence via email to a lawyer?
| -2 |
https://law.stackexchange.com/questions/88321/is-it-common-to-provide-evidence-via-email-to-a-lawyer
|
CC BY-SA 4.0
|
<p>Do clients and attorneys typically communicate evidence via e-mail or cloud-based sharing services (i.e. One Drive or Dropbox)?</p>
<p>If so, are these safe for confidential material? It this a common way to share evidence to a lawyer?</p>
<p>If so, is there a particular reason why as my workplace doesn't consider such methods to be adequately secure for sharing confidential information.</p>
| 88,321 |
[
{
"answer_id": 88328,
"body": "<h2>Your evidence is not confidential material</h2>\n<p>It will be disclosed to the other party and the court. Indeed it must be disclosed - even if it hurts your case.</p>\n<p>Evidence is different from communications with your lawyer about the case. These are privileged and unless disclosed to the other party or the court with a waiver of privilege can’t be used even if they get them somehow.</p>\n<h2>Electronic transfer is how the world works</h2>\n<p>Lawyers and courts routinely deal with each other using email and file sharing services. Most courts actually require electronic filing.</p>\n",
"score": 2
}
] |
[
"privacy",
"evidence",
"lawyer",
"confidentiality"
] |
UK Spring Water Regulations
| 4 |
https://law.stackexchange.com/questions/88353/uk-spring-water-regulations
|
CC BY-SA 4.0
|
<p>I just saw a post talking about how various brands of spring water in the UK are not meeting regulations because they are bottled at a different location to the spring.</p>
<p>Looking online, most sites (including <a href="https://www.gov.uk/guidance/spring-water-how-to-produce-and-label" rel="nofollow noreferrer">https://www.gov.uk/guidance/spring-water-how-to-produce-and-label</a>) specify that "bottling must take place at the spring or borehole", with some linking to the legislation for England:</p>
<p><a href="https://www.legislation.gov.uk/uksi/2007/2785/contents" rel="nofollow noreferrer">The Natural Mineral Water, Spring Water and Bottled Drinking Water (England) Regulations 2007</a></p>
<p>However, while I know my legal speak isn't very good, I just can't find where in that document it explicitly says that spring water must be bottled at source?</p>
<p>Schedule 10 (the most obvious place) just seems to say it must be extracted from spring, not altered, and meet Schedule 2&4. Those two schedules seems to mainly just cover the requirements for the water to be legally considered mineral/spring, but don't cover bottling.</p>
<p>Is someone able to point out where in the regulations it states that the water must be bottled at source?</p>
| 88,353 |
[
{
"answer_id": 88356,
"body": "<p><a href=\"/questions/tagged/england\" class=\"post-tag\" title=\"show questions tagged 'england'\" aria-label=\"show questions tagged 'england'\" rel=\"tag\" aria-labelledby=\"england-container\">england</a></p>\n<p>Admittedly it's not very clear, but paragraph 5 of <a href=\"https://www.legislation.gov.uk/uksi/2007/2785/schedule/4?timeline=false\" rel=\"nofollow noreferrer\">Schedule 4</a> restricts the use of anything else apart from the resulting consumers' bottles, ergo bottling has to take place at the point of extraction (Subject to sub-para 3):</p>\n<blockquote>\n<p>5.—(1) Subject to sub-paragraphs (2) and (3), <strong>water must not be transported in containers other than those authorised for distribution to the ultimate consumer</strong>.</p>\n<p>(2) [<em>omitted</em>]</p>\n<p>(3) Water distributed to the ultimate consumer in a bottle marked or labelled with the description “spring water” may be transported from the spring to the bottling plant in a container which is not for distribution to the ultimate consumer if, on or before 13th December 1996, water from that spring was so transported.</p>\n</blockquote>\n",
"score": 3
}
] |
[
"united-kingdom",
"regulations",
"legislature",
"water"
] |
Why are app mods often illegal, but Chrome extensions are seemingly not?
| 2 |
https://law.stackexchange.com/questions/87374/why-are-app-mods-often-illegal-but-chrome-extensions-are-seemingly-not
|
CC BY-SA 4.0
|
<p>It seems that app mods, such as for games, are generally considered to be derivative works and thus <a href="https://odinlaw.com/who-owns-my-game-mod/#:%7E:text=At%20their%20core%2C%20game%20mods,created%20is%20likely%20copyright%20infringement." rel="nofollow noreferrer">illegal</a>. Chrome extensions, though, don't have the same reputation, even for the well-known extensions that modify all sites by default. Is this modified user experience on copyrighted sites not a derivative work? Vimium, for example, modifies the navigation experience and is enabled for all by sites by default. Grammarly, as another example, modifies text fields when a user is typing into them. Grammarly also makes a lot of money, which it seems like would open it up further to litigation.</p>
<p>How is it that distributing a mod of a copyrighted desktop app seems to be generally illegal, whereas distributing a Chrome extension that modifies copyrighted sites is not generally discussed as illegal?</p>
| 87,374 |
[
{
"answer_id": 87384,
"body": "<h2>Because <a href=\"https://policies.google.com/terms\" rel=\"nofollow noreferrer\">Google</a> expressly allows it</h2>\n<p>Even if a Chrome extension were a derivative work (which I’m not convinced they necessarily are), the copyright owner has allowed them.</p>\n",
"score": 1
}
] |
[
"copyright",
"intellectual-property",
"software",
"derivative-work"
] |
Are non-disclosure contracts in effect after company closes down?
| 4 |
https://law.stackexchange.com/questions/88342/are-non-disclosure-contracts-in-effect-after-company-closes-down
|
CC BY-SA 4.0
|
<p>I signed an employment contract with my employer (in Canada) that included a non-disclosure agreement (I work in R&D). The agreement essentially stated that the information gained while I was employed would be kept confidential in perpetuity.</p>
<p>The company never got around to patenting or otherwise protecting my work before it went out of business. As far as I'm aware, there was no buyer, no employees went elsewhere, it's just liquidated and gone. Since the contract was between myself and the company - which no longer exists - am I free to disclose the results of my work there?</p>
| 88,342 |
[
{
"answer_id": 88346,
"body": "<h2>Yes, it’s still in effect</h2>\n<p>The NDA, like any other contract is an asset of the company. It doesn’t just vanish because the company is no more, it is now owned by the heirs and assignees of the company. These will be the creditors of the company if it was insolvent or the former shareholders if it wasn’t.</p>\n<p>Now, they may not care that they own this contract or even know that they own it but it still exists and they could sue you if you break it.</p>\n",
"score": 2
}
] |
[
"contract-law",
"canada",
"business",
"non-disclosure"
] |
What are the regulatory equivalents of "prosecute" and "convict"?
| 4 |
https://law.stackexchange.com/questions/88339/what-are-the-regulatory-equivalents-of-prosecute-and-convict
|
CC BY-SA 4.0
|
<p>If I understand correctly, the terms "prosecute," "convict," "guilty," and "innocent" are only used in criminal cases. What are the equivalents in cases of civil violations, such as traffic infractions or violations of radio regulations?</p>
| 88,339 |
[
{
"answer_id": 88341,
"body": "<p>For a civil infraction, the typical term is found <em>responsible/not responsible</em>.</p>\n<p>For example, Michigan <a href=\"http://www.legislature.mi.gov/(S(4m5zzvcltoeco5jt2ad4cnti))/mileg.aspx?page=GetObject&objectname=mcl-600-113\" rel=\"noreferrer\">MCL 600.113(1)(b)</a></p>\n<blockquote>\n<p>(b) "Civil infraction action" means a civil action in which the defendant is alleged to be responsible for a civil infraction.</p>\n</blockquote>\n<p>For violations of Federal regulations, as in the FCC example, the term is found <em>in violation/not in violation</em>.</p>\n<p><a href=\"https://www.law.cornell.edu/cfr/text/47/95.313\" rel=\"noreferrer\">47 CFR § 95.313(b)</a></p>\n<blockquote>\n<p>If a Federal court finds that a Personal Radio Service station operator has willfully and knowingly violated any FCC rule, the operator may be fined up to $500 for each violation...</p>\n</blockquote>\n",
"score": 6
},
{
"answer_id": 88340,
"body": "<p>They aren't exact parallels, but I'd say the best equivalents would be "sue," "hold liable," "liable," and "not liable."</p>\n",
"score": 3
}
] |
[
"united-states",
"criminal-law",
"civil-law",
"common-law"
] |
US Travel restrictions after withdrawal of US asylum application/Canadian PR application, Waiting for asylum interview in US
| 1 |
https://law.stackexchange.com/questions/76488/us-travel-restrictions-after-withdrawal-of-us-asylum-application-canadian-pr-app
|
CC BY-SA 4.0
|
<p>I am a permanent resident of Canada. My girlfriend and I plan to marry in the USA soon.</p>
<p>She has been waiting for her asylum interview in the USA; she has already obtained her USA work permit and Social Security Number. Here are some of our questions:</p>
<ol>
<li><p>Once I come back to Canada after marriage and apply for her PR, does she need to withdraw her USA asylum application before getting Canadian PR approval (to start her PR application) or can she start her PR application and withdraw her asylum application after her successful Canadian PR approval?</p>
</li>
<li><p>Once she withdraws her asylum application in the USA, how many days can she stay inside the USA? Once she moves to Canada, can she travel back to the USA in the future? Will there be any kind of ban for her from entering the US?</p>
</li>
</ol>
| 76,488 |
[
{
"answer_id": 76549,
"body": "<ol>\n<li><p>I am not familiar with Canadian PR applications. When you say "start her PR application", are you referring to steps you take while she is outside Canada? or are you referring to steps she will take after entering Canada? If she leaves the US while her asylum application is pending, without first being granted Advance Parole, she abandons her asylum application. In that case, it would not matter if she withdraws it or not. If the process is something that is completed while she is in the US, then I see no reason why she cannot engage in that process while simultaneously continuing her asylum application in the US.</p>\n</li>\n<li><p>If she withdraws her asylum application, if her underlying status has expired or she had no status to begin with, she cannot stay in the US for any length of time. As for the unlawful presence ban, she does not accrue "unlawful presence" while a "bona fide" asylum application is pending, as long as she never works illegally. If her asylum application is denied or withdrawn, she starts accruing unlawful presence if she no longer has an underlying status. You have not told us what status she had before applying for asylum and when it ended, so we don't know how much unlawful presence, if any, she may have accrued before applying for asylum. So there is not enough information to determine if she has enough unlawful presence to trigger a ban upon departure.</p>\n</li>\n</ol>\n",
"score": 2
}
] |
[
"united-states",
"canada",
"immigration",
"asylum"
] |
Why are laws so vague in countries with separation of power?
| -1 |
https://law.stackexchange.com/questions/88322/why-are-laws-so-vague-in-countries-with-separation-of-power
|
CC BY-SA 4.0
|
<p>One thing I've noticed is that in countries with separation of power doctrines tend to have more vague laws. Could it be because the job of interpreting laws is of the judiciary? And that is why the laws are purposedly left vague?</p>
| 88,322 |
[
{
"answer_id": 88324,
"body": "<p>In countries with separation of powers, laws may be more vague in order to allow for flexibility and adaptability in their interpretation and application. This is because the judiciary, which is one of the branches of government with the power to interpret laws, plays a key role in determining the meaning and application of laws in practice.</p>\n<p>The separation of powers doctrine aims to prevent any one branch of government from becoming too powerful by dividing power among different branches. The judiciary, as an independent branch, has the power to interpret laws and ensure that they are consistent with the Constitution and other laws. This means that the judiciary has a degree of discretion in interpreting laws, and laws may be written in a more general and flexible way to allow for this.</p>\n<p>Additionally, laws in these countries are often written to be applicable to a wide range of situations and cases. This is because it is difficult to predict all of the different ways that a law may be applied, and to anticipate all of the specific circumstances that may arise. Therefore, laws are often written in a more general way so that they can be applied in a variety of situations.</p>\n<p>In short, laws in countries with separation of power may be more vague because they are written to allow for flexibility and adaptability in their interpretation and application, and to be applicable in a wide range of situations.</p>\n",
"score": 2
},
{
"answer_id": 88338,
"body": "<p>In places without fused parliamentary systems, multiple bodies that aren't necessarily controlled by one political party or one political coalition all have to agree to adopt a law. This makes reaching consensus on fine details of laws difficult.</p>\n<p>For example, for most national laws in the U.S., one needs a majority of the U.S. House (currently controlled by Republicans), a 60% majority in the U.S. Senate (where the Democratic party majority has 52 Senators, three of whom are independents who often vote with it, out of 100), and a Democratic President who can veto legislation approved by both houses of Congress (which can only be overcome by a two-thirds majority of the House and a two-thirds majority of the Senate). Also, separation of powers between the executive branch and the legislative branch tends to undermine party discipline in votes on legislation.</p>\n<p>One way that this gets dealt with in order to get the required broad agreement on legislation is to adopt a vague law and for the backers of the law to gamble that the way that the court's resolve the ambiguities will be acceptable.</p>\n",
"score": 2
}
] |
[
"international"
] |
What actually is a “Modern Day Slavery Policy”?
| 4 |
https://law.stackexchange.com/questions/88335/what-actually-is-a-modern-day-slavery-policy
|
CC BY-SA 4.0
|
<p>On many businesses’ websites there is an unobtrusive link to a so-called modern day slavery policy. What is this, and what provisions does it fulfill or get governed by?</p>
| 88,335 |
[
{
"answer_id": 88336,
"body": "<p>I can't speak for others, but my employer's policy is to ensure compliance with, and raise heightened awareness of, the <a href=\"https://www.legislation.gov.uk/ukpga/2015/30/contents\" rel=\"noreferrer\">Modern Slavery Act 2015</a>.</p>\n<p>If I recall correctly, the Act's original working-title included "Day" but was dropped along the way.</p>\n",
"score": 5
}
] |
[
"united-kingdom",
"england-and-wales",
"legal-terms",
"definition",
"slavery"
] |
After a buyout, can a company legally continue to use old testimonials?
| 3 |
https://law.stackexchange.com/questions/88325/after-a-buyout-can-a-company-legally-continue-to-use-old-testimonials
|
CC BY-SA 4.0
|
<p>US general law.</p>
<p>I'm curious...</p>
<p>Company [A] is in the digital services industry and has been in business for a decade. During their operations they receive many rave testimonials/reviews about their service.</p>
<blockquote>
<p>"[A] has been exceptionally responsive... "[A] is great".. etc.</p>
</blockquote>
<p>Company [B] then buys out Company [A] and assumes all operations.</p>
<p>However, the the <strong>name and/or branding does <em>not</em> change</strong> after the buyout. To customers, everything still <em>looks</em> like it is Company [A] and <strong>no <em>visible</em> transfer of services</strong> has occurred. Although the services are now <em>entirely</em> under the operations of Company [B].</p>
<p>Company [B] continues, for many years, to use testimonials/reviews related to the performance of the <em>original</em> Company [A]. Testimonials/reviews are in <em>no way</em> related to the performance of Company [B], under the guise of Company [A].</p>
<p>Company [A] technically no longer exists, rather it is Company [B] <em>doing business as</em> Company [A].</p>
<p>Can Company [B] continue to use testimonials/reviews originally referencing the performance of Company [A]?</p>
<p>Are the testimonials/review permitted merely because the visible "face" of the company hasn't changed? Even if the entire backend operations have?</p>
| 88,325 |
[
{
"answer_id": 88332,
"body": "<blockquote>\n<p>After a buyout, can a company legally continue to use old testimonials?</p>\n</blockquote>\n<p>Yes. What you describe would not suffice for a finding of false and misleading practices.</p>\n<p>For purposes of pricing the acquisition, it is most likely that company's A prestige was factored in. After all, as <a href=\"https://www.leagle.com/decision/infco20181130139\" rel=\"noreferrer\"><em>Kaspersky Lab, Inc. v. US Dept. of Homeland Sec.</em>, 909 F.3d 446, 461 (2018)</a> points out, "<em>reputation is an asset that companies cultivate, manage, and monetize</em>". As company A has --or could have-- monetized its reputation via the acquisition price, it would be inconsistent to preclude company B from using an asset for which it paid.</p>\n",
"score": 5
}
] |
[
"united-states",
"business"
] |
How can a buyer make sure if a car "CERTIFICATE OF TITLE" is real?
| 2 |
https://law.stackexchange.com/questions/72670/how-can-a-buyer-make-sure-if-a-car-certificate-of-title-is-real
|
CC BY-SA 4.0
|
<p>Suppose that a person, A, wants to buy a used car in California. A must get the certificate of title (it seems they call it "pink slip" in CA) from the seller. But how can A make sure if this is the real/true paper? Maybe this would be a fake printed paper? Perhaps the car is in fact stolen. How can A check the paper to prevent scams?</p>
| 72,670 |
[
{
"answer_id": 72672,
"body": "<p>The <a href=\"https://www.dmv.ca.gov/portal/handbook/vehicle-industry-registration-procedures-manual-2/odometer-mileage-reporting/certificate-of-title/\" rel=\"nofollow noreferrer\">DMV technical manual</a> describes a legitimate title, the "most legitimate" being "Complying Pink Title with Blue Border", from 12/03:</p>\n<blockquote>\n<p>The face of the title is pink with a blue border and a white opaque\nstate seal. The reverse side of the title is blue. VOID appears on the\ntitle if photocopied. The vehicle history (brand) information is\nprominently displayed within a red box in the upper right corner of\nthe certificate. The title contains a warning banner printed in the\nright and left border that reads, “VOID WITHOUT BEAR WATERMARK. HOLD\nTO LIGHT TO VIEW”. The title contains a custom-repeated pattern of\nmicroprinted wording to expose erasures in the odometer statement\nareas. To expose chemical alterations, reactive agents are\nincorporated into the paper that produce various stains.</p>\n</blockquote>\n<p>and more recently</p>\n<blockquote>\n<p>Has a prominent strand of polyester security thread embedded into the\npaper. The thread is repeatedly printed with “State of California” in\na forward/backward position in microprinted text. The ISSUE DATE\nsection is printed in red. The VEHICLE HISTORY box, VEHICLE ID NUMBER,\nPLATE NUMBER, and ODOMETER sections include the words “California\nDepartment of Motor Vehicles” in the shaded areas.</p>\n</blockquote>\n<p>There are other types, such as "Noncomplying Rainbow Title" which are still valid. The DMV (theoretically) could tell you, but that could complicate a plan to buy a car without a lot of hassle.</p>\n",
"score": 2
}
] |
[
"california",
"car-title"
] |
Can you be denied a concealed weapons permit in NY if you don't have social media or give references?
| 2 |
https://law.stackexchange.com/questions/82733/can-you-be-denied-a-concealed-weapons-permit-in-ny-if-you-dont-have-social-medi
|
CC BY-SA 4.0
|
<p>Since the Bruen decision, NY has changed the requirements to get a concealed weapons permit. They have since required applicants to demonstrate “good moral character” and (1) attending an in-person interview; (2) providing names and contact information for at least four character references; (3) providing names and contact information for all adults residing with the applicant and information about whether minors reside in the home; and (4) submitting “a list of former and current social media accounts of the applicant from the past three years.”</p>
<p>What happens if you don't have any reference or don't have any social media accounts? Can they legally deny you based on not providing that information?</p>
| 82,733 |
[
{
"answer_id": 88308,
"body": "<p>It is not clearly established what SCOTUS would rule, were such a case to arise, but it is highly likely that they would reject a requirement to have social media accounts as a requirement for holding a concealed weapons permit. The data under consideration in the question relate to the "good moral character" requirement of the <a href=\"https://legislation.nysenate.gov/pdf/bills/2021/S51001\" rel=\"nofollow noreferrer\">new licensing law</a>, which does not specify how good moral character will be proven. In reading <a href=\"https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf\" rel=\"nofollow noreferrer\">Bruen</a>, you obtain some indication of reasoning that the court would use is deciding the case. First,</p>\n<blockquote>\n<p>to justify a firearm regulation the government must demonstrate that\nthe regulation is consistent with the Nation’s historical tradition of\nfirearm regulation</p>\n</blockquote>\n<p>therefore courts must</p>\n<blockquote>\n<p>assess whether modern firearms regulations are consistent with the\nSecond Amendment’s text and historical understanding</p>\n</blockquote>\n<p>which means that</p>\n<blockquote>\n<p>The burden then falls on respondents to show that New York’s\nproper-cause requirement is consistent with this Nation’s historical\ntradition of firearm regulation.</p>\n</blockquote>\n<p>The new law is being contested in court, <a href=\"https://www.courtlistener.com/docket/65364032/antonyuk-v-hochul/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc\" rel=\"nofollow noreferrer\">here</a> is one example, and in <a href=\"https://storage.courtlistener.com/recap/gov.uscourts.nynd.134829/gov.uscourts.nynd.134829.1.0.pdf\" rel=\"nofollow noreferrer\">the complaint</a>, the malleable good moral character requirement ¶67ff is attacked, followed by attacks on the requirements said to be necessary to prove good moral character. In the US District court <a href=\"https://storage.courtlistener.com/recap/gov.uscourts.nynd.134829/gov.uscourts.nynd.134829.78.0_1.pdf\" rel=\"nofollow noreferrer\">ruling</a>, starting p. 90, the court analyzes the question of the "good moral character" requirement, finding that</p>\n<blockquote>\n<p>the State Defendants attempt to avoid the impact of the\nburden-shifting rule set forth in NYSRPA. They fail</p>\n</blockquote>\n<p>...</p>\n<blockquote>\n<p>the State Defendants do not clearly state why this regulation (or any\nof the challenged regulations, for that matter) burdens a law-abiding\ncitizen's right to armed self-defense.</p>\n</blockquote>\n<p>The state does provide historical precedent in their argument, pointing to colonial laws\nforbidding the sale and trading of arms to Indigenous people,\nprohibiting weapons possession by Catholics who refused to take\nan oath of loyalty to the government, plus some state laws from 1776 and 1777\ndisarming persons based on their reputation for\nbeing disloyal or hostile to the new Nation until they took an oath of loyalty – and a handful of city laws post 2nd Amendment pertaining to restricting possession of firearms from an individual who is potentially dangerous. But,\n"the Court has\ntrouble finding them to be 'historical analogues' that are able to shed light on the public\nunderstanding of the Second Amendment in 1791".</p>\n<p>The decisions points to a distinction between restrictions on "readily apparent groups of people and often could be avoided by the objective\nact of taking an oath". But</p>\n<blockquote>\n<p>The CCIA’s "good moral character" requirement is not so objective in\nnature (e.g., by requiring a finding of a likelihood of harm to self\nor others based the prior conduct of the applicant, and permitting one\nto avoid the restriction by taking an oath), and does not even\nexpressly recognize an exception for actions taken in self-defense.</p>\n<p>As a result, based on a careful comparison of the burdensomeness of\nthe CCIA’s "good moral character” requirement (i.e., the burden\nimposed in light of its justification) to the burdensomeness of the\nrelevant historical analogues (again, burden in light of\njustification), the Court finds the burdensomeness of the CCIA’s "good\nmoral character" requirement (which is imposed on everyone and can be\navoided only through open-ended discretionary findings of\n"temperament," "judgment" and "[]trust[]" by licensing officials) is\nunreasonably disproportionate to the burdensomeness of the relevant\nhistorical analogues (which were imposed on only readily apparent\ngroups of people and could often be avoided by the objective act of\ntaking an oath)</p>\n</blockquote>\n<p>The court then enjoins the state from enforcing the provision requiring "good moral character",\nthe provision requiring the "names and contact information for\nthe applicant’s current spouse, or domestic partner, any other adults residing in the applicant's home, including any adult children of the\napplicant, and whether or not there are minors residing, full time or part\ntime, in the applicant’s home", the provision requiring "a list of former and current social\nmedia accounts of the applicant from the past three years", and\nthe provision contained in Section 1 of the CCIA requiring\n"such other information required by review of the licensing application\nthat is reasonably necessary and related to the review of the licensing\napplication".</p>\n",
"score": 1
}
] |
[
"united-states",
"new-york-state",
"regulations",
"firearms"
] |
What is a bill of attainder?
| 1 |
https://law.stackexchange.com/questions/88317/what-is-a-bill-of-attainder
|
CC BY-SA 4.0
|
<p>The U.S. constitution proscribes ex post facto laws and bills of attainder. What are bills of attainder?</p>
<p>Are they the same as what is referred to by what Wikipedia has to say on attainder?</p>
| 88,317 |
[
{
"answer_id": 88318,
"body": "<p>See <em>United States v. Lovett</em>, <a href=\"https://tile.loc.gov/storage-services/service/ll/usrep/usrep328/usrep328303/usrep328303.pdf\" rel=\"nofollow noreferrer\">328 U.S. 303</a> (1946) (quoting from the syllabus):</p>\n<blockquote>\n<p>Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial, are bills of attainder prohibited by the Constitution.</p>\n</blockquote>\n<p>See also <em>Nixon v. Administrator of General Services</em>, <a href=\"https://tile.loc.gov/storage-services/service/ll/usrep/usrep433/usrep433425/usrep433425.pdf\" rel=\"nofollow noreferrer\">433 U.S. 425</a> (1977)</p>\n<blockquote>\n<p>In England, a bill of attainder originally connoted a parliamentary Act sentencing a named individual or identifiable members of a group to death. [The bill of attainder clause] however, also proscribes enactments originally characterized as bills of pains and penalties, that is, legislative Acts inflicting punishment other than execution. ... Our country's own experience with bills of attainder resulted in the addition of another sanction to the list of impermissible legislative punishments: a legislative enactment barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those legislatively branded as disloyal.</p>\n</blockquote>\n<p>Essentially, Congress is proscribed from passing a bill that targets an individual for punishment and doing legislatively what is the domain of the judiciary.</p>\n<p>However, just because a bill effectively captures only a single individual, that does not make it a bill of attainder. The bill at issue in <em>Nixon</em>, despite applying only to Richard Nixon, "plainly must be held to be an act of nonpunitive legislative policymaking." Congress's desire was to "safeguard the 'public interest in gaining appropriate access to materials of the Nixon Presidency which are of general historical significance.'" Further, it was not even found to be "punishment" because the bill provided for "just compensation."</p>\n<p>The Court in <em>Nixon</em> announced three ways to determine whether a bill was an unconstitutional bill of attainder:</p>\n<ol>\n<li>a historical inquiry (<a href=\"https://tile.loc.gov/storage-services/service/ll/usrep/usrep433/usrep433425/usrep433425.pdf#page=49\" rel=\"nofollow noreferrer\">p. 473</a>) - whether the deprivation or disability falls within a "ready checklist" of punishments "so disproportionally severe and so inappropriate to nonpunitive ends that they unquestionably have been held to fall within the proscription"</li>\n<li>a functional inquiry (<a href=\"https://tile.loc.gov/storage-services/service/ll/usrep/usrep433/usrep433425/usrep433425.pdf#page=51\" rel=\"nofollow noreferrer\">p. 475</a>) - whether a novel burden, when viewed "in terms of the type and severity... reasonably can be said to further nonpunitive legislative purposes"</li>\n<li>a motivational inquiry (<a href=\"https://tile.loc.gov/storage-services/service/ll/usrep/usrep433/usrep433425/usrep433425.pdf#page=54\" rel=\"nofollow noreferrer\">p. 478</a>) - whether the legislative record "evinces a congressional intent to punish"</li>\n</ol>\n<p>More info is at the <em>Constitution Annotated</em>:</p>\n<ul>\n<li>"<a href=\"https://constitution.congress.gov/browse/essay/artI-S9-C3-1/ALDE_00013186/\" rel=\"nofollow noreferrer\">Historical Background on Bills of Attainder</a>"</li>\n<li>"<a href=\"https://constitution.congress.gov/browse/essay/artI-S9-C3-2/ALDE_00013187/\" rel=\"nofollow noreferrer\">Bills of Attainder Doctrine</a>"</li>\n</ul>\n",
"score": 1
}
] |
[
"united-states",
"constitutional-law",
"us-constitution",
"attainder"
] |
Under what conditions are 3rd party works automatically subject to the OGL 1.0a?
| 5 |
https://law.stackexchange.com/questions/88307/under-what-conditions-are-3rd-party-works-automatically-subject-to-the-ogl-1-0a
|
CC BY-SA 4.0
|
<p>Are 3rd party creations that are "compatible with" D&D automatically subject to the OGL (OGL 1.0a for the purposes of all references in this question), or can they be published without relying or agreeing to the terms of the OGL?</p>
<p>To put it another way, so long as a creator of such content doesn't quote the SRD content provided as part of their work, nor use any of Wizard of the Coast's trademarked names, nor the rules of the game, would the creator have to comply with the OGL?</p>
<p>If they used the <em>style</em> WoTC (as set out in the style guide made available by Wizards of the Coast on the dmsguild), and applied it to their original works, would that work now fall under the aegis (or dominion) of the OGL?</p>
<p>Is there a test set out to determine if a work is a derivative work (and thus would be covered by the OGL)?</p>
<p>For the purposes of this I'm interested in the law of copyright arising from the the EU, US and UK (And the relevant copyright treaties they are party to).</p>
| 88,307 |
[
{
"answer_id": 88316,
"body": "<h2>When the 3rd-party agrees to follow the <a href=\"https://media.wizards.com/2016/downloads/SRD-OGL_V1.1.pdf\" rel=\"nofollow noreferrer\">OGL 1.0a</a></h2>\n<p>Clause 3 states:</p>\n<blockquote>\n<p>Offer and Acceptance: By Using the Open Game Content You indicate Your acceptance of the terms of this License.</p>\n</blockquote>\n<p>And clause 10 says:</p>\n<blockquote>\n<p>Copy of this License: You MUST include a copy of this License with every copy of the Open Game Content You Distribute.</p>\n</blockquote>\n<p>So, if you use Open Game Content and include a copy of the licence (or other indication of your intent to be bound) then you are bound by the OGL 1.0a.</p>\n<p>If you use Open Game Content under fair use/dealing, or illegally, then you are not bound.</p>\n<h2>How much of the Open Game Content is protected by copyright?</h2>\n<p>Some.</p>\n<p>Game rules are a procedure and procedures are not protected by copyright. However, the particular presentation of those rules by Wizards of the Coast (WotC) is protected by copyright as are any components that are not rules. AFAIK there is no case law on Dungeons & Dragons on where this line is drawn.</p>\n<p>If your “derivative” work draws only on the rules, then there is no copyright infringement. However, even if it draws on things that are protected by copyright, you might have a fair use defence in the US but you are unlikely to have a fair dealing defence in Commonwealth nations. I can’t help you with civil law jurisdictions.</p>\n<p>There appears to be a general consensus that most of what the Open Game Content contains is stuff that WotC could not successfully prosecute you for using under copyright or trade mark law. Effectively its a licence to allow you to use what you could use anyway - the only thing you gain is the certainty that WotC won’t sue you irrespective of if that suit might be successful.</p>\n<blockquote>\n<p>To put it another way, so long as a creator of such content doesn't quote the SRD content provided as part of their work, nor use any of Wizard of the Coast's trademarked names, nor the rules of the game, would the creator have to comply with the OGL?</p>\n</blockquote>\n<p>As stated above, you can quote a lot of the content, just not the stuff that isn’t rules. You can refer to WotC trade marks in a nominative way, just not in a way that suggests that your product is their product. You can quote all the rules of the game if you like.</p>\n<p>That does’t mean that WotC won’t sue you, it just means they will be unlikely to succeed.</p>\n<blockquote>\n<p>If they used the style WoTC (as set out in the style guide made available by Wizards of the Coast on the dmsguild), and applied it to their original works, would that work now fall under the aegis (or dominion) of the OGL?</p>\n</blockquote>\n<p>Following a style guide does not infringe anyone’s copyright. You would need to observe the rights that anyone held in fonts and you could not use the style in an attempt to pass your work off as theirs - style can be a form of trade dress which is a type of trademark.</p>\n<blockquote>\n<p>Is there a test set out to determine if a work is a derivative work (and thus would be covered by the OGL)?</p>\n</blockquote>\n<p>Yes, there most certainly are tests and they vary from country to country. However, as stated above being derivative and following the OGL are two seperate things.</p>\n",
"score": 2
}
] |
[
"united-states",
"copyright",
"united-kingdom",
"intellectual-property",
"european-union"
] |
Dead judges deciding votes on cases
| 9 |
https://law.stackexchange.com/questions/30512/dead-judges-deciding-votes-on-cases
|
CC BY-SA 4.0
|
<p>Strange development on the <a href="http://reason.com/volokh/2018/07/25/the-dead-can-vote-at-least-on-the-ninth?utm_source=dlvr.it&utm_medium=twitter" rel="noreferrer">US Court of Appeals:</a></p>
<blockquote>
<p>Yesterday, the U.S. Court of Appeals for the Ninth Circuit decided Altera Corporation v. Commissioner, a challenge to the Internal Revenue Service's treatment of cost-sharing arrangements for employee stock compensation. The panel split 2-1 on whether the IRS rule satisfied the requirements of the Administrative Procedure Act (APA), reversing a lower court decision concluding the IRS had failed to conduct an adequate rule-making. One of the two judges, however, has been dead for four months.</p>
</blockquote>
<p>The practice certainly is novel and may, in fact, be unique. The US Supreme Court doesn't follow the practice (same source):</p>
<blockquote>
<p>This happened on the Supreme Court when Justice Scalia died. Note, however, the Court did not proceed to issue any additional opinions with him participating. Opinions in cases that had not yet been issued were released with only eight judges participating (seven in the case of Fisher), even if that meant that some cases (such as Friedrichs, the precursor to Janus v. AFSMCME) were resolved 4-4.</p>
</blockquote>
<p>My question is this in fact unique? Have any other cases in the US federal courts been decided at the appeals or higher level based upon a dead judge's written opinion, and if so, have they then survived appeal?</p>
| 30,512 |
[
{
"answer_id": 30513,
"body": "<blockquote>\n <p>My question is this in fact unique? Have any other cases in the US\n federal courts been decided at the appeals or higher level based upon\n a dead judge's written opinion, and if so, have they then survived\n appeal?</p>\n</blockquote>\n\n<p>This happens roughly a couple of times a year on average in the U.S. Courts of Appeal, usually when an opinion has been agreed to in principle and a final draft of the opinion has been approved, but release of the opinion is delayed, for example, to allow the dissenting opinion in the case to be completed prior to publication of the decision.</p>\n\n<p>The blog \"<a href=\"https://howappealing.abovethelaw.com/\" rel=\"noreferrer\">How Appealing</a>\" regularly reports this practice when it happens, although its accounts of this practice are not comprehensive.</p>\n\n<p>To the best of my knowledge, no appellate court opinion has ever been reversed on appeal because a judge died prior to its publication.</p>\n\n<p>For comparison's sake, in the most recent year for which statistics are available (2017) the U.S. Courts of Appeal <a href=\"http://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2017\" rel=\"noreferrer\">handled 60,877 cases</a>, so this happens in less than one in 30,000 cases (you have to combine the regional U.S. Courts of Appeal and the Federal Circuit which is reported separately for statistical purposes to get the total).</p>\n",
"score": 10
},
{
"answer_id": 77903,
"body": "<p>Since this question was originally asked and answered, the Supreme Court decided <a href=\"https://www.supremecourt.gov/orders/courtorders/022519zor_8mjp.pdf\" rel=\"noreferrer\">Yovino v Rizo</a>, No. 18-272 of 2019. This concerns the very same Judge Reinhardt who died during Altera Corp v Commissioner, mentioned in the question, but whereas the Ninth Circuit vacated the decision and reconstituted a panel, they did not do so in Yovino. In <em>that</em> case, the "majority" opinion of six judges on the eleven-judge panel was a majority only by virtue of including the late Judge Reinhardt, and so it was doubtful whether it should count as precedential. Without him, it's five judges out of ten, which doesn't amount to the threshold required to be a majority opinion.</p>\n<p>The Supreme Court held that he should not be so counted, and so the judgment was vacated and remanded back to the Ninth Circuit for further proceedings.</p>\n<p>The opinion of the Supreme Court includes the rationale that:</p>\n<blockquote>\n<p>it is generally understood that a\njudge may change his or her position up to the very moment when a decision is released.</p>\n</blockquote>\n<p>They also make the pithy remark:</p>\n<blockquote>\n<p>federal judges are appointed for life,\nnot for eternity.</p>\n</blockquote>\n<p>The court also elaborates that "we are aware of no cases in which a court of appeals panel has purported to issue a binding decision that\nwas joined at the time of release by less than a quorum of\nthe judges who were alive at that time." To be precise, there are cases (some of which are cited) where judges have died but the <em>remaining</em> ones were still able to come to a majority decision. What was different here was that the deceased judge caused the majority, and therefore a quorum, to be lost.</p>\n",
"score": 6
}
] |
[
"united-states"
] |
Can criminal law be retroactive in the United States?
| 20 |
https://law.stackexchange.com/questions/72900/can-criminal-law-be-retroactive-in-the-united-states
|
CC BY-SA 4.0
|
<p>I was watching <a href="https://www.youtube.com/watch?v=ybIfSkEOOco" rel="noreferrer">a segment from CNBC on YouTube</a> and was surprised by the fact that the government intends to make the tax rate retroactive after the law is passed so that the new tax rates will apply to stocks owned before the law was passed.</p>
<p>I was wondering if in criminal law, the passing of a law that makes punishment retroactive after the law was passed is also possible making it possible for past crimes to be punished in the United States.</p>
| 72,900 |
[
{
"answer_id": 72902,
"body": "<p>No. This is black-letter constitutional law. From <a href=\"https://en.wikisource.org/wiki/Constitution_of_the_United_States_of_America#Section_9\" rel=\"noreferrer\">Article 1, section 9</a>:</p>\n<blockquote>\n<p>No Bill of Attainder or ex post facto Law shall be passed.</p>\n</blockquote>\n",
"score": 42
},
{
"answer_id": 72903,
"body": "<p>This is routine for tax laws, and leniency in criminal laws can be made retroactive, but criminal laws may not be made more strict retroactively (as this would constitute an <em>ex post facto</em> criminalization of conduct, as @Mark notes in his answer).</p>\n",
"score": 24
},
{
"answer_id": 72953,
"body": "<blockquote>\n<p>will apply to <strong>stocks owned</strong> before the law was passed.</p>\n</blockquote>\n<p>There it is. They're talking about stocks you own now, and continue to own past the tax change.</p>\n<p>Well, that's how capital gains work. The taxable event occurs <strong>when you sell</strong>.</p>\n<p>That's because stocks can come back down. You don't know if you gained or lost <em>until you sell</em>. It just wouldn't work to tax capital gains on a stock you are still holding. Its value could fall after the tax was paid.</p>\n<p>As such, changes in capital gains tax rate <em>are not</em> "ex post facto".</p>\n<hr />\n<p>So if they change capital gains tax rates to 25% tomorrow, you are now "in the soup" with any securities you had not sold by today. There will be no way to avoid that higher tax rate.*</p>\n<p><em>Even though the lion's share of the gains happened prior to the capital gains tax rate going up</em>. Suppose in 1953 you acquired ExampleCo for $1/share. As of today, it is now worth $2001/share. If you sold it today, you post $2000 capital gains, and pay say 20% capital gains or $400/share.</p>\n<p>But tomorrow, they raise the capital gains tax to 25%. You sell tomorrow when it's worth $2005/share, your gains are $2004 and your tax is $501/share.</p>\n<p>Rich people are saying "we don't mind paying the 25% rate on the $4, we mind paying it on the $2000 since capital gains did occur when the tax rate was lower". *That logic fails, however. Because the capital gains were not, in fact, lower when it enjoyed the lion's share of its gains. Say the stock increased value 100x during a 40% capital gain period, and then another 20x during a 20% period. How do you even break that out? It's a mess.</p>\n<hr />\n<p>OK, so the wealthy have a simple answer for that. They want to sell the assets today (e.g. at $2001)... capture their gains and pay the capital gain tax at the old lower rate (e.g. the $400)... and then re-purchase the assets at market (i.e. $2001). So if they sell tomorrow they only pay $4 of the higher capital gain. Nice try, but when that's done to avoid taxes, it's called a <em>wash sale</em> and the sell/buy is ignored.</p>\n<hr />\n<p>* well, there sort-of is. You can donate the stock <em>as a stock</em> to charity. The charity will sell the stock, and since they sold it not you, they pay the capital gains, at the <em>charity</em> capital gains tax rate of 0%.</p>\n<p>However, you get the full write-off at the appreciated value, not as a capital loss but as a proper deduction coming off plain income. And without having to pay capital gains tax. Crunch it both ways and include state tax, you don't make as much as simply paying the tax, but the charity gets a great deal more than you sacrifice.</p>\n<p>Even the smallest charity can accept a stock gift, if you use a donor-advised fund as an intermediary. That is free, subsidized by people like me who leave funds parked there and pay 0.6% a year for the privilege.</p>\n",
"score": 10
}
] |
[
"united-states",
"criminal-law"
] |
Does ambiguity in law go in favor of the defendant in a criminal case?
| 4 |
https://law.stackexchange.com/questions/88159/does-ambiguity-in-law-go-in-favor-of-the-defendant-in-a-criminal-case
|
CC BY-SA 4.0
|
<p>Is it an out if the law a person is accused of breaking is ambiguous or in any way poorly written that an accused can be set free from it?</p>
<p>I cannot think that every law enacted are made equally. Sometimes laws can be rushed while some party has enough power to do so, without the necessary care and thought as to the precise practical implications of the law.</p>
<p>Surely, there must ways of dealing with poorly written laws when a person's future is at stake?</p>
| 88,159 |
[
{
"answer_id": 88161,
"body": "<p>This is known as the <em>rule of lenity</em>.</p>\n<blockquote>\n<p>A common formulation of the rule of lenity is as follows: If a federal criminal statute is grievously ambiguous, then the statute should be interpreted in the criminal defendant's favor.</p>\n</blockquote>\n<blockquote>\n<p>Importantly, the rule of lenity does not apply when a law merely contains some ambiguity or is difficult to decipher. As this Court has often said, the rule of lenity applies only when “ ‘after seizing everything from which aid can be derived,’ ” the statute is still grievously ambiguous. The rule “comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.”</p>\n</blockquote>\n<p>Kavanaugh J., concurring, in <em>Wooden v. United States</em>, 595 U.S. ___ (2022), citing <em>Ocasio v. United States</em>, 578 U.S. 282, 295, n. 8 (2016), internal citations removed.</p>\n",
"score": 8
},
{
"answer_id": 88160,
"body": "<p>If a law is not clear enough to let people know what is and what is not a violation, the law may be held to be void for "vagueness". But if it is clear that an act is a violation, even if some aspects of the law are unclear or ambiguous, that will not automatically be a defense for a person accused of breaking that law.</p>\n<p>In some cases a court will add restrictions or clarifications to a law, and will treat it as if those had been included from the start. That may or may not create a defense for a particular accused. For example, a court may add that a certain action is only a crime if done "with intent to deceive". Other intent restrictions may also be added.</p>\n<p>The outcome will depend on just what sort of ambiguity or careless drafting is involved, and how it affects the actual acts the accused did or is accused of doing.</p>\n",
"score": 7
},
{
"answer_id": 88173,
"body": "<p>Poor writing of law is never a basis for overturning a conviction. Hard-core ambiguity might be, in which case the "rule of lenity" may choose between possible interpretations of a clause. See <a href=\"https://supreme.justia.com/cases/federal/us/344/218/\" rel=\"noreferrer\">US v. Universal C.I.T. Credit Corp.</a>, 344 U.S. 218</p>\n<blockquote>\n<p>when choice has to be made between two readings of what conduct\nCongress has made a crime, it is appropriate, before we choose the\nharsher alternative, to require that Congress should have spoken in\nlanguage that is clear and definite. We should not derive criminal\noutlawry from some ambiguous implication.</p>\n</blockquote>\n<p>re-cited in a chain of rulings up to <a href=\"https://supreme.justia.com/cases/federal/us/473/207/\" rel=\"noreferrer\">Dowling v. United States</a>, 473 U.S. 207 and beyond. However, there is the case of <a href=\"https://supreme.justia.com/cases/federal/us/468/63/\" rel=\"noreferrer\">US v. Yermian</a>, 468 U.S. 63, there the defendant made a false statement in a job application, and was convicted of violating <a href=\"https://www.law.cornell.edu/uscode/text/18/1001\" rel=\"noreferrer\">18 USC 1001</a> which said (wording at the time of the crime)</p>\n<blockquote>\n<p>whoever, <em>in any matter within the jurisdiction of any department or\nagency of the United States knowingly</em> and willfully falsifies,\nconceals, or covers up by any trick, scheme, or device a material fact\nor makes any fictitious, or fraudulent statements or representations,\nor makes or uses any false writing or document knowing the same to\ncontain any false, fictitious, or fraudulent statement or entry</p>\n</blockquote>\n<p>shall be punished.</p>\n<p>Yermian knew that his statement (about convictions) was false, and contended that the prosecution had to prove both that he knew the falsity of the statement (the easy part) but also that the statement was made in a matter within the jurisdiction of the US. The job application was to a private company, who then submitted materials to the government to get a DoD security clearance, which he did not know.</p>\n<p>The court decided that the "jurisdiction" clause was outside the scope of the adverb "knowingly. The court does not engage grammatical science to learn that the structure is ambiguous, they instead rebuff the lenity argument by appeal to other considerations. They conclude that</p>\n<blockquote>\n<p>Any natural reading of §1001 establishes that the terms "knowingly and\nwillfully" modify only the making of "false, fictitious or fraudulent\nstatements," and not the predicate circumstance that those statements\nbe made in a matter within the jurisdiction of a federal agency</p>\n</blockquote>\n<p>which is to say, they believe that the interpretation where "knowingly" refers to both "in the jurisdiction" is not natural. Technical ambiguity is not enough, one has to establish <em>likely</em> ambiguity, that is, it is <em>likely</em> that a speaker of English would arrive at both interpretations. There is a related interpretive doctrine known as the "last antecedent rule" which says that a modifier only holds of the <em>last</em> (nearest) possible thing being modified. The courts long ago devised this "first thing preceding" rule to resolve rampant ambiguity (even so, the rule is invoked mainly as low-level support for a conclusion that was reached by other means). In Yermian's case, "knowingly" might modify jurisdiction (which precedes) or "false" which follows. I don't disagree with their naturalness judgment – the important thing to notice here is that this narrows the scope of "ambiguity" from "possible ambiguity" to "probable ambiguity".</p>\n<p>Another important part of the court's reasoning is based on legislative history, derived from reading earlier versions of the law (which, incidentally, has been re-worded since Yermian) – the "legislative intent" of the Congresses as a whole from 1918 up to the version applied against Yermian does seem to indicate a desire to prevent defrauding the government and there is no direct evidence that Congress intended to limit prosecution to just cases where a person also knew that the statement was "in a matter in the jurisdiction of the US". The court's conclusion is that all a person has to know is that they are making a false statement – it does not matter if they <em>know</em> that the statement is or has become "in a matter in federal jurisdiction".</p>\n<p>The minority in this case (Rehnquist, Stevens, Brennan, O'Conner) find the language to be ambiguous, but that only shows that the particular conclusion about language is credible to reasonable legal minds. As the dissent puts it,</p>\n<blockquote>\n<p>Although "there is no errorless test for identifying or recognizing\nplain' or `unambiguous' language" in a statute, United States v.\nTurkette, supra, at 452 U. S. 580, the Court's reasoning here amounts\nto little more than simply pointing to the ambiguous phrases and\nproclaiming them clear. In my view, it is quite impossible to tell\nwhich phrases the terms "knowingly and willfully" modify, and the\nmagic wand of ipse dixit does nothing to resolve that ambiguity.</p>\n</blockquote>\n<p><a href=\"https://supreme.justia.com/cases/federal/us/471/419/\" rel=\"noreferrer\">Liparota v. US</a>, 471 U.S. 419 presents a similar situation about ambiguous scope, regarding food stamp fraud, where the statute (7 USC 2024(b)(1)) identifies the criminal act as:</p>\n<blockquote>\n<p>Whoever knowingly uses, transfers, acquires, alters, or possesses\ncoupons or authorization cards in any manner not authorized by this\nchapter or the regulations issued pursuant to this chapter</p>\n</blockquote>\n<p>shall be punished. Again, there is ambiguity in the scope of "knowingly" – do you just have to know that you transferred the goods, or do you have to also know that the manner of transfer was not in compliance with the regulations? In this case, the court decided that the scope of "knowingly" must also extend to the authorization clause. In the holding, the court declares that "requiring mens rea in this case is in keeping with the established principle that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity" (majority opinion written by Brennan, one of the dissenters in Yermian, which is cited in Liparota).</p>\n<p>This is a topic on which books have been written. There is still no clear disposition of actually ambiguous laws.</p>\n",
"score": 6
}
] |
[
"united-states",
"criminal-law"
] |
May I create a custom license plate myself (in Virginia) using a purchased blank plate?
| 9 |
https://law.stackexchange.com/questions/88074/may-i-create-a-custom-license-plate-myself-in-virginia-using-a-purchased-blank
|
CC BY-SA 4.0
|
<p>I live in America (VA), and I wanted to replace my current license plate with a customized one.</p>
<p>I found an item on Amazon, which gives me a blank black license plate with white text.</p>
<p>The original content and my license text is still the same, however now the design would be different. Are there are laws that prohibit doing what I want to do?</p>
<p>I did some research and found that under the code of Virginia, § 46.2-722, it states:</p>
<blockquote>
<p>Any person who, with fraudulent intent, alters any license plate or decal issued by the
Department or by any other state, forges or counterfeits any license plate or decal
purporting to have been issued by the Department under the provisions of this title or by
any other state under a similar law or who, with fraudulent intent, alters, falsifies, or
forges any assignment thereof, or who holds or uses any license plate or decal knowing it to
have been altered, forged, or falsified, shall be guilty of a Class 1 misdemeanor.</p>
</blockquote>
<p>I'm confused, does it mean that I can't use a license plate that I don't own, or does it prohibit the usage of the license plate I want to get?</p>
| 88,074 |
[
{
"answer_id": 88075,
"body": "<blockquote>\n<p>forges or counterfeits any license plate</p>\n</blockquote>\n<p>That means you can't make your own. Certainly any created plate in different colors or design will attract attention of the authorities as well.</p>\n<p>You will need to use the license plate issued by the state.</p>\n",
"score": 33
},
{
"answer_id": 88107,
"body": "<p>Your confusion probably stems from trying to look at this issue from the wrong end. Instead of looking at the VA Code related to details of license plate forgeries, look earlier in the code for <a href=\"https://law.lis.virginia.gov/vacode/title46.2/chapter6/section46.2-712/\" rel=\"nofollow noreferrer\"><strong>§ 46.2-712 Requirements of license plates and decals</strong></a> which states that all graphic design details of the license plate is at "<em>the discretion of the Commissioner</em>".</p>\n<p>Looking back further in chapter <a href=\"https://law.lis.virginia.gov/vacode/title46.2/chapter6/section46.2-711/\" rel=\"nofollow noreferrer\"><strong>§ 46.2-711. Furnishing number and design of plates; displaying on vehicles required</strong></a>, paragraph F states: "<em>No vehicles shall be operated on the highways in the Commonwealth without displaying the license plates required by this chapter</em>" and that chapter refers to "<em>The Department shall furnish one license plate for every registered moped, motorcycle, autocycle, tractor truck, semitrailer, or trailer, and two license plates for every other registered motor vehicle</em>" so it appears that the only valid license plate allowed in VA is explicitly one that is issued by "The Department".</p>\n<p>Also, you missed a very important part of <a href=\"https://law.lis.virginia.gov/vacode/title46.2/chapter6/section46.2-722/\" rel=\"nofollow noreferrer\"><strong>§ 46.2-722. Altered or forged license plates or decals; use as evidence of knowledge.</strong></a></p>\n<p>"<em>The owner of a vehicle who operates it while it displays altered or forged license plates or decals shall be presumed to have knowledge of the alteration or forgery.</em>"</p>\n<p>Since you would know that your proposed custom license plate is not approved by the Commissioner, you would almost certainly be found guilty of violating <strong>46.2-722</strong> as that would take care of the "<em>with fraudulent intent</em>" part of the Code.</p>\n",
"score": 23
}
] |
[
"driving",
"virginia",
"license-plates",
"dmv"
] |
What legal remedies are available for the non-performance of contractual obligations that cannot be appraised?
| -1 |
https://law.stackexchange.com/questions/88251/what-legal-remedies-are-available-for-the-non-performance-of-contractual-obligat
|
CC BY-SA 4.0
|
<p>What remedies are available to tenant A for the landlord B's breach of contract in not providing a copy of their privacy notice, nor making it available on their website, as the contract required, when the tenancy ended 20 months ago? Note that B likely still holds A’s personal data making them remain a data controller with respect to A. Would a county court order specific performance of the obligation by B in this case, or award A pecuniary damages as compensation for the late performance? When are courts empowered and not empowered to compel specific (non-monetary) performance?</p>
<p>Along the same lines, in the case of tenant C and sub-landlord D, who did not provide a copy of their head lease agreement, likewise required by their sublease agreement, what remedies does C have against D, either during or after the termination of the tenancy?</p>
| 88,251 |
[
{
"answer_id": 88276,
"body": "<h2>What damage did they suffer as a result of the breach?</h2>\n<p>When either aggrieved party makes a claim, they will need to clearly state the monetary damages they seek and on what basis they suffered that loss. It is difficult to see a clear basis for how loss might have occurred.</p>\n<h2>Courts do not hear moot cases</h2>\n<p>In both these cases, it appears that the contracts have come to their natural end. It is quite normal that in many contracts, not all terms will have been strictly complied with. Most of these breaches are immaterial, and for contracts that are no longer ongoing, a court would likely dismiss the case as being moot.</p>\n<h2>GDPR rights are independent of the contract</h2>\n<p>The obligation to provide a privacy policy for landlord B is both a (moot) contractual duty and an ongoing statutory duty. There are many questions on this site dealing with GDPR non compliance - you should find your answer in one of those.</p>\n",
"score": 2
}
] |
[
"contract-law",
"england-and-wales",
"breach-of-contract",
"judiciary",
"any-jurisdiction"
] |
Can I sell the file OR a print of a 3D model that I significantly altered?
| 1 |
https://law.stackexchange.com/questions/87193/can-i-sell-the-file-or-a-print-of-a-3d-model-that-i-significantly-altered
|
CC BY-SA 4.0
|
<p>I downloaded a freely available .stl file that is a fan-made model of a space ship from a well-known sci-fi universe. The fan posted the file under a Creative Commons - Attribution - Non-Commercial license. I edited it significantly (by reshaping, deforming, resizing, adding details, etc.) and put it onto a stand I created. I 3D printed the resulting model and use it as a piece in a board game.</p>
<p>Two of my friends saw it: one wants to buy a printed copy from me and the other wants to buy a copy of the .stl file so that he can print it himself. Am I allowed to sell either of those things to my friends? One of my friends is telling me that since I've altered the work by more than 30%, it's mine and I can sell it.</p>
<p>If I do the same thing with a 3D file that has only a Creative Commons - Attribution or Creative Commons - Attribution - Share Alike license, could I then sell it?</p>
| 87,193 |
[
{
"answer_id": 87269,
"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>The license won't let you sell the .stl file. Probably you have created a derivative work, which means you can't sell it without a copyright license (and the CC-A-NC won't do).</p>\n<p>If it were licensed under CC-A you could sell it without problems (you'd have to give attribution, of course). You could also sell it under the CC-A-SA, but once you do you have no control over the result -- anyone you sold it to could give it to someone else under the terms of the license. This could work, though, if it were (say) a commission and you only expected to sell one copy.</p>\n<p>I don't know what the situation would be with the physical objects printed under any of these licenses.</p>\n",
"score": 3
},
{
"answer_id": 88292,
"body": "<h2>Double No</h2>\n<h3>You did a No!</h3>\n<p>Let's start simple: How did you obtain the file? Under a license that explicitly banned you from using the file in any way in a commercial capacity. You can't free the file or its products from this license but by acquiring it with a commercial allowed license. So this is one No on sale of STL or print.</p>\n<h3>The STL might be a No too</h3>\n<p>However, there's also another fat no: the file is a facsimile of a depiction of an item in a show. The copyright in that look is with the show's makers. The very STL downloaded could be copyright infringement in the first place or covered under a permissive "fan license". Usually such fan-tribute is not acted upon by showrunners, as such items draw fans, but exceptions exist.</p>\n<p>If your derivate of the show's derivate is sold, that can not just give rise for a breach of license how you acquired the STL, but also copyright infringement from the copyright holder - which is <strong>very</strong> expensive. Show and File-maker might even join forces for maximum punishment!</p>\n",
"score": 0
}
] |
[
"copyright",
"software",
"copyright-transfer",
"copyfraud"
] |
What is the name of principle used in US court that is helps detect discrimination in sentence by switching gender/race/nation name to another one?
| 2 |
https://law.stackexchange.com/questions/88299/what-is-the-name-of-principle-used-in-us-court-that-is-helps-detect-discriminati
|
CC BY-SA 4.0
|
<p>Imagine we have an article with following title</p>
<blockquote>
<p>How to Recruit More Women to Your Company</p>
</blockquote>
<p>On a first glance from perspective of gender inequality this article <em>looks like</em> an article that would help address a gender inequality in workspace especially given the major problems in some industries where major part of workers are made workers.</p>
<p>But I head about following way of testing if really have no subtle gender bias - by replacing a word that is possibly casting a bias by another one from the same bias.</p>
<p>So for example for article above the title would be</p>
<blockquote>
<p>How to Recruit More Men to Your Company</p>
</blockquote>
<p>Which in 2022 reality sounds like some kind of sexists hiring advice that would result in decrease of job opportunities for female employees</p>
<p>Since the phrase have a perceived gender inequality in it changed form and we threat all genders equally then original phrase have gender inequality too and after second look it makes a lot of sense: its an title for an article that can be seeing as advice about changing hiring decisions based on applicant sex (instead of changing underlying root cause making workspace equally friendly for every gender)</p>
<p>I heard there is such way(described above) to highlight possible discriminations in US court, but I have no idea what is the name of such approach and would like to know one.</p>
<p>PS. I'm not a lawyer and not even close to legal field I want to know more about this principle and it applicability limits but lack of ability search for it stopping me from even phrasing this question better that it is now</p>
| 88,299 |
[
{
"answer_id": 88304,
"body": "<p>The general issue raised is known as <em>gender discrimination</em>.</p>\n<p>The device of substituting a different gender into the hypothetical is just a potentially sympathetic reframing. It is sometimes a helpful analytical, argumentative, pedagogical, or rhetorical strategy in order to tease out or highlight what distinctions matter (or should matter) in law.</p>\n<p>The substitute hypothetical can also be called a counterfactual, or an alternative, or a comparator. There is no legal term of art here.</p>\n",
"score": 2
}
] |
[
"united-states",
"discrimination"
] |
Can you appeal a case after a higher court renders a favorable opinion about a law?
| 7 |
https://law.stackexchange.com/questions/88282/can-you-appeal-a-case-after-a-higher-court-renders-a-favorable-opinion-about-a-l
|
CC BY-SA 4.0
|
<p>In the U.S. Supreme Court's case, <a href="https://www.scotusblog.com/case-files/cases/monasky-v-taglieri/" rel="noreferrer">'Monasky v. Taglieri</a>', an opinion was rendered regarding how jurisdiction findings related to 'Habitual Residence' under the Hague Convention are determined.</p>
<p>Could parties who have lost previous cases appeal their cases given the new standard if the standards applied in their cases were in error?</p>
<p>If appeals can be made, or not, what doctrine/law clarifies this? What is the time window for such appeals?</p>
| 88,282 |
[
{
"answer_id": 88284,
"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 appellant would still be expected to file within the required time limits (30 days after the would-be appellant's judgment in the lower court). A judge of the court of appeal has the discretion to extend time, but this is subject to established criteria. For example, the criteria in British Columbia are (<em>Morden v. Pasternak</em>, <a href=\"https://canlii.ca/t/jr37w\" rel=\"nofollow noreferrer\">2022 BCCA 268</a>; citing <em>Davies v. C.I.B.C.</em> (1987), <a href=\"https://canlii.ca/t/210t2#par20\" rel=\"nofollow noreferrer\">15 B.C.L.R. (2d) 256</a> (C.A.)):</p>\n<blockquote>\n<ol>\n<li><p>Was there a <em>bona fide</em> intention to appeal?</p>\n</li>\n<li><p>When was the respondent informed of the intention?</p>\n</li>\n<li><p>Would the respondent be unduly prejudiced by an extension of time? </p>\n</li>\n<li><p>Is there merit in the appeal?</p>\n</li>\n<li><p>Is it in the interest of justice that an extension be granted?</p>\n</li>\n</ol>\n</blockquote>\n<p>If the highest court in the country had recently issued a decision clearly favouring the appellant, I predict this would weigh in favour of granting an extension of time under the "merit in the appeal" factor. However, that factor is not dispositive, and it will not excuse a long delay.</p>\n<p>This might seem harsh, but there is an interest in finality and a concern about prejudice to the respondent. And if the appellant thought they had an argument on appeal, they could have appealed within the time limit to potentially challenge the precedent themself.</p>\n",
"score": 6
},
{
"answer_id": 88283,
"body": "<p>Generally speaking, a new precedent that would have been controlling in a case, can be applied until the decision in the other case is final and all direct appeals from the other case have been exhausted.</p>\n<p>But, only rarely could a new precedent be used to reopen a civil case once all direct appeals are exhausted and the judgment in that case is final.</p>\n<p>Most of the case law is in the area of criminal case appeals and collateral attacks on convictions in habeas corpus petitions.</p>\n<p>The most likely situation for a collateral attack on a judgment to be successful due to a new precedent in a civil case would be one that implied that the court in which the final order was entered lacked jurisdiction over the case. But generally speaking, the circumstances under which a judgment can be collaterally attacked once it is final are very narrow.</p>\n",
"score": 5
},
{
"answer_id": 88303,
"body": "<p>In the United States, the ability to appeal a case after a higher court renders a favorable opinion depends on the specific circumstances of the case and the stage of the legal proceedings. Generally speaking, parties who have lost a case at the trial level may appeal the decision to a higher court, and if the higher court issues a favorable opinion, the case may be remanded back to the trial court for further proceedings. However, once a case has been fully resolved and all appeals have been exhausted, it is generally not possible to re-open the case based on a change in the law or a new legal standard.</p>\n<p>In the case of Monasky v. Taglieri, if the parties who lost previous cases can demonstrate that the standards applied in their cases were in error and that the new standard established by the Supreme Court would have resulted in a different outcome, they may be able to appeal their cases. The specific process for doing so would depend on the state and federal court system involved, but generally it would require a motion for a new trial or a writ of habeas corpus.</p>\n<p>The time window for such appeals is also determined by the jurisdiction and the court system involved. In most cases, parties have a limited time period in which to file an appeal, known as the statute of limitations. The time limits for filing an appeal can vary depending on the type of case and the court that heard the case.</p>\n",
"score": 4
}
] |
[
"canada",
"us-supreme-court",
"appeal",
"custody"
] |
What is the legality and practicality of conducting litigation under a pseudonym?
| 1 |
https://law.stackexchange.com/questions/88273/what-is-the-legality-and-practicality-of-conducting-litigation-under-a-pseudonym
|
CC BY-SA 4.0
|
<p>When one goes into a police station (okay, when one is brought in for a recordable offence), one is fingerprinted and identified against big databases of identities. Even if this doesn’t happen, there is still a degree of record checking and matching.</p>
<p>For example, “do we have anyone in the system with this date of birth and similar features but different name?” And other efforts to match the prisoner’s identity with one known to the master database.</p>
<p>In court there appears no effort to exercise skepticism with respect to the litigants’ identities and little safeguards in the way of preventing anyone for standing in for our impersonating any of the parties. Not in the courtroom, and not upon entering the building and passing security. Not even inspection of ID documents.</p>
<p>From experience, this appears true in the magistrates', Crown, and county courts although in criminal proceedings one is asked to confirm one’s identity including date of birth is correct.</p>
<p>In general, is there a reason for this lack of exercised skepticism and forensic scrutiny when courts are generally so principally concerned with truth and probity?</p>
<p>Apart from this empirical/historical question about court practice, what about the legality? One can easily imagine that in Criminal proceedings, impersonating a defendant and then actively, explicitly deceiving the court is unequivocal contempt and perjury.</p>
<p>But suppose one wishes to bring a civil action under an alias that one assumes from the beginning of pre-action proceedings until the conclusion of the action. Practically speaking there appears to be nothing standing in the way of this.</p>
<p>And furthermore, I recall a decision from either the UKHL or the EWCA that discussed how generally the laws of England have always allowed one to assume and use whatever name one may please to.</p>
<p>How does this compute with the litigation question here? Is there anything unlawful of assuming a different name under which one wages a lawsuit?</p>
| 88,273 |
[
{
"answer_id": 88300,
"body": "<p>In an adversarial legal system, the parties are responsible for framing the issues in dispute and adducing relevant evidence. The parties, and perhaps more importantly their lawyers, also have an obligation of candour to the court. Courts routinely accept unchallenged assertions because there are serious consequences for misleading the court, and the opponent (rather than the court which should remain neutral) is in the best position to investigate and prove any suspected dishonesty.</p>\n<p>It is a matter for the party commencing proceedings (plaintiff or prosecutor) to decide how the parties will be named. People often change their names, and may use multiple spellings. It is not uncommon for typographical or other errors to appear. Generally, it is in the interest of at least one party to name the parties "correctly," ie. consistently with other government records that will be used to enforce any judgment, but a person's name is ultimately a formal matter that can be corrected if necessary. In cases of uncertainty, aliases can be specified, as occurred in <em>Microsoft v McDonald (aka Gary Webb)</em> <a href=\"https://www.bailii.org/ew/cases/EWHC/Ch/2006/3410.html\" rel=\"nofollow noreferrer\">[2006] EWHC 3410 (Ch)</a>.</p>\n<p>A person who is genuinely known by an alias (ie. the use of the alias is not part of an attempt to mislead the court) should use their "real" name in court, but could potentially conduct litigation using the alias without anybody noticing. However, court proceedings are public and this would not necessarily protect the person's identity. To achieve this, an anonymity order under <a href=\"https://www.legislation.gov.uk/uksi/1998/3132/rule/39.2\" rel=\"nofollow noreferrer\">CPR 39.2</a> is required, as explained in <em>XXX v Camden London Borough Council</em> <a href=\"https://www.judiciary.uk/wp-content/uploads/2020/11/XXX-v-London-Bor-of-Camden-judgment.pdf\" rel=\"nofollow noreferrer\">[2020] EWCA Civ 1468</a> [13]–[22].</p>\n",
"score": 3
}
] |
[
"england-and-wales",
"rules-of-court",
"court",
"litigation",
"any-jurisdiction"
] |
Interpretation of "When Children Are Present" specifically on California speed limit signs
| 3 |
https://law.stackexchange.com/questions/64485/interpretation-of-when-children-are-present-specifically-on-california-speed-l
|
CC BY-SA 4.0
|
<p>The question <a href="https://law.stackexchange.com/questions/49311/what-do-x-speed-limit-while-children-are-present-street-signs-mean-specific">What do, "X speed limit while children are present", street signs mean, specifically?</a> has an upvoted answer indicating that the "When children are present" speed limit varies by jurisdiction.</p>
<p>This question, in response, is specifically for one jurisdiction: California. What is the meaning of "when children are present" on speed limit signs (non-flashing)? Does it refer to only tehe periods where children are <em>visibly</em> present? Or school hours? Or when there is an after-school football game? How is one to ascertain the presence or absence of children from the school under <strong>Californian</strong> law?</p>
| 64,485 |
[
{
"answer_id": 64489,
"body": "<p>Well, the <a href=\"https://www.dmv.ca.gov/portal/handbook/california-driver-handbook/laws-and-rules-of-the-road/\" rel=\"nofollow noreferrer\">online California DMV Laws and Rules of the Road</a> says this:</p>\n<blockquote>\n<p>When driving within 500 to 1,000 feet of a school while children are\noutside or crossing the street, the speed limit is 25 mph unless\notherwise posted. Also, if the school grounds have no fence and\nchildren are outside, never drive faster than 25 mph. Some school\nzones may have speed limits as low as 15 mph.</p>\n</blockquote>\n<p>Not really as clear as we might like. I personally follow the posted speed limit during school hours when school is in session, even if there are no kids outside the school building and yards. I don't know if a parent is picking up a kid for an appointment or because they're sick and might be crossing the street. The schools in my area have tiny parking lots and people end up parking on the street even though there's no crosswalk in the area (there is one at a stop light a long block away--no one bothers to use it, just jaywalks instead).</p>\n<p>Mainly, I don't want to have to argue with a police officer on whether I'm allowed to speed at that instance in time.</p>\n",
"score": 1
}
] |
[
"california",
"speeding"
] |
Regarding UGC service provider TOS clause, how to interpret the assertion that a user "shall defend" the provider?
| 2 |
https://law.stackexchange.com/questions/88291/regarding-ugc-service-provider-tos-clause-how-to-interpret-the-assertion-that-a
|
CC BY-SA 4.0
|
<p>Specifically, the user of the User Generated Content platform, according to the services Terms of Service is expected to defend the service in the event that a third party makes a claim involving infringement by the user of the third party's intellectual property or copy right.</p>
<p>How can anyone be expected to go to the defense of a company when they themselves are under threat for misconduct?</p>
<p>This does not seem appropriate.</p>
<p>Can someone help me understand why this terminology is used?</p>
<p>If it matters the company is in the United States.</p>
| 88,291 |
[
{
"answer_id": 88296,
"body": "<h2>It means you pay for their lawyers</h2>\n<p>It's no doubt part of a general indemnity clause; these are pretty common.</p>\n<p>The way it works is you do something that puts them at legal hazard, someone sues them, they sue you, you are on the hook for the cost of your defence and the cost of their defence.</p>\n",
"score": 2
}
] |
[
"legal-terms"
] |
Since the UN charter is amendable easily. What is stopping nations from amending it to have less UN obligations?
| 0 |
https://law.stackexchange.com/questions/88289/since-the-un-charter-is-amendable-easily-what-is-stopping-nations-from-amending
|
CC BY-SA 4.0
|
<p>It seems like a pretty intuitive thing to do. They could even invalidate various treaties they have signed.</p>
| 88,289 |
[
{
"answer_id": 88295,
"body": "<h2>The <a href=\"https://www.un.org/en/about-us/un-charter#:%7E:text=Since%20the%20UN%27s%20founding%20in,1963%2C%201965%2C%20and%201973.\" rel=\"nofollow noreferrer\">UN charter</a> is really hard to amend</h2>\n<p>It requires approval by two-thirds of its member states, and ratification by two-thirds of its member states, including in both cases by the five permanent members of the security council (the USA, the UK, Russia, China, and France). It's happened a total of 3 times, in each case, for completely non-controversial reasons.</p>\n",
"score": 3
}
] |
[
"treaty"
] |
Are there any cases where mistake of law can be a defence?
| 0 |
https://law.stackexchange.com/questions/88184/are-there-any-cases-where-mistake-of-law-can-be-a-defence
|
CC BY-SA 4.0
|
<p>Courts generally don't allow mistake of law as a defence but are there any cases other than insanity where mistake of law is used as a or has been used as a successful defence ?</p>
| 88,184 |
[
{
"answer_id": 88294,
"body": "<p>In the United States, mistake of law can be an exception for crimes where "willfulness" is an element.</p>\n<p>This issue comes up quite often in tax law. If you fail to properly file or pay your taxes because your accountants at Ernst & Young told you the law was something it was not, you haven't violated the law because you reasonably believed you had complied with it.</p>\n",
"score": 1
}
] |
[
"criminal-law"
] |
What was the importance of Dr. Bower's attempts to purchase Brewdog's Pink IPA, both successful and unsuccessful, to his claim?
| 0 |
https://law.stackexchange.com/questions/88268/what-was-the-importance-of-dr-bowers-attempts-to-purchase-brewdogs-pink-ipa
|
CC BY-SA 4.0
|
<p>Could <a href="https://www.independent.co.uk/life-style/brewdog-man-sues-court-case-pink-ipa-beer-for-girls-gender-pay-gap-a8963521.html" rel="nofollow noreferrer">his claim</a> still have been successful if he had only presented a printed advertisement showing the sexist promotional pricing scheme?</p>
<p>To put it another way, if a black man took a picture of a sign outside a business that said "no blacks, no dogs, no Irish," would he have the right to claim discrimination, or would he have to actually enter the premises and try to be served, and then be refused service, in order to have a valid claim?</p>
| 88,268 |
[
{
"answer_id": 88293,
"body": "<h2>You must have a sufficient connection to the harm</h2>\n<p>One of the key factors for taking legal action is the concept of <a href=\"https://en.wikipedia.org/wiki/Standing_(law)\" rel=\"nofollow noreferrer\">standing</a>.</p>\n<p>Standing is complicated, but, in brief, the act or omission complained of must be one that directly harms you (the "something to lose" doctrine), you are reasonably related to the situation (the "chilling effect" doctrine), or the law explicitly grants standing.</p>\n<p>The advertisement would probably be sufficient since, as a member of the discriminated-against class, the advertisement was directed at him. His damages would likely have been less as he did not suffer the "humiliation" described by the court.</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"discrimination",
"equality-act-2010"
] |
Creative commons license on sheet music of classical pieces and performing in public
| 2 |
https://law.stackexchange.com/questions/88265/creative-commons-license-on-sheet-music-of-classical-pieces-and-performing-in-pu
|
CC BY-SA 4.0
|
<p>Suppose that there is a piece of classical music (let's say written by Bach in 1726) and there is a recent arrangement (sheet music) of that piece which was made available through Creative Commons Attribution-Share Alike 4.0 license. Am I allowed to perform this arrangement in public?
Would I be required to give attribution to the person who arranged the sheet music before performing the arrangement?</p>
<p>Moreover, am I allowed to record the music in the arrangement and post it online (say on YouTube)? What kind of attribution would I be required to give in this case?</p>
| 88,265 |
[
{
"answer_id": 88290,
"body": "<h2>Is this arrangement protected by copyright?</h2>\n<p>There is no doubt that the original Bach composition is public domain - that is, it is not protected by copyright. Whether a modern arrangement is a copy and therefore not protected or a derivative work therefore protected depends on how substantial the change is from the original.</p>\n<p>This arrangement is probably different enough from Bach's simply because it will be written in modern musical notation - a language unavailable to Bach. It may also be an arrangement for instruments that didn't exist for Bach: like the piano. It will, therefore, probably have a copyright of its own.</p>\n<p>Unless it's a copy of an intermediate arrangement that is itself under copyright but let's not go there.</p>\n<p>So, probably, it has copyright, and for you to use it, you have to do so with permission - the licence is that permission.</p>\n<h2>The <a href=\"https://creativecommons.org/licenses/by/4.0/\" rel=\"nofollow noreferrer\">CC-BY-4.0</a> licence</h2>\n<p>This licence allows you to share and adapt the work, providing you give attribution.</p>\n<blockquote>\n<p>Am I allowed to perform this arrangement in public?</p>\n</blockquote>\n<p>Yes, that's an adaptation.</p>\n<blockquote>\n<p>Would I be required to give attribution to the person who arranged the sheet music before performing the arrangement?</p>\n</blockquote>\n<p>You must give attribution. Before, at the same time immediately after are all good:</p>\n<blockquote>\n<p>You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use.</p>\n</blockquote>\n<p>You could do this by making an announcement, including the information in a programme, on a website about the performance, or any other reasonable way of getting the message out there.</p>\n<blockquote>\n<p>Moreover, am I allowed to record the music in the arrangement and post it online (say on YouTube)?</p>\n</blockquote>\n<p>Yes, that is an adaptation (film) of the adaptation (musical performance) of the original (sheet music).</p>\n<blockquote>\n<p>What kind of attribution would I be required to give in this case?</p>\n</blockquote>\n<p>See above.</p>\n",
"score": 1
}
] |
[
"copyright",
"intellectual-property",
"international",
"music",
"creative-commons"
] |
Can state or city police officers enforce the FCC regulations?
| 14 |
https://law.stackexchange.com/questions/88286/can-state-or-city-police-officers-enforce-the-fcc-regulations
|
CC BY-SA 4.0
|
<p>Suppose I'm using an amateur radio transceiver in my car. I'm not breaking any traffic laws, but I am talking in a secret code, which is illegal under the FCC regulations. Can a state or city police officer pull me over and detain me or write a ticket for my violation of the FCC regulations?</p>
<p>I'm using amateur radio as an example, but the question applies to any part of the Code of Federal Regulations.</p>
| 88,286 |
[
{
"answer_id": 88287,
"body": "<p>A state or local law enforcement officer cannot enforce federal laws unless the officer has been deputized by the federal government to do so.</p>\n<p>State and local law enforcement officers are sometimes deputized to enforce federal law, but this would almost never be done in the case of FCC regulations.</p>\n",
"score": 23
}
] |
[
"united-states",
"police",
"regulations"
] |
Alice wants a divorce but Bob does not. What can Bob do to stonewall the process and what are the consequences of doing so?
| 3 |
https://law.stackexchange.com/questions/88259/alice-wants-a-divorce-but-bob-does-not-what-can-bob-do-to-stonewall-the-process
|
CC BY-SA 4.0
|
<p>Alice wants to get a divorce from Bob. Bob is an upstanding member of society. There is no credible case against Bob for any crimes or impropriety (no abuse, infidelity, etc). Bob does not want Alice to divorce him. Alice and Bob have no prenuptial agreement. Alice has asked Bob to leave their shared house, but he refuses and maintains residence at the property.</p>
<p>What can Bob do to stonewall the process?</p>
<p>What happens if he refuses to sign the divorce papers? If those consequences are highly detrimental, what is his next course of action after delaying as long as possible? And then what are the consequences from that action? (Continuing on until he is out of options)</p>
<p>What is the ultimate outcome? Can Alice unilaterally force a divorce? What are the conditions of such a divorce likely to be? (alimony, the house, other property, etc)</p>
<p>This is a hypothetical and I am interested in the United States law as a whole, but if necessary I will specify New York State to establish a concrete jurisdiction.</p>
| 88,259 |
[
{
"answer_id": 88264,
"body": "<p>Prior to 2010, New York was the last state to have only fault based divorce. <a href=\"https://www.legalzoom.com/articles/no-fault-and-fault-based-divorce-in-new-york-a-checklist\" rel=\"nofollow noreferrer\">In 2010</a>, the fault based grounds for divorce were retained, but a no fault ground for divorce was added and has become very popular.</p>\n<p>In a no fault divorce:</p>\n<blockquote>\n<p>All that has to be proved and stated in your divorce papers is that\nthe marriage has been “irretrievably broken" for at least six months.\nOne spouse must state this under oath.</p>\n</blockquote>\n<p>With respect to this point:</p>\n<blockquote>\n<p>Alice has asked Bob to leave their shared house, but he refuses and\nmaintains residence at the property.</p>\n</blockquote>\n<p>The judge will almost certainly at the very outset (probably within a month or two, quite possibly in a matter of days) order one spouse out of the house in temporary orders if either spouse objects to continued cohabitation.</p>\n<p>Temporary orders at the outset of a divorce establishing a provisional status quo with separated parties is routine. In a divorce, title to the residence is pretty much irrelevant, and so are the wishes of the adults unless they agree.</p>\n<p>There is no presumption in favor of either party, i.e. neither for or against Bob, and neither for nor against Alice, in a temporary orders hearing, based upon who filed for divorce or who lived there at the time of temporary orders. There is, however, a very strong imperative to not have people who are getting divorced cohabiting when one or both of the parties doesn't want to cohabit. Cohabitation would only in the most extraordinary case be imposed on a party who opposed it during divorce proceedings.</p>\n<p>The judge looks at the facts and circumstances and decides for one or the other without considering at all who filed for divorce, and without seriously considering what either of them want (if they don't agree). Once a divorce has been commenced, everything is up for grabs without regard to who filed for divorce.</p>\n<p>Usually, temporary use of the residence if awarded to the primary caretaker of the children if there is one, so that the children's lives can be disrupted as little as possible. But, a judge in a temporary orders hearing has immense discretion.</p>\n<p><a href=\"https://en.wikipedia.org/wiki/Rudy_Giuliani#Marriages_and_relationships\" rel=\"nofollow noreferrer\">For example</a>, Rudy Giuliani wife was granted occupancy of his official residence as Mayor of New York City during one of his three divorces: "Giuliani moved out of Gracie Mansion by August 2001 and into an apartment with a couple he was friends with."</p>\n<blockquote>\n<p>What can Bob do to stonewall the process?</p>\n</blockquote>\n<p>Not all that much other than insisting on disputing all matters to be resolved in the divorce and taking them to trial. Bob can't prevent the divorce from happening and can't do all that much to slow down the process any more than insisting on taking everything to trial does.</p>\n<p>Generally speaking, efforts to unjustified efforts to delay the process and the inevitable will be penalized and it is unethical for Bob's lawyer to use such tactics.</p>\n<p>If it is apparent to the judge that Bob is trying to stonewall, this will be perceived as defiance of the court's authority in a case where the judge has massive discretion to make a determination on the merits. This is unwise, although there is no specific consequence that could necessarily be assigned to this kind of perception.</p>\n<blockquote>\n<p>What happens if he refuses to sign the divorce papers?</p>\n</blockquote>\n<p>A process server delivers the papers to him, and then a judge decides how to resolve the disputed issues related to custody, property, child support, alimony, and attorney fees. Bob's consent is not required for anything. Bob could speed things up by agreeing to various things, but only so much.</p>\n<blockquote>\n<p>If those consequences are highly detrimental, what is his next course\nof action after delaying as long as possible? And then what are the\nconsequences from that action? (Continuing on until he is out of\noptions)</p>\n</blockquote>\n<p>Fighting for the sake of fighting rarely produces an optimal outcome. Delaying as long as possible is almost never the best strategy. If Bob litigates needlessly, he is likely to see most of both side's attorney fees allocated to him and to get a custody arrangement that is rigid in a way that will be detrimental to him in the long run.</p>\n<blockquote>\n<p>What is the ultimate outcome? Can Alice unilaterally force a divorce?</p>\n</blockquote>\n<p>Yes.</p>\n<blockquote>\n<p>What are the conditions of such a divorce likely to be? (alimony, the\nhouse, other property, etc)</p>\n</blockquote>\n<p>An equitable but not equal division of property, a parenting time and parental responsibility order that a judge finds to be in the best interests of the children, child support based upon child support guidelines with statutorily allowed adjustments if any are present, and alimony based on many factors but mostly duration of the marriage and the relative incomes of the parties.</p>\n<p>The specific award could vary significantly even in case where the lawyers present exactly the same facts to two different judges in the same courthouse, without either judge committing reversible error.</p>\n<blockquote>\n<p>This is a hypothetical and I am interested in the United States law as\na whole, but if necessary I will specify New York State to establish a\nconcrete jurisdiction.</p>\n</blockquote>\n<p>For what it is worth, New York is somewhat atypical. But the broad outlines of no fault divorces are reasonably similar.</p>\n<p>One factor that makes New York State divorces different from some no fault states is that marital fault can be considered in some cases in the substantive decision on the merits. But this is no applicable in the case of this question where, by assumption, there is no marital fault present.</p>\n",
"score": 3
}
] |
[
"united-states",
"new-york-state",
"divorce"
] |
What is the correct venue in which to claim for one’s own needlessly wasted or lost time?
| 2 |
https://law.stackexchange.com/questions/88252/what-is-the-correct-venue-in-which-to-claim-for-one-s-own-needlessly-wasted-or-l
|
CC BY-SA 4.0
|
<p>Suppose, for example, that a business screws up in a way that harms a customer, and the customer is told that they need to return after 11am on the following day when they will be able to have the problem rectified. The customer returns, but is then rather told that they must return again in two days and the business will be able to resolve the issue. Perhaps this happens again a further several times, with the result that the customer has made some number of wasted journeys to the business.</p>
<p>Or alternatively, suppose that a business promulgates advertisements offering something at a certain price, which a person sees, and then travels to the business only to be told that the advertisement was actually a mistake, and that offer is not active.</p>
<p>In each of these cases or similar ones, suppose that the customer would like to claim compensation for their lost time spent on the fruitless journeys to and from the business. The explanation of the purpose of small claims explicitly disallows claims of compensation for one’s own time. So, what is the appropriate venue for claiming back one’s own time and effort, and how can it be valued if not as legal costs under the standard rate of £19ph for litigants in person?</p>
<p>And what stages of a dispute’s work can be included in legal costs? For example, if a dispute goes to court after pre-action protocol correspondence, which itself perhaps employed the help of a solicitor or required hours of legal research, and itself followed hours of failed attempts trying to get the issue resolved with customer service on the phone or traveling to and from the place of business, are the energies expended at each of those stages all reclaimable as “costs”? Can they be reclaimed at all? Why, or why not, and if so, how?</p>
| 88,252 |
[
{
"answer_id": 88277,
"body": "<h2>There isn't one</h2>\n<p>In general, you cannot sue someone for wasting your time.</p>\n<p>There are two general exceptions:</p>\n<ul>\n<li>you have a contract that says you can. The most common example of this is <a href=\"https://en.wikipedia.org/wiki/Demurrage\" rel=\"nofollow noreferrer\">demurrage</a>.</li>\n<li>The person wasted your time deliberately - not because things they expected to happen haven't happened. You suffered some financial loss, such as lost wages or transport costs. Finally, you must be able to prove that they knew you would suffer financial harm.</li>\n</ul>\n<p>If you fall into one of these exceptions, you don't start by seeing them; you make a demand for payment and if that cannot be settled by negotiation, you sue them in a court of competent jurisdiction - given the sums likely involved in your situation, a small claims court.</p>\n",
"score": 1
},
{
"answer_id": 88281,
"body": "<p>“Wasted time” is not an ascertainable legal damage as an unmet scope of work requirements <em>is</em> in the same effect. The area of law is consumer fraud, and the judge determines if there was a bona fide attempt made. Sometimes time can be wasted needlessly but not carelessly, otherwise exclusionary conduct would be legal.</p>\n<blockquote>\n<p>Goods must be fit for their purpose, including any particular purpose the\nconsumer made known to the seller before the contract. (Competition and Markets Authority, <em>Unfair Contract Term Guidance, Guidance on the unfair terms provisions in the Consumer Rights Act 2015, 4.13: Blacklisted Terms and Notices: Goods</em>, 31 July 2015)</p>\n</blockquote>\n",
"score": 0
}
] |
[
"england-and-wales",
"civil-procedure",
"small-claims-court"
] |
Can video game fonts (or other least protectable content) be recreated without breaching a contract?
| -3 |
https://law.stackexchange.com/questions/87965/can-video-game-fonts-or-other-least-protectable-content-be-recreated-without-b
|
CC BY-SA 4.0
|
<p>For instance Valve has a policy that recreating fonts/typefaces from their games (that are not protected by copyright) is a breach of the Steam Subscriber Agreement (SSA). But as far as I know the SSA does not apply when the user has never used Steam, and these font(s) can be obtained from the websites of the respective game(s) for recreation (they do <em>not</em> have hotlinking/download protection), so why this policy exists?</p>
| 87,965 |
[
{
"answer_id": 88280,
"body": "<p>In order to be in breach of a contract, one must be in <a href=\"https://en.m.wikipedia.org/wiki/Privity_of_contract\" rel=\"nofollow noreferrer\">privity of contract</a> with the other party.</p>\n<p>I, for example, am not in privity of contract with Valve. If I were to reproduce their fonts or typefaces, or even if I were to infringe Valve's copyright, I would still not be party to any contract that I could be in breach of.</p>\n",
"score": 0
}
] |
[
"breach-of-contract",
"video-games"
] |
How can a jury know about jury nullification?
| 13 |
https://law.stackexchange.com/questions/176/how-can-a-jury-know-about-jury-nullification
|
CC BY-SA 4.0
|
<p>It appears that jurors are not allowed to be told that they can ignore the law and thus use their right of jury nullification.</p>
<p><a href="https://en.wikipedia.org/wiki/Jury_nullification#Canada" rel="noreferrer">https://en.wikipedia.org/wiki/Jury_nullification#Canada</a></p>
<blockquote>
<p>The contrary principle contended for by Mr. Manning, that a jury may be encouraged to ignore a law it does not like, could lead to gross inequities. One accused could be convicted by a jury who supported the existing law, while another person indicted for the same offence could be acquitted by a jury who, with reformist zeal, wished to express disapproval of the same law.</p>
<p>…</p>
<p>But recognizing this reality is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so.</p>
</blockquote>
<p>Since they're apparently still allowed to use this right, only not be explicitly instructed in court that they can use it, doesn't it produce the very problem mentioned above by Mr. Manning? I.e., in any particular trial one juror may have prior knowledge of the right of nullification, in which case the jury may use it; while all other juries will carry out their obligation ignorant of it.</p>
| 176 |
[
{
"answer_id": 188,
"body": "<p>Jurors don't have a \"right\" to jury nullification per-se. The \"right\" of jury nullification is really just a logical consequence of other rights that the jury and the defendant have</p>\n\n<blockquote>\n <p>The American jury draws its power of nullification from its right to\n render a general verdict in criminal trials, the inability of criminal\n courts to direct a verdict no matter how strong the evidence, the\n Fifth Amendment’s Double Jeopardy Clause, which prohibits the appeal\n of an acquittal,[2] and the fact that jurors can never be punished for\n the verdict they return.</p>\n</blockquote>\n\n<p>In fact, the court doesn't want juries to nullify, because that undermines the rule of law, and they might penalize lawyers tho try to argue for nullification</p>\n\n<blockquote>\n <p>The 1895 decision in Sparf v. U.S.,[24] written by Justice John\n Marshall Harlan held that a trial judge has no responsibility to\n inform the jury of the right to nullify laws. It was a 5-4 decision.\n This decision, often cited, has led to a common practice by United\n States judges to penalize anyone who attempts to present legal\n argument to jurors and to declare a mistrial if such argument has been\n presented to them. In some states, jurors are likely to be struck from\n the panel during voir dire if they will not agree to accept as correct\n the rulings and instructions of the law as provided by the judge.[25]</p>\n</blockquote>\n\n<p>Source: <a href=\"https://en.wikipedia.org/wiki/Jury_nullification_in_the_United_States\">https://en.wikipedia.org/wiki/Jury_nullification_in_the_United_States</a></p>\n\n<hr>\n\n<p>As far as how would juror's know about jury nullification, they could have read about the process before being selected for jury duty. Some Juries might also rule contrary to their instructions without actually having heard about jury nullification because they have some sort of sympathy with the defendant.</p>\n",
"score": 11
},
{
"answer_id": 200,
"body": "<p>This is an interesting corner question that illuminates much larger and fundamental facts about law and government:</p>\n\n<p>In court the law is whatever the judge says it is. (And if you are subject to the court and disagree with the judge's assertion of the law then your recourses are appeals to higher courts, attempts to have the law changed or clarified, and/or attempting to remove the judge from his seat.) It's not surprising that courts have a negative view of anything that undermines their authority and power. Just as it's unlikely that the government that creates the laws will go to any lengths to undermine them, e.g., by legally requiring juries be informed of their innate power of nullification.</p>\n\n<p>Conflicts of interest like these are what motivate the study and learning of civics. Historically, at least in the United States, the necessity of having citizenry who are fully aware of their civic rights and duties has been perhaps the purest argument in favor of <em>public</em> education. And since some people think the education system isn't quite meeting <em>its</em> purpose, there are advocacy groups like the <a href=\"http://fija.org/\" rel=\"noreferrer\">Fully Informed Jury Association</a>, which addresses this particular issue.</p>\n",
"score": 5
},
{
"answer_id": 189,
"body": "<p>\"Jury nullification\" is normally practiced by individual jurors, who know about it. Of course, if only one person knows, s/he could educate the whole group of 12.</p>\n\n<p>Jury nullification is one of those kinds of things in life where, \"if you have to ask, it means that you can't do it.\" It is barely allowed under U.S. common law, which is derived from English common law, but is kind of a \"dirty little secret\" that is normally kept from the \"masses.\"</p>\n",
"score": 3
},
{
"answer_id": 88275,
"body": "<p>This is why juries traditionally consist of twelve people. The number should be large enough to assuage problems of individual or small group bias and to include sufficient knowledgeability and variety of experience, and yet be small enough to be practical.</p>\n<p>All jurors should know that they do not have to conform their verdict to favor the law as written. This is why the Constitution expressly states that the judicial power extends "to all cases, in <strong>Law</strong> and <strong>Equity</strong>" between applicable parties and controversies. Law is a self-explanatory term, but the word "equity" refers to rightness or fairness. That is to say, a jury is empowered not only to weigh the facts of a case as they relate to the law, but are also duty-bound to consider what is fair or right. If conscience or common sense contradicts the law or a particular application of it, the jury has full power to find the defendant "not guilty", providing an irresistible check against government overreach and abuse of power.</p>\n",
"score": 1
}
] |
[
"jury-nullification"
] |
Are jurors allowed to teach law to one another?
| 30 |
https://law.stackexchange.com/questions/213/are-jurors-allowed-to-teach-law-to-one-another
|
CC BY-SA 3.0
|
<p>I vaguely recall in the case of Oracle v. Google in regards to Java v. Android that was happening in a district court physically located in San Jose, California, that one of the jurors was familiar with the process and procedure of acquiring patents, and there was some controversy in regards to this fact (he was sharing his experience with the rest of the jurors).</p>
<p>Is a juror having a prior knowledge of law, other than what has been presented to them in the specific court case, allowed to teach others about any such understandings they have held prior to the start of the proceedings? Is it cause for them to be disqualified, or even for the whole panel to be disqualified?</p>
| 213 |
[
{
"answer_id": 272,
"body": "<p>I finally found the actual transcript of the <em>voir dire</em> part of the case mentioned in the question.</p>\n<p><a href=\"http://www.groklaw.net/articlebasic.php?story=2012090614295190\" rel=\"noreferrer\">http://www.groklaw.net/articlebasic.php?story=2012090614295190</a></p>\n<p>As can be evidenced from the transcript, the judge has specifically instructed the two jurors working as engineers at the local tech companies that they'd have to "forget" what they know about both the software engineering and the patent law itself, too, starting their work on the whole case with a completely clean sheet, using a very simple criteria for making decisions:</p>\n<blockquote>\n<p>One side or the other is going to have the burden of proof on -- one side has the burden of proof on some issues, the other side has the burden of proof on other issues. When you go into the jury room to deliberate after you've tried your hardest to understand the evidence, if they haven't educated you on it or if they haven't persuaded you, the party with the burden of proof loses. It's that simple. You don't have to -- you have to make a good faith effort to understand it, but if the party with the burden of proof has failed to do that, the party with the burden of proof loses. That's the standard. You have to -- you, the jury, decide.</p>\n<p>Now, what you cannot do is bring to bear something that you've learned in some other case, some other patent case, about how some piece of equipment works or something like that. You can't do that. It has to be based on the record here.</p>\n</blockquote>\n<p>Then, after a short break and a consultation with the lawyers, where Oracle seems to have expressed some concern to having the computer experts be on the panel, which subsequently prompted the judge to declare the following to the two potential jurors who worked at Cisco and HP:</p>\n<blockquote>\n<p>So this is really going to be directed at both of you, but, you know, you come to the party, so to speak, with some prior training that bears upon the subject matter we're going to be hearing a lot about here. That's okay. That's not disqualifying, but you -- it's okay to use your common sense when you render a verdict, but you cannot add to the record in court something that you know about the way software programming works that the witnesses didn't actually testify to. You see what I'm saying?</p>\n<p>You've got to decide the record -- the case based on the record made here as opposed to adding into it what else you may have known about the way programming and software works.</p>\n</blockquote>\n<p>Since both jurors had so much software and patent experience that they couldn't disregard it easily, they were thus both excused (page 95 of 224).</p>\n<blockquote>\n<p>All right. I think it would be too hard\nfor you to sit in this case and sort out what you knew already\nagainst what is proven or not proven here, and itwould not be\nfair to the parties to have that extra burden even though you\ntwo actually know something about the subject. It's in a way\ntoo bad, but it's for the best. So you two are excused to go\nback to the jury assembly room. Thank you.</p>\n</blockquote>\n<p>The other instructions that the judge gives to the potential jurors is also worth reading (starts on page 36 of 224)</p>\n<p>The full transcript is at <a href=\"http://www.groklaw.net/pdf3/OraGoogle-942.pdf\" rel=\"noreferrer\">http://www.groklaw.net/pdf3/OraGoogle-942.pdf</a>.</p>\n<p>In summary -- <strong>jurors are only allowed to talk to one another when the deliberation process starts, and, no, they are not allowed to bring any "baggage" to the case at stake</strong>.</p>\n",
"score": 19
},
{
"answer_id": 87564,
"body": "<p>A more appropriate example than what was presented @cnst would be considering <em>lawyers</em> on the jury panel.</p>\n<p>That happens every so often, and typically to the greatest concern to district attorneys in criminal cases. However, this is generally no cause to strike a jury, and if the party used their no-cause strikes, that jury will remain on the penal.</p>\n<p>As you can imagine, attorney jurors, during the juries deliberations among themselves, often engage in explaning applicable law to the best of their knowledge which is not on the record or be disclosed outside their deliberations.</p>\n<p>The answer may be not, but in practical terms, when a lawyer explains their point in layman terms through generalized principles and formulations, it will be hard to do much about it.</p>\n",
"score": 1
},
{
"answer_id": 88271,
"body": "<p><strong>Of course.</strong></p>\n<p>Jury deliberations are supposed to be secret.\nJurors can teach anything and everything they personally know that could be helpful towards making an intelligent and just verdict.</p>\n<p>Jurors are free to employ:</p>\n<ul>\n<li>Common sense</li>\n<li>Conscience</li>\n<li>Compassion</li>\n<li>Personal knowledge, experience and understanding</li>\n<li>etc.</li>\n</ul>\n<p>to come up with a verdict.\nThat's what a jury is and why juries exist: To allow defendants to avail themselves of such things as common sense, conscience, experience, and consensus in making a determination of guilt.</p>\n<p>Experience and intelligence cannot be disallowed in the making of a verdict.\nJury instructions that violate any of the above are unconstitutional, null and void, and place the one issuing such instructions in a state of liability for crimes against the people.</p>\n<p>Neither judges nor anyone else has any right to rule any personal knowledge or expertise "out of bounds" on the part of a juror.\nNotice that there is no need in the above case to enter any of the jury's expertise or other information brought by a juror into the court records, so the excuse that the use of experience is disallowed on account of court records is actually a red herring on the judge's part.</p>\n",
"score": 0
}
] |
[
"united-states",
"jury"
] |
Could an employee be held liable for taking parts meant for another assembly line?
| -1 |
https://law.stackexchange.com/questions/88200/could-an-employee-be-held-liable-for-taking-parts-meant-for-another-assembly-lin
|
CC BY-SA 4.0
|
<p>If foreman A of assembly line AA took parts meant for a different assembly line BB for their own crews to use, which would help them meet their production quota but hurt foreman B and their crew, could A be held liable in a civil action or criminal charge? Both A and B and their crews work for the same organization.</p>
| 88,200 |
[
{
"answer_id": 88209,
"body": "<p>The parts are owned by Z, the company. The usual definition of "theft" is as in RCW 9a.56.020:</p>\n<blockquote>\n<p>(a) To wrongfully obtain or exert unauthorized control over the\nproperty or services of another or the value thereof, with intent to\n<em>deprive him or her of such property</em> or services; or (b) By color or aid of deception to obtain control over the property or services of\nanother or the value thereof, with intent to <em>deprive him or her</em> of\nsuch property or services; or (c) To appropriate lost or misdelivered\nproperty or services of another, or the value thereof, with intent to\n<em>deprive him or her</em> of such property or services.</p>\n</blockquote>\n<p>In moving property within the company from one part to another, B has not been deprived of its property. The company might fire A for unauthorized use of company property, but this is not a legal matter, it is an employment matter. B cannot sue A, although B might sue Z if B was punished for not meeting quota, Z knew of the the reason for not meeting quota, and A's motivation was illegally discriminatory (<a href=\"https://casetext.com/case/perez-v-developers-diversified-realty-corp\" rel=\"noreferrer\">Perez v. DDR</a>).</p>\n",
"score": 5
}
] |
[
"criminal-law",
"civil-law"
] |
What does "sign it voluntarily as my own free act" mean?
| 8 |
https://law.stackexchange.com/questions/88187/what-does-sign-it-voluntarily-as-my-own-free-act-mean
|
CC BY-SA 4.0
|
<p>At the very end of a company's severance agreement (for laid-off employees), just before the signature box, the agreement reads (emphasis mine):</p>
<blockquote>
<p>I HAVE CAREFULLY READ THE FOREGOING RELEASE, FULLY UNDERSTAND ITS
MEANING AND CONSEQUENCES, AND <strong>SIGN IT VOLUNTARILY AS MY OWN FREE
ACT</strong>.</p>
</blockquote>
<p>Given that an employee isn't voluntarily laid off (i.e. being faced with this agreement in the first place isn't a voluntary act), and that an employee <em>must</em> sign essentially under the threat of not receiving severance pay and benefits if they don't (i.e. they "voluntarily" sign it in the same way they "voluntarily" don't drive head first into oncoming traffic), this seems like a curious thing to state: It does not seem that the employee is <em>really</em> voluntarily signing it under their own free act. They kind of have to sign it, or they're hosed.</p>
<p>My questions are:</p>
<ol>
<li>What does this language protect the company against?</li>
<li>What employee rights does this forfeit if the employee signs?</li>
</ol>
<p>That is, what purpose does this language serve?</p>
<p>The reason I am wondering is: There are many contracts <em>without</em> this language, are those contracts therefore not protected against claims that signing them was forced? For the implication that "if you don't like it don't sign it", isn't that true of any contract even without this sentence? If the company didn't put this language in, it seems like it would be similar to any other typical contract that also does not have this language, so if it was a generally required protection I would expect to see it all the time. What could make this agreement different as to require that statement?</p>
| 88,187 |
[
{
"answer_id": 88188,
"body": "<p>The "Severance Agreement" is a contract between the company and you. It spells out what the company will do and probably what they expect you to do going forward.</p>\n<p>Simple enough.</p>\n<p>The statement you referenced merely says that you are not being forced to sign the agreement. That's all.</p>\n<p>You don't, presumably, have the option of remaining employed at this company but you DO NOT have to sign this agreement. But if you don't, it's likely that any benefits being promised in the agreement will not be delivered to you.</p>\n<p>So specifically in answer to your questions:</p>\n<ol>\n<li><p>It protects them against a claim that they somehow forced you to sign the agreement.</p>\n</li>\n<li><p>Likely anything that the agreement says the company will do such as pay you a certain amount of money and the like.</p>\n</li>\n</ol>\n<p>Bottom line is that if you don't like the agreement, don't sign it. If you want the benefits they are promising in the agreement, then sign it and move on.</p>\n",
"score": 11
},
{
"answer_id": 88189,
"body": "<blockquote>\n<p>What does "sign it voluntarily as my own free act" mean? What does this language protect the company against?</p>\n</blockquote>\n<p>It secures the signer's admission that he is not being subjected to wrongful termination. It is a form of settlement with which the company could refute claims of wrongful termination, breach of contract, or similar.</p>\n<blockquote>\n<p>What employee rights does this forfeit if the employee signs?</p>\n</blockquote>\n<p>It depends on the jurisdiction, since each legislation might provide different remedies for labor disputes; whether employment is at-will vs. of specific duration, or termination is for [good] cause; and other terms of the employment contract regarding the method of termination.</p>\n<blockquote>\n<p>are those contracts therefore not protected against claims that signing them was forced?</p>\n</blockquote>\n<p>That language is not really necessary. It just tends to make it easier for the employer to refute claims that employee might subsequently file in court or --if mandatory-- for quasi-judicial proceedings.</p>\n",
"score": 7
}
] |
[
"united-states",
"contract-law",
"pennsylvania",
"language"
] |
Turning right from a two-way road onto another two-way road
| 2 |
https://law.stackexchange.com/questions/88234/turning-right-from-a-two-way-road-onto-another-two-way-road
|
CC BY-SA 4.0
|
<p>Alberta's driver's <a href="https://www.alberta.ca/turning.aspx" rel="nofollow noreferrer">guide</a> says "when turning right from a two-way road onto another two-way road, stay centred in your turning lane, and no more than 1 metre (3 feet) from the curb or edge of the road." However, it then says "If it is safe, complete your turn by turning into the first available traffic lane on the right when there is space to allow you to gently accelerate and change lanes. After you complete the turn, look well ahead along your intended path." Does that mean you don't actually have to stay centred in your original turning lane - you can just turn into the first available traffic lane? Thank you!</p>
| 88,234 |
[
{
"answer_id": 88262,
"body": "<p>I am pretty sure what they mean is "Don't swing wide." That is, cross the lane markings or where the lane marking would be if you went straight across the intersection.</p>\n<p>Watch vehicles when they turn--a lot of people swing wide (to the left) when turning right.</p>\n<p>From <a href=\"https://portal.ct.gov/dmv/-/media/DMV/DMV-PDFs/r12eng122019.pdf\" rel=\"nofollow noreferrer\">Connecticut's Driver's Manual (PDF)</a> (emphasis mine):</p>\n<blockquote>\n<p>Where there are no signs or lane markings to control turning, you\nshould turn from the lane that is closest to the direction you want to\ngo and turn into the lane closest to the one you came from. This way,\nyou will cross the fewest lanes of traffic. <strong>When making turns, go from\none lane to the other as directly as possible without crossing lane\nlines or interfering with traffic.</strong> Once you have completed your turn\nand once it is safe to do so, you can change to another lane if you\nneed to. Remember to always look and signal before changing lanes.</p>\n<p>• Right turns. On right turns, <strong>avoid swinging wide to the left before\nmaking the turn</strong>. If you swing wide, the driver behind you may think\nyou are changing lanes or going to turn left and may try to pass you\non the right. If you swing wide as you complete the turn, drivers who\nare in the far lane will not expect to see you there.</p>\n</blockquote>\n",
"score": 0
}
] |
[
"traffic",
"driving"
] |
How are any gun restrictions constitutional?
| 14 |
https://law.stackexchange.com/questions/81356/how-are-any-gun-restrictions-constitutional
|
CC BY-SA 4.0
|
<p>The Second Amendment says (emphasis mine):</p>
<blockquote>
<p>A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms <strong>shall not be infringed</strong>.</p>
</blockquote>
<p>How are any laws restricting the "right of the people to keep and bear arms" constitutional?</p>
| 81,356 |
[
{
"answer_id": 81357,
"body": "<p>Because the Supreme Court, who interprets the meaning of the Constitution, said so:</p>\n<blockquote>\n<p>Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.</p>\n</blockquote>\n<blockquote>\n<p>"District of Columbia, et al., v. Dick Anthony Heller. 554 U.S. 570". United States Supreme Court. June 26, 2008</p>\n</blockquote>\n",
"score": 63
},
{
"answer_id": 81380,
"body": "<p>Constitutional rights generally have limits and exceptions. The First Amendment, for example, reads:</p>\n<blockquote>\n<p>Congress shall make no law ... abridging the freedom of speech, or of the press ...</p>\n</blockquote>\n<p>But laws against obscene publications are constitutional, as are laws against defamation, "fighting words", copyright infringement, false advertisement, fraud, and revealing classified information. In each of these cases the conduct involves written or spoken words, but may still be prohibited without violating the First Amendment. (Although not always, as the "Pentagon Papers" case shows, for one example.)</p>\n<p>Similarly, laws regulating gun ownership and possession to some degree have been held constitutional. For the matter of that, the Second Amendment was not generally considered to provide an individual right to gun ownership until the <em>Heller</em> case quoted in another answer, and some legal scholars still think that the Second should be limited to cases involving "a well-regulated militia".</p>\n",
"score": 18
},
{
"answer_id": 81379,
"body": "<p><a href=\"https://law.stackexchange.com/a/81357/2618\">Ron Trunk gave the right answer</a>. For those who are confused about the meaning of "well regulated", see the <a href=\"https://constitutioncenter.org/images/uploads/news/CNN_Aug_11.pdf\" rel=\"noreferrer\">full analysis</a> (PDF) of the Second Amendment by Jeffrey Rosen, a law professor at George Washington University and President and CEO of the National Constitution Center, and Jack Rakove, the William Robertson Coe Professor of History at Stanford University. His book "Original Meanings: Politics and Ideas in the Making of the Constitution" won a Pulitzer Prize in History. (Emphasis mine in the following quotation.)</p>\n<blockquote>\n<p>What did it mean to be well regulated? One of the biggest challenges in interpreting a centuries-old document is that the meanings of words change or diverge. <strong>"Well-regulated in the 18th century tended to be something like well-organized, well-armed, well-disciplined," says Rakove. "It didn't mean 'regulation' in the sense that we use it now, in that it's not about the regulatory state.</strong> There's been nuance there. It means the militia was in an effective shape to fight." In other words, it didn't mean the state was controlling the militia in a certain way, but rather that the militia was prepared to do its duty.</p>\n</blockquote>\n",
"score": 17
},
{
"answer_id": 81435,
"body": "<p>As explained in Justice Thomas's <a href=\"https://www.scribd.com/document/579432436/Supreme-Court-Decision-in-New-York-State-Rifle-Pistol-Assn-Inc-v-Bruen\" rel=\"noreferrer\">recent decision</a>, the meaning of the constitution has to be interpreted in light of its <em>historical context</em>. If the people who wrote "shall not be infringed" nevertheless at the time routinely applied particular types of regulation to arms, then we can infer that their intention was limited in that way. Exceptions to the plain meaning of constitutional language have to be rooted in a historical tradition in which the rights in question were at the time understood to be limited. In the particular case of the 2nd amendment, Thomas observes that "The statutes essentially prohibited bearing arms in a way that spread “fear” or “terror” among the people, including by carrying of “dangerous and unusual weapons.”" We can therefore interpret this to say that while everyone has a right to responsibly bear arms for legitimate purposes like sport, hunting, self-defence, defence of the innocent, law-enforcement, and as a last ditch defence against tyranny, they <em>don't</em> (and never did) have the right to do so in a way that causes or threatens unjustified harm to others - threatening violence, intimidating, or for the purposes of committing crimes. Having a right to bear arms does not imply a right to do so in any manner possible, and the historical record shows that it was originally interpreted as excluding the use of arms in reckless, dangerous, or criminal behaviour.</p>\n",
"score": 11
},
{
"answer_id": 81529,
"body": "<p>Despite sweeping language in the Bill of Rights, the Supreme Court has consistently ruled that nearly every right can be subjected to restrictions. Most of those restrictions must satisfy at least a few criteria though.</p>\n<p>First of all, almost any law has to satisfy a requirement that it be written to further some legitimate state interest. The minimum is that it must serve some "rational state interest". The strictest is that it must serve some "compelling state interest", and in between those is an intermediate level, that's applied primarily to cases involving discrimination against protected classes of people. A few cases have also talked about "heightened scrutiny", and it's not 100% clear whether that's exactly the same as intermediate scrutiny or not (but at the very least, it's pretty similar).</p>\n<p>Assuming it meets that requirement (e.g., the state shows that it's for public safety) the next point to consider is whether it's tailored narrowly to infringe on rights as little as possible while accomplishing its goal.</p>\n<p>So for example, let's consider when cars first started to come into wide use, and some people got killed in car accidents at night. The state has a legitimate interest in preventing that danger, so some sort of motor vehicle safety law passes the first hurdle.</p>\n<p>A law requiring headlights when driving at night probably passes the second hurdle. A law prohibiting all cars probably doesn't.</p>\n<p>Gun control laws have a pretty easy time passing the first hurdle. The claim is nearly always going to be that it's to protect public safety, and there's little question that'll be accepted as a legitimate state interest.</p>\n<p>The second tends to be a lot harder hurdle for gun control laws to honestly meet. Oh, don't get me wrong. Some are obvious and easy. Prohibiting arms in prisons is obvious. Prohibiting an accused gangster from carrying a machine gun into the court room where he's on trial...again, pretty easy to support.</p>\n<p>But what people normally think of as gun control laws? A field rife with battling statistics, and little room for a court to conclude with certainty that a particular law is really infringing on rights only as much as truly needed to maintain public safety.</p>\n<p>I suppose I should add a couple of caveats.</p>\n<p>First of all, a court only rules on a real case, so (for example) a lot of the old "blue laws" can remain on the books almost indefinitely as long as nobody's ever charged with breaking them, even though in a lot of cases it's pretty clear that they don't serve any legitimate state interest.</p>\n<p>Second, over time, ideas of what constitutes a "legitimate state interest" change, often dramatically. 200 years ago, quite a few courts wouldn't have even questioned the "fact" that returning slaves to their owners was obviously a legitimate state interest. I feel fairly safe guessing that most people reading this today disagree. As much as we might wish otherwise, even supreme court justices are human, and influenced by the prevailing thought of the time, no matter how bad that may look in retrospect (e.g, Dred Scott).</p>\n",
"score": 0
}
] |
[
"united-states",
"us-constitution",
"weapons",
"second-amendment"
] |
What's the minimum time that an indeterminate life sentence (e.g., "25 years to life") may have in the US?
| 2 |
https://law.stackexchange.com/questions/88231/whats-the-minimum-time-that-an-indeterminate-life-sentence-e-g-25-years-to
|
CC BY-SA 4.0
|
<blockquote>
<p>For example, sentences of "15 years to life," "25 years to life," or "life with mercy" are called "indeterminate life sentences" <a href="https://en.wikipedia.org/wiki/Life_imprisonment_in_the_United_States" rel="nofollow noreferrer">(Wikipedia)</a></p>
</blockquote>
<p>What's the minimum time that an indeterminate life sentence may have in the US? In the 3 given examples, it's 15 years, but I wonder if a sentence may be even lower.</p>
| 88,231 |
[
{
"answer_id": 88235,
"body": "<h2>in general the first named number</h2>\n<p>Depending on the case, one might get a different sentence of the three. That's the time that is to be served at the minimum and which is needed to determine when parole shall happen: Shall it be after the parole request time of a 15-year, 25-year or life-long sentence's parole date comes along?</p>\n<p>How much of the sentence needs to be done or what is the appropriate time is state dependent: As <a href=\"https://pap.georgia.gov/parole-consideration/parole-process-georgia/life-sentences\" rel=\"nofollow noreferrer\">Georgia</a> explains, someone in the latter category sentenced today is in for at least 30 years, between 1995 and 2006 the wait time is 14 years and before 1995 it's 7 years. Multiple sentences can modify this timeframe.</p>\n",
"score": 2
},
{
"answer_id": 88260,
"body": "<blockquote>\n<p>What's the minimum time that an indeterminate life sentence may have\nin the US?</p>\n</blockquote>\n<p>In addition to the federal criminal code (Title 18 of the United States Code) and every U.S. state has criminal offenses set forth in a criminal code. The federal government and many U.S. states also have criminal offenses that are set forth in statutes outside the primary criminal code for the jurisdiction.</p>\n<p>Not every U.S. state has indeterminate sentencing, and the current trend is away from indeterminate sentencing, but in jurisdictions that do, there can be great variation. Some jurisdictions use indeterminate sentencing for almost all felony offenses, while others use it only for exceptionally serious offenses like rape and murder.</p>\n<p>The minimum sentence in an indeterminate sentence imposed upon a single individual is the time at which a person becomes eligible for parole.</p>\n<p>Typically, parole boards do not exist at the local government level, so typically, indeterminate sentencing is not used for misdemeanor offenses.</p>\n<p>Usually, incarceration in a state prison is reserved for sentences of one year or more, so usually, the minimum range of an indeterminate sentence can be as short as one year.</p>\n<p>In practice, an indeterminate sentence can also be reduced for time served prior to conviction, and sometimes, but not always, it can be reduced for what is known as "good time" which is an administrative sentence reduction granted by prison officials when an inmate behaves well and meet institutional guidelines.</p>\n<p>So, an indeterminate sentence, for example, of 1-5 year could be reduced to a matter of months before a defendant is eligible for parole in some circumstances.</p>\n<p>In Colorado, for example, most crimes a punishable by determinate sentences, but sex offenses are punished by indeterminate sentences, with a sentence of two years to life, for example, being a common sentence for a comparatively low level sex offense, such as felony unlawful sexual conduct or internet luring of a child. <em>See, e.g.</em>, Colorado Revised Statues §§ 18-1.3-401, 18-1.3-1003, 18-1.3-1004, 18-3-306, and 18-3-404.</p>\n",
"score": 0
}
] |
[
"united-states",
"sentencing",
"prison"
] |
Can I use a pseudonym in the Impressum of a non-commercial website?
| 7 |
https://law.stackexchange.com/questions/88255/can-i-use-a-pseudonym-in-the-impressum-of-a-non-commercial-website
|
CC BY-SA 4.0
|
<p>I am creating an online forum where users can communicate and exchange ideas with no public content. This means that the website does not have any commercial activities, and it does not engage in any form of advertising, selling or promoting products or services.</p>
<p>I would like to know if it is allowed to use a pseudonym in the Impressum instead of my real name. I understand that the Impressum is a legal requirement for websites and it's used to ensure transparency and make it easy for customers to contact the website owner, but I would like to maintain a level of privacy.</p>
<p>In my country, the general usage of pseudonyms is allowed (<a href="https://de.wikipedia.org/wiki/Pseudonym#Deutschland" rel="noreferrer">even the use of a pseudonym in a signature is legally binding and permissible as long as the person in question can be identified without doubt.</a>) However, I am unsure if this applies to the Impressum of a website.</p>
<p>The website could be hosted outside of Germany (for example UK) if this changes the legal requirements. I'm planning to use AWS for hosting. The best case would be a solution where I just have to put my mail address in the Impressum.</p>
<p>I would appreciate any guidance or advice on this matter. Thank you in advance for your help.</p>
| 88,255 |
[
{
"answer_id": 88258,
"body": "<p>You won't be able to get around self-doxxing yourself.</p>\n<p>§ 5 Abs 1 TMG requires tele-media service providers like you to list</p>\n<blockquote>\n<p>den Namen und die Anschrift, unter der sie niedergelassen sind</p>\n</blockquote>\n<blockquote>\n<p>the name and the address where they reside or are established</p>\n</blockquote>\n<p>Similarly, Art 13(1) GDPR requires you to provide</p>\n<blockquote>\n<p>the identity and the contact details of the controller</p>\n</blockquote>\n<p>In a German context, it is generally accepted that both of these involve a <em>ladungsfähige Anschrift</em>, i.e. a street address where you could be served with a lawsuit (not a post box).</p>\n<p>These requirements exist for both natural persons and legal entities, and for both businesses and non-commercial activities. The TMG <em>Impressumspflicht</em> talks about “geschäftsmäßige, in der Regel gegen Entgelt angebotene Telemedien” but in practice this only requires that the service <em>could</em> be paid (not that you're actually making any money), and that the service is offered routinely/business-like (not necessarily commercially).</p>\n<p>It does not matter where your service is hosted as long as you live in Germany.</p>\n<p>The TMG and GDPR might not apply if the forum is run purely privately, e.g. if it is only made available to a few close friends or family members.</p>\n",
"score": 8
}
] |
[
"internet",
"germany"
] |
What discipline is the closest one to applied contract theory?
| 2 |
https://law.stackexchange.com/questions/88132/what-discipline-is-the-closest-one-to-applied-contract-theory
|
CC BY-SA 4.0
|
<p>Is there a discipline teaching how to design either a contract, in terms of logic and real-life feasibility, not just law.</p>
<p>A contract designed by lawyers is expected to be efficient if the parties involved have a conflict and their conflict reaches court. But what about contracts which are designed to prevent such course of action on the first place? That is, contracts, which put such conditions, that someone likely to violate them, would rather give up the whole deal, than accept the contract with a hidden intention to break its rules, later on? Is there a subject dedicated on that?</p>
<p>A contract or just even a short set of rules, does not need to be a legal one, in order to be effective. You could have an informal stipulation about the rules of relations between roommates, neighbours, co-workers, etc and if well designed, it could be no less robust than a legally bounding agreement.</p>
<p>As far as I was able to research, there's a discipline named "contract theory", but it belongs to the narrower field of economics and it seems not well suited for direct application in practice.</p>
| 88,132 |
[
{
"answer_id": 88257,
"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>In the United States, both among practicing lawyers, and in the academic field, disciplinary boundaries are very loose. Looking only for "contract theory" would miss much of what is going on.</p>\n<p>Lawyers who practice primarily in the area of pre-litigation contract law are called "transactional lawyers". Transactional lawyers have the same professional license as lawyers who engaged primarily in litigation, or lawyers who do both, but they choose to take on work of that type. Frequently transactional lawyers specialize even further. One lawyer might do primarily residential real estate closings. Another might handle mostly commercial real estate closings. A third might handle real estate development and construction law. A fourth might handle mergers and acquisitions. Another might handle mostly banking contracts. Another might mostly deal with insurance contracts. Another might handle mostly estate planning. A different lawyer might focus on condominiums and home owner's associations. Other lawyers focus mostly on oil and gas transactions.</p>\n<p>In general, practicing lawyers are much more likely to focus on a particular kind of contract than on contract design generally.</p>\n<p>This is also true in academia, although academics tend to examine issues at a somewhat greater level of generality than practicing lawyers.</p>\n<p>In academia, in law schools, there are lawyers who focus heavily on studying contract law. There is even a <a href=\"https://lawprofessors.typepad.com/contractsprof_blog/\" rel=\"nofollow noreferrer\">contract law professor's blog</a>. Many professors who study contract design at both the law school level and in undergraduate business schools identify instead as <a href=\"https://lawprofessors.typepad.com/business_law/\" rel=\"nofollow noreferrer\">business law professors</a>.</p>\n<p>Other professors who specialize in contract design focus on only particular kinds of contracts, such as <a href=\"https://lawprofessors.typepad.com/agriculturallaw/\" rel=\"nofollow noreferrer\">agricultural law and taxation</a>, <a href=\"https://lawprofessors.typepad.com/mergers/\" rel=\"nofollow noreferrer\">merger and acquisition contracts</a>, <a href=\"https://lawprofessors.typepad.com/securities/\" rel=\"nofollow noreferrer\">securities law</a>, <a href=\"http://www.refinblog.com/\" rel=\"nofollow noreferrer\">real estate financing</a>, <a href=\"https://lawprofessors.typepad.com/marijuana_law/\" rel=\"nofollow noreferrer\">marijuana business law</a>, <a href=\"https://lawprofessors.typepad.com/inttradelaw/\" rel=\"nofollow noreferrer\">international trade law</a>, and <a href=\"https://lawprofessors.typepad.com/intfinlaw/\" rel=\"nofollow noreferrer\">international finance law</a>. Contract design in all of these fields is also pervasively influenced by <a href=\"https://taxprof.typepad.com/\" rel=\"nofollow noreferrer\">tax law</a> - with undergraduate tax law in accounting programs tending to be more focused on compliance and law school tax law more focused on transaction design.</p>\n<p>Economists also study contract design. One of the main issues explored by economists is the question of under what circumstances it is better to structure economic activity within a single business raising issues such as the "theory of the firm" and agency problems, on one hand, or to structure economic transaction instead through contracts between multiple firms.</p>\n<p>Both legal scholarship and economic scholarship tend to be weak in what I call "descriptive economics" which is the study of what contracts and transaction structures are commonly used in real life to deal with particular kinds of situations.</p>\n<p>In short, the subjects about which you express interest are studied, but professionally, study of these subjects is highly fractured.</p>\n",
"score": 1
},
{
"answer_id": 88183,
"body": "<p>This is the work of a <a href=\"https://en.m.wikipedia.org/wiki/Solicitor\" rel=\"nofollow noreferrer\">solicitor</a>, especially one who specializes in contract negotiation, or in the subject area to which the contract relates (i.e. family law, employment law, etc.), but most general-practice solicitors would have the skills you discuss.</p>\n<p>Academic scholarship can be found under the terms "legal design" or "regulatory design."</p>\n",
"score": 0
}
] |
[
"contract-law"
] |
What are the differences between particulars, facts, and information?
| 1 |
https://law.stackexchange.com/questions/31664/what-are-the-differences-between-particulars-facts-and-information
|
CC BY-SA 4.0
|
<p>In <a href="https://drive.google.com/file/d/1EzYIlqOtjz3sz3aaQptYIEIGcmVUQXnF/view?usp=drivesdk" rel="nofollow noreferrer">this tax rule</a>, in some places <strong>information</strong> sharing is legalised/allowed where on the other places <strong>particulars</strong> sharing is legalised/allowed and elsewhere <strong>facts</strong> sharing is allowed though in some places all have been legalised/allowed.</p>
<p>What is the difference among these three terms?</p>
| 31,664 |
[
{
"answer_id": 31677,
"body": "<p>I'm not familiar with this law, but if it works like other tax confidentiality laws I'm familiar with, it would be interpreted so broadly that there would effectively be no difference between \"facts,\" \"particulars\" or \"information.\" </p>\n\n<p>People receiving tax returns under this law would be prohibited from disclosing any of them. Anything that is in the return would be considered secret.</p>\n",
"score": 3
}
] |
[
"legal-terms",
"bangladesh"
] |
What is the origin and basis of stare decisis?
| 7 |
https://law.stackexchange.com/questions/88240/what-is-the-origin-and-basis-of-stare-decisis
|
CC BY-SA 4.0
|
<p>When, where, how, and why did the doctrine that courts must have regard to the entirety of the infinitely ever growing corpus of judicial decisions that came before that sub judice and align their ruling to those that are comparable?</p>
<p>And why are prior judges’ powers of interpretations automatically seen to be more capable and robust than, so as to bind and prevail over, subsequent judges’ interpretative abilities?</p>
| 88,240 |
[
{
"answer_id": 88244,
"body": "<p>I assume you are asking about horizontal <em>stare decisis</em>: a court following its own previous holdings or those of courts of coordinate jurisdiction (e.g. courts at the same "level" in the judiciary). I say this because your incredulity does not seem to extend to the notion that appellate courts can bind lower courts.</p>\n<p>You ask:</p>\n<blockquote>\n<p>why are prior judges’ powers of interpretations automatically seen to be more capable and robust than, so as to bind and prevail over, subsequent judges’ interpretative abilities?</p>\n</blockquote>\n<p>This is not the rationale for horizontal <em>stare decisis</em>. The doctrine is not at all based on the premise that the first court or judge to answer got it correct. Justification was given in a concurring opinion in <em>R. v. Kirkpatrick</em>, <a href=\"https://www.canlii.org/en/ca/scc/doc/2022/2022scc33/2022scc33.html\" rel=\"noreferrer\">2022 SCC 33</a>:</p>\n<blockquote>\n<p>Stare decisis promotes: (1) legal certainty and stability, allowing people to plan and manage their affairs; (2) the rule of law, such that people are subject to similar rules; and (3) the legitimate and efficient exercise of judicial authority (citations omitted).</p>\n</blockquote>\n<p>And horizontal <em>stare decisis</em> is not absolute. Common-law jurisdictions have developed limited avenues for departure. For example, in Canada, a lower court can depart from previous decisions of courts of coordinate jurisdiction when (<em>R. v. Sullivan</em>, <a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19390/index.do\" rel=\"noreferrer\">2022 SCC 19</a>):</p>\n<blockquote>\n<ol>\n<li>The rationale of an earlier decision has been undermined by subsequent appellate decisions;</li>\n<li>The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or</li>\n<li>The earlier decision was not fully considered, e.g. taken in exigent circumstances.</li>\n</ol>\n</blockquote>\n<p>Even apex courts have developed a sense of internal obligation to follow their own precedents. But departure from previous decisions may be justified where (see the <em>Kirkpatrick</em> concurrence <a href=\"https://canlii.ca/t/jr3vx#par202\" rel=\"noreferrer\">at para. 202</a>):</p>\n<blockquote>\n<ol>\n<li><p>The Court rendering the decision failed to have regard to a binding authority or relevant statute (“<em>per incuriam</em>”);</p>\n</li>\n<li><p>The decision has proven unworkable (“unworkability”); or</p>\n</li>\n<li><p>The decision’s rationale has been eroded by significant societal or legal change (“foundational erosion”).</p>\n</li>\n</ol>\n</blockquote>\n<p>This has been viewed to "strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law" (<em>R. v. Sullivan</em>, <a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19390/index.do\" rel=\"noreferrer\">2022 SCC 19</a>). "Adherence to precedent furthers basic rule of law values such as consistency, certainty, fairness, predictability, and sound judicial administration."</p>\n",
"score": 24
},
{
"answer_id": 88243,
"body": "<p>The underlying idea has been implicit in law for over a millenium in England. The term dates back at least to Sir Matthew Hale who cites his doctrine of <em>stare decisis</em> in <a href=\"https://ota.bodleian.ox.ac.uk/repository/xmlui/bitstream/handle/20.500.12024/A64839/A64839.html?sequence=5&isAllowed=y\" rel=\"noreferrer\">Hanslap v. Cater</a> (1673). Blackstone in <em>Commentaries of the laws of England</em> <a href=\"https://www.gutenberg.org/files/30802/30802-h/30802-h.htm#Section_the_third\" rel=\"noreferrer\">Book 1 section 3</a> explains that the laws "receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom" – this is what stare decisis is "about". In the same era as Hale, Coke in <em>Institutes of the Lawes of England</em> explains that\n"our book cases are the best proofs what the Law is"\nand are cited as <em>authority</em> for what the law is.</p>\n<p>This may seem a bit strange in an era where "the law" is meticulously documented and instantly available on your phone, but the whole point of developing "the common law" since Henry II was to create a single legal system supplanting myriad local systems (Mercian, West Saxon and Danish Law), the content of which were not clearly established. As Blackstone explains,</p>\n<blockquote>\n<p>But here a very natural, and very material, question arises: how are\nthese customs or maxims to be known, and by whom is their validity to\nbe determined? The answer is, by the judges in the several courts of\njustice. They are the depositary of the laws; the living oracles, who\nmust decide in all cases of doubt, and who are bound by an oath to\ndecide according to the law of the land. Their knowlege of that law is\nderived from experience and study</p>\n</blockquote>\n<p>...</p>\n<blockquote>\n<p>these judicial decisions are the principal and most authoritative\nevidence, that can be given, of the existence of such a custom as\nshall form a part of the common law.</p>\n</blockquote>\n<p>Blackstone states that</p>\n<blockquote>\n<p>it is an established rule to abide by former precedents, where the\nsame points come again in litigation; as well to keep the scale of\njustice even and steady, and not liable to waver with every new\njudge's opinion; as also because the law in that case being solemnly\ndeclared and determined, what before was uncertain, and perhaps\nindifferent, is now become a permanent rule, which it is not in the\nbreast of any subsequent judge to alter or vary from, according to his\nprivate sentiments: he being sworn to determine, not according to his\nown private judgment, but according to the known laws and customs of\nthe land; not delegated to pronounce a new law, but to maintain and\nexpound the old one.</p>\n</blockquote>\n<p>It is assumed that judges competently perceive what the law is, and that the law is a non-contradictory whole. It would therefore be a contradiction to flout a prior decision, unless of course the earlier decision was clearly in error. Yet, Blackstone notes that</p>\n<blockquote>\n<p>this rule admits of exception, where the former determination is most\nevidently contrary to reason; much more if it be contrary to the\ndivine law. But even in such cases the subsequent judges do not\npretend to make a new law, but to vindicate the old one from\nmisrepresentation. For if it be found that the former decision is\nmanifestly absurd or unjust, it is declared, not that such a sentence\nwas <em>bad law</em>, but that it was <em>not law</em>; that is, that it is not the\nestablished custom of the realm, as has been erroneously determined.</p>\n</blockquote>\n<p>For an extended treatment of precedent and <em>stare decisis</em>, see Duxbury (2008) <em>The nature and authority of precedent.</em></p>\n",
"score": 18
}
] |
[
"england-and-wales",
"common-law",
"legal-history"
] |
Do anti discrimination provisions apply to online as well as brick and mortar retail vendors?
| 3 |
https://law.stackexchange.com/questions/88224/do-anti-discrimination-provisions-apply-to-online-as-well-as-brick-and-mortar-re
|
CC BY-SA 4.0
|
<p>Suppose a shop commits unlawful discrimination by selling products to only one race or only one sex, and a court rules that this constitutes direct unlawful discrimination. Now suppose that a website practises the same policy, with respect to the same product, only online, perhaps by requiring customers to tick a declaration that they belong to X or Y gender or race. Is there any reason why a court may rule differently with respect to the online vendor, simply because the discrimination is committed online? I can imagine that quantum may be less for damages, as one would suffer the discrimination in private without the aggravating factor of public humiliation likely in front of other members of the public. But apart from this, are there any otherlegal differences between discrimination committed online and in brick and mortar venues?</p>
| 88,224 |
[
{
"answer_id": 88254,
"body": "<p>Do anti discrimination provisions apply to online as well as brick and mortar retail vendors?</p>\n<p><strong>Yes</strong></p>\n<p>There is nothing in the <a href=\"https://www.legislation.gov.uk/ukpga/2010/15/contents\" rel=\"nofollow noreferrer\">Equality Act 2010</a> in general - nor in the definitions of <em>Prohibited Conduct</em> found within <a href=\"https://www.legislation.gov.uk/ukpga/2010/15/part/2/chapter/2?timeline=false\" rel=\"nofollow noreferrer\">Part 2, Chapter 2</a> in particular - that excludes, exempts or otherwise makes allowances for unlawful discrimination according to what business model is being used.</p>\n<p>This view is supported by <a href=\"https://www.citizensadvice.org.uk/consumer/discrimination-in-the-provision-of-goods-and-services/discrimination-in-the-provision-of-goods-and-services1/identifying-discrimination-in-the-provision-of-goods-and-services/discrimination-in-the-provision-of-goods-and-services-who-s-treating-you-unfairly/#:%7E:text=The%20Equality%20Act%20says%20you,by%20telephone%20or%20online\" rel=\"nofollow noreferrer\">Citizens Advice</a> who say that...</p>\n<blockquote>\n<p>The Equality Act says you mustn’t be discriminated against when you buy or receive goods, in many different places including:</p>\n<ul>\n<li><p>shops, supermarkets, market stalls or charity shops</p>\n</li>\n<li><p>at an auction</p>\n</li>\n<li><p>by telephone or <strong>online</strong></p>\n</li>\n<li><p>by catalogue or through doorstep sales.</p>\n</li>\n</ul>\n</blockquote>\n",
"score": 4
}
] |
[
"england-and-wales",
"discrimination",
"online",
"retail"
] |
Can people build a radio station/transmitter without amateur radio license in Canada?
| 2 |
https://law.stackexchange.com/questions/88245/can-people-build-a-radio-station-transmitter-without-amateur-radio-license-in-ca
|
CC BY-SA 4.0
|
<p>Consider only Canada law:</p>
<ol>
<li>Suppose someone <strong>has no</strong> amateur radio license, can he build a radio transmitter?</li>
<li>Suppose someone <strong>has</strong> amateur radio license, can he build a radio transmitter?</li>
<li>If people want to build a radio transmitter by their own, what to do/get first?</li>
</ol>
<p>I do not find a single piece of information about such case on Internet yet. However, I see some Youtube video(in USA) that builds a mini radio transmitter at home, also, those components could buy from some large/well-known website like DigiKey directly and it looks that it is fine to ship to Canada(not tried). In addition, even not buy components, for Electronic Engineer, they could build their own radio transmitter from ground up. I am not sure exactly what is the rules about these DIY case in Canada. From <a href="https://ised-isde.canada.ca/site/spectrum-management-telecommunications/en/consumer-information/low-power-licence-exempt-radiocommunication-devices-frequently-asked-questions#Q1" rel="nofollow noreferrer">Number 3</a>, these DIY radio transmitter does not in exempt list.</p>
| 88,245 |
[
{
"answer_id": 88250,
"body": "<h2>What is actually regulated?</h2>\n<p>The <a href=\"https://www.ic.gc.ca/eic/site/025.nsf/eng/h_00006.html\" rel=\"nofollow noreferrer\">Amateur Radio Operator License FAQ</a> for the <a href=\"https://ised-isde.canada.ca/site/spectrum-management-telecommunications/en/licences-and-certificates/regulations-reference-rbr/rbr-4-standards-operation-radio-stations-amateur-radio-service\" rel=\"nofollow noreferrer\">Amateur Radio Operator License</a> indicates that...</p>\n<blockquote>\n<p>the holder of an Amateur Radio Operator Certificate may install and operate transmitter equipment capable of producing an RF output of no more than twice (3dB) that authorized by their certificate..</p>\n</blockquote>\n<p>While the RBR-4 says:</p>\n<blockquote>\n<ol>\n<li>Scope</li>\n</ol>\n<p>This document sets out the standards for the operation of radio stations in the amateur radio service. Operators must comply with these provisions in accordance with section 45 of the Radiocommunication Regulations.</p>\n</blockquote>\n<p>So, the regulation is about <strong>installation and operation</strong>. It is not about the manufacture of the transmitter. However, someone can't <em>test</em> the transmitter without a license or license exemption, such as operating at very low power or in certain bandwidths.</p>\n<p>Depending on the transmitter design and setup, the manufacture of the transmitter might require an electrician certificate for some parts, especially if high voltage is used in parts. However, many designs manage to avoid such parts. There's a whole list of <a href=\"https://ised-isde.canada.ca/site/spectrum-management-telecommunications/en/official-publications/standards\" rel=\"nofollow noreferrer\">standards for radio equipment</a> that need to be complied with.</p>\n",
"score": 2
}
] |
[
"canada",
"radio",
"communications-law",
"amateur-radio"
] |
What is "look through" analysis?
| 2 |
https://law.stackexchange.com/questions/88137/what-is-look-through-analysis
|
CC BY-SA 4.0
|
<p>For a federal court to hear a case it must have both subject matter jurisdiction and personal jurisdiction.</p>
<p>Federal court retains subject matter jurisdiction via <strong>1</strong>) federal question jurisdiction or <strong>2</strong>) diversity jurisdiction.</p>
<p>Federal question jurisdiction arises from 28 USC 1331 which provides that federal courts have jurisdiction to decide a case based on federal law or the constitution.</p>
<p>According to <a href="https://law.stackexchange.com/a/87393/36096">this reply on SE</a>:</p>
<blockquote>
<p>A federal court can compel arbitration under Section 4 of the FAA, however, if, on a <strong>look through</strong> basis, the underlying dispute were to give rise to federal question jurisdiction, even in the absence of diversity of citizenship. Vaden v. Discovery Bank, 556 U.S. 49 (2009). In these cases, there is no minimum amount in controversy and diversity of citizenship is not required.</p>
</blockquote>
<p>What is the definition of <strong>look through</strong> analysis? Does the federal court need to delve deeply into the arguments and counterarguments of both sides in order to determine whether there is actual merit to any of the claims? Or as long as on the <em>surface</em> the dispute seems to be of federal nature it is sufficient to create federal jurisdiction?</p>
<p>In other words, is the look through analysis deep or shallow? Are there times when federal court might decline to exercise jurisdiction over a matter (to compel arbitration) because it believes that the case would have been dismissed summarily had the court been asked to rule on it? Or they have no right to delve into the merits of the arguments?</p>
| 88,137 |
[
{
"answer_id": 88249,
"body": "<p>In <em>Vaden v. Discover Bank</em>, <a href=\"https://supreme.justia.com/cases/federal/us/556/49/\" rel=\"nofollow noreferrer\">556 U.S. 49</a> (2009), the Supreme Court held:</p>\n<blockquote>\n<p>A federal court may “look through” a <a href=\"https://www.law.cornell.edu/uscode/text/9/4\" rel=\"nofollow noreferrer\">§4</a> petition to determine whether it is predicated on a controversy that “arises under” federal law; in keeping with the well-pleaded complaint rule as amplified in <em>Holmes Group</em> [<a href=\"https://supreme.justia.com/us/535/826/\" rel=\"nofollow noreferrer\">535 U.S. 826</a>], however, a federal court may not entertain a §4 petition based on the contents of a counterclaim when the whole controversy between the parties does not qualify for federal-court adjudication.</p>\n</blockquote>\n<p>Discover sued Vaden to recover a credit card debt in state court. Vaden filed a counter-claim challenging the charges under state usury laws. Discover filed a claim in federal court seeking to compel arbitration under <a href=\"https://www.law.cornell.edu/uscode/text/9/4\" rel=\"nofollow noreferrer\">9 U.S.C. §4</a>, which provides:</p>\n<blockquote>\n<p>A party aggrieved by the alleged failure … of another to arbitrate under a written agreement for arbitration may petition any United States district court which, <strong>save for such agreement, would have jurisdiction</strong> … of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed …</p>\n</blockquote>\n<p>"Look through" analysis gives effect to the bolded words. A dispute about arbitrability itself is not sufficient to attract federal jurisdiction. But the petition does not need to be based on an existing claim in federal court, either – the court can "look through" the petition for a claim that would attract federal jurisdiction.</p>\n<p>Although Discover's debt recovery claim was based solely on state law, Discover asserted that the court would have had <a href=\"https://en.wikipedia.org/wiki/Federal_question_jurisdiction\" rel=\"nofollow noreferrer\">federal question jurisdiction</a> because <a href=\"https://www.law.cornell.edu/uscode/text/12/1831d\" rel=\"nofollow noreferrer\">§27(a) of the Federal Deposit Insurance Act</a> preempted the state laws supporting Vaden's counterclaim.</p>\n<p>The Supreme Court agreed that the district court should "look through" the §4 petition and consider the possible existence of federal jurisdiction, but reversed the court of appeals' finding that Discover's claim "arose under" federal law for the purposes of <a href=\"https://www.law.cornell.edu/uscode/text/28/1331\" rel=\"nofollow noreferrer\">28 U.S.C. §1331</a>. The Supreme Court applied the "well-pleaded complaint rule" to Discover's §1331 claim, which required the court to focus on Discover's original (state law) claim, not its response to Vaden's counterclaim.</p>\n<p>To answer your question, "look through" analysis does not require the court to consider the "merits" of a federal claim before compelling arbitration. However, it is not sufficient that the dispute "seems to be of federal nature"; the court must conclude that (but for the arbitration agreement) it <strong>would have</strong> jurisdiction. The disagreement between the Supreme Court and the court of appeals in <em>Vaden,</em> which related to the scope of federal jurisdiction rather than the application of "look through" analysis, demonstrates that disputes about whether jurisdiction would have existed can become very complex.</p>\n<p>Thus, in general, a federal court should not decline to compel arbitration of a federal claim because "the case would have been dismissed summarily had the court been asked to rule on it." However, the court must dismiss the petition if the federal claim is so insubstantial that federal jurisdiction is not attracted at all. As the Supreme Court held in <em>Hagans v. Lavine</em>, <a href=\"https://supreme.justia.com/cases/federal/us/415/528/\" rel=\"nofollow noreferrer\">415 U.S. 528</a> (1974):</p>\n<blockquote>\n<p>Over the years, this Court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are "so attenuated and unsubstantial as to be absolutely devoid of merit," "wholly insubstantial," "obviously frivolous," "plainly unsubstantial," or "no longer open to discussion."</p>\n</blockquote>\n",
"score": 4
}
] |
[
"united-states",
"definition",
"new-jersey",
"federal-courts",
"arbitration"
] |
What is the legal basis for a Schengen country embassy to call the hotel to confirm the applicant's reservation?
| 3 |
https://law.stackexchange.com/questions/88228/what-is-the-legal-basis-for-a-schengen-country-embassy-to-call-the-hotel-to-conf
|
CC BY-SA 4.0
|
<p>When applying for a Schengen visa, an applicant is typically required to provide a proof of accommodation. Often it's a screenshot from a hotel aggregator, or an email from a hotel (if booked directly), or a letter from a friend warranting an accommodation. It may contain some numbers which may be validated on the aggregator's website. In other cases, a call to the hotel or the friend may be required to confirm that the reservation is not fake.</p>
<p>What is the legal basis (if any) that permits the embassy (frequently located outside of the EU) to request information about a person's reservation from a hotel, and receive a response?</p>
<p>I suspect there would be some data protection laws which make it illegal for the hotel to disclose information about their guests' reservations to random third parties, like a curious bystander. I also suspect that embassies are legally able to make any requests to verify the information provided in the visa application. Hence, some kind of permission or exemption is probably granted to the embassy processing the visa application.</p>
<p>This question is generic, about any Schengen country or EU-wide regulations. For example, <a href="https://www.bmeia.gv.at/en/austrian-embassy-london/travelling-to-austria/entry-requirements-visa-and-immigration/schengen-visa-application-requirements/" rel="nofollow noreferrer">the Austrian visa application in London</a> links to a <a href="https://www.bmeia.gv.at/fileadmin/user_upload/Vertretungen/London/Dokumente/Data_Protection_Regulations_-_Visa_Applicants.pdf" rel="nofollow noreferrer">GDPR statement(?)</a> and <a href="https://www.bmeia.gv.at/fileadmin/user_upload/Vertretungen/London/Dokumente/Visa_C_Application_form.pdf" rel="nofollow noreferrer">the application form</a>. Both cover what happens with the information provided by the applicant (stored here, accessed by these parties and officials), but I don't see how any of them legally allow the hotel to disclose information to the embassy.</p>
| 88,228 |
[
{
"answer_id": 88247,
"body": "<p><a href=\"https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02016R0679-20160504&qid=1673847368835&from=en\" rel=\"nofollow noreferrer\">GDPR</a> article 6(1) makes it legal if</p>\n<blockquote>\n<p>(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;</p>\n</blockquote>\n<p>An embassy is exercising official authority, and the fact that it is located outside the EU does not really matter; it is an agency of a member state. It <em>could</em> be more problematic if the embassy or consulate contracts a visa processing service, but there the details of the data processing agreements would matter. (I haven't taken the time to look if they are public.)</p>\n",
"score": 2
}
] |
[
"european-union",
"data-protection",
"visa",
"schengen"
] |
Selling software internationally and taxes
| 1 |
https://law.stackexchange.com/questions/70880/selling-software-internationally-and-taxes
|
CC BY-SA 4.0
|
<p>I'm about to go crazy due to the amount of information I have explored on this matter and still I have no answers. Anyone with at least some knowledge, please share it.</p>
<p>My case is very simple (I think), I create a small software application and want to sell licenses for it from my own web-site, taking payments using PayPal. I'm registered in Canada. If I was to sell it in Canada only I would have to collect and pay GST/HST taxes. But I have no clue where my clients will be from.</p>
<p>According to the information I was able to find, every zone, country, or even states, have their own taxation rules for sales made there. Well, in no way it's possible that small companies or individuals that sell products internationally deal with tax rules for each buyer, that would be a non-sense, and paying such taxes worldwide would be a nightmare not worth having a small business at all. So it must not be the case. But PayPal's page on international sales suggests exactly that it's the case.</p>
<p>The main question, if someone buys a license from my web-site, is it considered a sale in the buyer's country/state which requires me to collect and pay some remote tax, or it's a purchase in my country/state which requires me to collect HST from that buyer?</p>
<p>Another question is regarding invoices, I know that Canada requires certain information to be included into an invoice for sales in Canada. If my sales will be considered sales in a buyer's Country with some other rules, does it mean I have to manage tons of invoice templates?</p>
<p>I also known that usually countries specify certain limits before their taxes has to be collected, which makes it even more confusing. Let's say if my sales in UE exceed 30K EUR it looks like I need to register and pay VAT there. But what if I have less? I want to show tax amount in the invoice, but it such case it looks like there will be no tax collected at all.</p>
| 70,880 |
[
{
"answer_id": 70890,
"body": "<blockquote>\n<p>According to the information I was able to find, every zone, country, or even states, have their own taxation rules for sales made there.</p>\n</blockquote>\n<p>Correct.</p>\n<blockquote>\n<p>Well, in no way it's possible that small companies or individuals that sell products internationally deal with tax rules for each buyer, that would be a non-sense, and paying such taxes worldwide would be a nightmare not worth having a small business at all.</p>\n</blockquote>\n<p>You are required to comply with the law. If it is complicated, or difficult or expensive to do so then, it's complicated, difficult and expensive and you still have to do it.</p>\n<p>The answer is obvious: if it's not worth having a small business, don't have a small business.</p>\n<blockquote>\n<p>The main question, if someone buys a license from my web-site, is it considered a sale in the buyer's country/state which requires me to collect and pay some remote tax, or it's a purchase in my country/state which requires me to collect HST from that buyer?</p>\n</blockquote>\n<p>It depends on the law in both Canada and the destination country. In most cases, the sale will be an export sale from Canada (GST/HST exempt) and an import sale in the destination country - requiring you to comply with GST/HST obligations there.</p>\n<blockquote>\n<p>Another question is regarding invoices, I know that Canada requires certain information to be included into an invoice for sales in Canada. If my sales will be considered sales in a buyer's Country with some other rules, does it mean I have to manage tons of invoice templates?</p>\n</blockquote>\n<p>Yes.</p>\n<blockquote>\n<p>Let's say if my sales in UE exceed 30K EUR it looks like I need to register and pay VAT there. But what if I have less?</p>\n</blockquote>\n<p>Then you don't need to register and remit tax. Nor are you allowed to collect it from your customers. By the way, I have no idea what country in the Eurozone goes by the initials UE.</p>\n<p>In most jurisdictions, you need to register either when you reach the threshold in fact or reasonably expect to reach the threshold. Also in most, you can usually register even if you are below the threshold. For example, these are the rules for <a href=\"https://business.gov.au/finance/taxation/international-tax\" rel=\"nofollow noreferrer\">Australia</a>.</p>\n<blockquote>\n<p>Anyone, please advice.</p>\n</blockquote>\n<p>Hire an accountant versed in international digital services. They will be able to give you the advice you need. They will also be able to recommend sales/payment platforms that can handle most of this for you (for a fee, of course).</p>\n",
"score": 3
},
{
"answer_id": 88241,
"body": "<p>Not sure if this is considered an answer to your question, but using a digital commerce solution (e.g. paddle.com / fastspring.com etc) allows you to sell software internationally while only dealing with tax regulations of the digital commerce solution's country since they are technically the Merchant of record, so they are the ones that are technically selling to customers in many countries and not you.</p>\n",
"score": 1
}
] |
[
"software",
"international",
"tax-law"
] |
How to make sure your startup or project idea is not stolen or given away when sharing it with professors or sources of support
| -2 |
https://law.stackexchange.com/questions/88226/how-to-make-sure-your-startup-or-project-idea-is-not-stolen-or-given-away-when-s
|
CC BY-SA 4.0
|
<p>Say you have an idea for which you can appreciate some intellectual and financial support. For this you may reach out to different sources, such as university professors or research institutes that also have experience in building start-ups.</p>
<p>For example, it can start with an email, in which the idea is not fully presented, but later you would be asked about it and may be completely open about what your idea is. However, how can we protect or make sure that the other person wont share that idea with someone else or steal it?</p>
<p>Certainly, in the beginning there is no patent that clarifies the ownership of that idea to be yours and patents are expensive as well to file individually. Or are there other ways to already associate the idea with your name and be sure it cannot be easily stolen?</p>
<p>----edit: The question also considers scenarios where signing an NDA is not really realistic. For example for students reaching out to professors or other institutes and having barely any idea how others may take advantage of their ideas.</p>
| 88,226 |
[
{
"answer_id": 88236,
"body": "<p>I'm in <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"germany-container\">germany</a>, like OP.</p>\n<ul>\n<li><p>I can say from experience that also in public research, NDAs are very common, so professors are quite used to signing them. E.g., we've had NDAs (on top of everything specified in the cooperation contracts) before project meetings where a partner presented something that might be relevant for a patent later on.</p>\n</li>\n<li><p>Services like start-up or inventor consultations (<em>Gründerberatung</em>, <em>Erfindersprechstunde</em>) offered by universities or chambers of commerce typically already state on their own (e.g. on the web site) that they treat everything in the consultation as confidential. For them, that's nothing more nor less than being professional.<br />\nAlso, their business is to offer consulting, they are not interested in starting business themselves. They are paid for and their success is measured by how many <em>others</em> they help to start a business.</p>\n</li>\n<li><p>When approaching a professor, you can say you want to consult with them, and need them to treat the discussion as confidential.<br />\nIf you do not trust them to keep things confidential as they promised, then don't approach that professor: that's a sign that they are not the right business partner/consultant for you. It doesn't even matter whether your assessment of them is correct or paranoid - without that level of trust, you'd have to waste much time and effort on making things legally watertight which could otherwise go into your business. That would be economically stifling.</p>\n<p>Sure, there may exist professors who'd want to take over the idea. However, normally someone becomes a professor in order to be a professor. And for a professor, having a student successfully start a spin-off does substantially count towards their success in evaluations.</p>\n</li>\n</ul>\n",
"score": 2
}
] |
[
"intellectual-property",
"patents",
"data-protection",
"trade-secret"
] |
Is it required for a defendant to be in court?
| 7 |
https://law.stackexchange.com/questions/88212/is-it-required-for-a-defendant-to-be-in-court
|
CC BY-SA 4.0
|
<p>Say that Nathan is on trial for 100 murder charges. He already knows his life is over, so every time they bring him into court, he starts screaming expletives out of turn. They charge him 1000 times over for contempt of court. But even if they gag him, he can still flop around like a fish out of water whenever they bring him into court. Basically, no matter what they do short of torture/violence, Nathan will find some way to be a nuisance in court.</p>
<p>Is it at all possible to conduct his trial/sentencing without him present whatsoever? Or is it required that he be present in court at some point, and they just have to carry on through his antics?</p>
| 88,212 |
[
{
"answer_id": 88225,
"body": "<h2>They have a right to be <em>present</em> but can be removed under <a href=\"https://supreme.justia.com/cases/federal/us/397/337\" rel=\"nofollow noreferrer\">Illinois v. Allen</a></h2>\n<p>While in general, a person has a <em>right</em> to be present for the trial and conviction hearing, <strong>they can be removed if they disturb the orderly process.</strong> SCOTUS also offers to have him fined again and again (only works if the accused is not judgment proof) or to gag and bind an unruly defendant.</p>\n<h2>Illinois v. Allen, 397 U.S. 337 (1970)</h2>\n<blockquote>\n<p>Syllabus</p>\n<p>Respondent, who was on trial for robbery, was removed from the courtroom for repeated disruptive behavior and the use of vile and abusive language directed at the trial judge, notwithstanding the judge's prior warning that removal would follow another outburst. Appointed counsel represented respondent during the period respondent was not allowed in the courtroom, principally the presentation of the State's case. Having given some assurances of good conduct, respondent was allowed to return to the courtroom while appointed counsel presented his defense. Respondent was convicted. Following the State Supreme Court's affirmance, respondent filed a petition for a writ of habeas corpus in federal court, contending that he had been deprived of his right under the Sixth and Fourteenth Amendments to confront the witnesses against him. The District Court declined to issue the writ. The Court of Appeals reversed, holding that a defendant's Sixth Amendment right to attend his own trial was so "absolute" that, regardless of how unruly his conduct, he could never be held to have lost that right so long as he insisted on it, as respondent had.</p>\n<p>Held:</p>\n<ol>\n<li><p><strong>A defendant can lose his right to be present at trial if, following the judge's warning that he will be removed if his disruptive behavior continues, he nevertheless insists on conducting himself in such a disruptive manner that his trial cannot proceed if he remains in the courtroom. He can reclaim the right to be present as soon as he is willing to comport himself with decorum and respect.</strong> Pp. 397 U. S. 342-343.</p>\n</li>\n<li><p>A trial judge confronted by a defendant's disruptive conduct can exercise discretion to meet the circumstances of the case, and though no single formula is best for all situations, there are at least three constitutionally permissible approaches for the court's handling of an obstreperous defendant: (1) bind and gag him as a last resort, thereby keeping him present; (2) cite him for criminal or civil contempt; or (3) remove him from the courtroom, while the trial continues, until he promises to conduct himself properly. Pp. 397 U. S. 343-346.</p>\n</li>\n<li><p>On the facts of this case, the trial judge did not abuse his discretion, respondent, through his disruptive behavior, having lost his right to confrontation under the Sixth and Fourteenth Amendments. Pp. 397 U. S. 345-347.</p>\n</li>\n</ol>\n</blockquote>\n<h3>Example of removal in action: The Darrell Brooks case</h3>\n<p>As a rather public example, this happened during the Darrell Brooks trial, <strong>multiple</strong> times: there's abouht <a href=\"https://www.youtube.com/watch?v=95YCIqpTa4A\" rel=\"nofollow noreferrer\">9:12 hours</a> and <a href=\"https://www.youtube.com/watch?v=FREuW765_O4\" rel=\"nofollow noreferrer\">6:15 hours</a> of sentencing hearing in this case, including breaks, split between two days. On the 2nd day, the judge starts the actual sentencing by elaborating on how she understands the case at about <a href=\"https://youtu.be/FREuW765_O4?t=11505\" rel=\"nofollow noreferrer\">3:11:45</a>. If you look up the transcript, keep in mind that the local time at the start of the video was about 12:50, ten minutes to 1 PM.</p>\n<p>At <a href=\"https://youtu.be/FREuW765_O4?t=13460\" rel=\"nofollow noreferrer\">3:44:20</a>, <strong>Mr. Brooks starts to speak up and interrupt the judge</strong>, <strong>receiving</strong> in quick succession multiple <strong>warnings that he will be removed</strong> if he doesn't stop. After 40 seconds, <strong>the order to remove him from the courtroom is given</strong>.</p>\n<p>The hearing resumes at around the <a href=\"https://youtu.be/FREuW765_O4?t=13790\" rel=\"nofollow noreferrer\">3:49:50</a> mark, Mr. Brooks now in a separate courtroom. The judge elaborates that Mr. Brooks has a <em>right</em> to be present, and also why he can be removed under <em>Illinois v. Allen</em>. There is more elaboration on this topic till Mr. Brooks is muted at about the timestamp 3:53:00, because he is unwilling to do the required pledge to reclaim the right to be present under that case. More explanation about it follows that the judge wants the pledge in writing at that point.</p>\n<p>The reading of sentencing factors only resumes at around the 3:55:00 mark. Mr. Brooks writes <em>something</em> at about 3:57:00, and the paper is given to the judge at <a href=\"https://youtu.be/FREuW765_O4?t=14359\" rel=\"nofollow noreferrer\">3:59:19</a>, ruling that whatever is on the sheet is not a pledge and thus he stays removed at 3:59:25.</p>\n<p>For some hour Mr. Brooks waves papers at the camera, writing another note to the Judge at starting about 4:41:00, before resuming waving with the new note at about <a href=\"https://youtu.be/FREuW765_O4?t=17600\" rel=\"nofollow noreferrer\">4:43:20</a> and showing his statement to the camera at <a href=\"https://youtu.be/FREuW765_O4\" rel=\"nofollow noreferrer\">4:55:52</a>. Sadly the quality is not good enough to read the letters, and not even the judge can read it at <a href=\"https://youtu.be/FREuW765_O4?t=17820\" rel=\"nofollow noreferrer\">5:57:00</a> - re-iterating that unless it is a pledge to stay quiet, he's not coming back. The prosecution manages to make out the top word as Objection at <a href=\"https://youtu.be/FREuW765_O4?t=17840\" rel=\"nofollow noreferrer\">4:57:20</a> and shortly after it is ordered that he may return with the sign, but <strong>if he so much as speaks up, he will forfeit his right to be present</strong>.</p>\n<p>Court resumes at about <a href=\"https://youtu.be/FREuW765_O4?t=18200\" rel=\"nofollow noreferrer\">5:03:20</a>, corresponding to 4:53 in the courtroom. Mr. Brooks is instructed that he can only stay in the courtroom if he is to waive his right "to do so", and that if he doesn't behave he'd be removed again and told to sit down. Instead, Mr. Brooks starts rambling about subject matter jurisdiction at 3:04:00. Told once more to sit down, this transpires:</p>\n<blockquote>\n<p>Mr. Brooks: "I'd like to go back to the other court room."</p>\n<p>Judge: "It's not a courtesy to you. If you like to specifically waive your right to be physically present, then I will entertain that. Otherwise, you need to sit down."</p>\n<p>Mr. Brooks: [something unintelligible] "I never waived a right to not be present" [more unintelligible]</p>\n<p>Judge: "That's because you forfeited your right to be present by conduct. You're now back in this courtroom.</p>\n<p>Mr. Brooks: "Your honor I wrote three... I did what you asked me to do..."</p>\n<p>Judge: "You never once pledged to me sir, that you would not interrupt, and you're demonstrating by being here that you will continue to interrupt.</p>\n<p>Mr. Brooks [something to the effect that the judge told the bailiff that the pledge had to be in writing]</p>\n<p>Judge: "Mr. Brooks, this is not a debate. You asked to come over here and I honored that, and I brought you back.</p>\n<p>Mr Brooks [Interrupts, the words <em>My Right</em> are understandable.] "three times. I shouldn't have to do it three times!"</p>\n<p>Judge: "None of the opportunities you wrote to me said *I pledge to not interrupt."</p>\n<p>Mr. Brooks [Interrupts] "I never had to do that before! You've never required that before!"</p>\n<p>Judge: That is actually not true sir.</p>\n<p>Mr Brooks [argues that he'd never been required to pledge like that before in trial]</p>\n<p>Judge: Mr Brooks, You were just simply trying to delay the inevitable, please sit down.</p>\n</blockquote>\n<p>Mr. Brooks continues to argue and stand up, despite now being told to sit down and be quiet for the 3rd time since returning to the courtroom. A 4th order to "please sit down" is issued at about 5:05:35 and two more within about 20 seconds later. Mr. Brooks rants and complains about being removed in the first place and that he'd want to exercise his right to be present. The Judge finally re-iterates at <a href=\"https://youtu.be/FREuW765_O4?t=18400\" rel=\"nofollow noreferrer\">5:03:40</a> that the reason he was brought back was <strong>not</strong> because he had complied with the request to pledge not to interrupt, but because the next portion is very important. Mr Brooks doesn't sit down and argue. At 5:08:00 the judge clarifies that he "did not reclaim his right to be present" (which was forfeited back at timestamp <a href=\"https://youtu.be/FREuW765_O4?t=13460\" rel=\"nofollow noreferrer\">3:44:20</a>!). A minute later, the judge orders him directly - with a warning that this is a direct court order and not doing what is told is contempt of court:</p>\n<blockquote>\n<p>Judge: Sit down and be quiet, so I can make the appropriate record.</p>\n<p>Mr Brooks [dispnbeys]</p>\n<p><strong>Judge: All right, he's not going to obey, he has now forfeited his right to be present</strong> He will go into the other court room. We are in recess until he's there.</p>\n<p><a href=\"https://youtu.be/FREuW765_O4\" rel=\"nofollow noreferrer\">5:09:25 -The camera pans to the clock showing 4:59:20</a></p>\n</blockquote>\n<p>Around timestamp <a href=\"https://youtu.be/FREuW765_O4?t=18806\" rel=\"nofollow noreferrer\">5:13:20</a> trial resumes, and the judge <em>once more</em> reiterates that and how the court deems Mr. Brooks having forfeited the right to be present for about two minutes. His sign that he objects to the other room and wants to return is ignored, even as he parades it around. Sentencing continues without him. The sentences are read starting timestamp <a href=\"https://youtu.be/FREuW765_O4?t=21320\" rel=\"nofollow noreferrer\">5:55:20</a> - no further interruption happens.</p>\n",
"score": 5
},
{
"answer_id": 88239,
"body": "<p>Nobody can force you to appear in court. It’s usually smart to appear, but you don’t have to be smart.</p>\n<p>In a criminal court, if you have something to say that helps your case, you can’t say it if you are not there. If there is nothing else, you can express remorse which might reduce your sentence. But only if you are there.</p>\n<p>In a civil case the plaintiff will often claim that you did X, that you were not allowed to do X, that this caused the plaintiff damages, and that the judge should order you to do Y to fix it. If you didn’t do X, but you are not in court to tell the judge, then he or she will assume you did it. If you are in court, you can say “I didn’t do it, prove it” or “I’m not aware of doing it, prove it”. Not being present means you might easily lose a cause that you should have won.</p>\n",
"score": 0
}
] |
[
"united-states",
"criminal-law",
"court",
"trial",
"contempt-of-court"
] |
What laws have amended the Equality Act 2010?
| 0 |
https://law.stackexchange.com/questions/88237/what-laws-have-amended-the-equality-act-2010
|
CC BY-SA 4.0
|
<p>I find myself wishing to download a copy of the Equality Act 2010 in order to study it when lacking internet access. Of course legislation.gov.Uk offers a PDF kings printer version, but I fear this is out of date.</p>
<p>Meanwhile I also fear that it will somewhat not be as navigable: can you click links in the contents too focused views of each section as in the HTML?</p>
<p>Is there any way to download an up to date and ideally navigable version of the Equality Act 2010?</p>
| 88,237 |
[
{
"answer_id": 88238,
"body": "<p><a href=\"https://www.legislation.gov.uk/changes/affected/ukpga/2010/15\" rel=\"nofollow noreferrer\">This is the list of changes made to the <em>Equality Act 2010</em> since its enactment</a>. You can also view the entire Act, as amended to date <a href=\"https://www.legislation.gov.uk/ukpga/2010/15\" rel=\"nofollow noreferrer\">here</a>. After each section, it lists the revisions since inception. Not all sections are fully in force, but this can be read in the commencement information following sections that were not fully in force from the time of Royal Assent. For example, s. 36 is only partly in force as of today.</p>\n<p>"The revised legislation on legislation.gov.uk is the official revised version of the statute book for the UK in electronic form" (The National Archives, "<a href=\"https://www.legislation.gov.uk/pdfs/GuideToRevisedLegislation_Oct_2013.pdf\" rel=\"nofollow noreferrer\">Guide to Revised Legislation on legislation.gov.uk</a>", October 2013).</p>\n",
"score": 2
}
] |
[
"united-kingdom",
"england-and-wales",
"legal-research",
"research",
"equality-act-2010"
] |
Bellowing helicopters in the sky: insight and recourse
| 10 |
https://law.stackexchange.com/questions/88223/bellowing-helicopters-in-the-sky-insight-and-recourse
|
CC BY-SA 4.0
|
<p>Exceedingly loud helicopters seem to regularly fly in the sky where I live in the London Borough of Islington, both in the day and night, and often on Sundays, when noise is supposed to even be legally restricted in the day. What methods are available for one to find out who these helicopters belong to, and what they’re doing? Further, what recourse do disturbed local residents have to complain or prevent these helicopters from so severely disturbing them?</p>
| 88,223 |
[
{
"answer_id": 88227,
"body": "<p>The U.K. Civil Aviation Authority provides information about <a href=\"https://www.caa.co.uk/our-work/make-a-report-or-complaint/use-of-uk-airspace/\" rel=\"noreferrer\">making noise complaints to the relevant airport</a>. It also notes that your local planning authority can provide more information about operating hours and noise restrictions. You could also ask at <a href=\"https://aviation.stackexchange.com\">Aviation Stack Exchange</a> for more information about identifying the aircraft and owner.</p>\n<p>This is also a political issue that Parliament attends to from time to time, so you can talk to your MP about it:</p>\n<ul>\n<li><a href=\"https://commonslibrary.parliament.uk/research-briefings/sn00261/\" rel=\"noreferrer\">Research Briefing: Aviation Noise (2017)</a></li>\n<li><a href=\"https://www.gov.uk/government/organisations/independent-commission-on-civil-aviation-noise\" rel=\"noreferrer\">Independent Commission on Civil Aviation Noise (2021)</a></li>\n</ul>\n<p>At common-law, there might have been causes of action available in trespass, nuisance, or public nuisance, but the <em>Civil Aviation Act 1982</em> says that "<a href=\"https://www.legislation.gov.uk/ukpga/1982/16/part/III/crossheading/trespass-by-aircraft-and-aircraft-nuisance-noise-etc\" rel=\"noreferrer\">[n]o action shall lie in respect of trespass or in respect of nuisance</a>" as long as aviation regulations and orders are complied with.</p>\n",
"score": 15
}
] |
[
"england-and-wales",
"environmental",
"local-authorities",
"noise",
"nuisance"
] |
Do I need a privacy policy when selling on a shopping platform commercially?
| 2 |
https://law.stackexchange.com/questions/88220/do-i-need-a-privacy-policy-when-selling-on-a-shopping-platform-commercially
|
CC BY-SA 4.0
|
<p>I am selling 5 articles per month commercially (not privately) on the internet.</p>
<p>I am doing this on <a href="https://ebay-kleinanzeigen.de" rel="nofollow noreferrer">eBay Kleinanzeigen</a> in Germany. The English translation is eBay small advertisements. It's like Vinted, Shpock or Etsy.</p>
<p>I already have a text for <a href="https://en.wikipedia.org/wiki/Standard_form_contract" rel="nofollow noreferrer">terms and conditions</a>. I wonder if I also need a privacy policy which tells the buyer how long I will save his address (for example)?</p>
<p>I also have the PayPal address or the IBAN of the buyer. Do I need a privacy policy which tells the buyer how long I will store this information?</p>
| 88,220 |
[
{
"answer_id": 88222,
"body": "<p>If you process any personal data, you do need to provide notice to the data subjects per Art 13 or Art 14 GDPR. Personal data is any information relating to a (directly or indirectly) identifiable natural person.</p>\n<p>It seems you are processing personal data including as addresses, PayPal accounts, and IBANs. Thus you're in scope of the GDPR. The GDPR does have an exception when data is processed for “purely personal or household purposes”, but that very likely does not apply to you.</p>\n<p>The German Datenschutzkonferenz (DSK), a cooperation of the German supervisory authorities, has published a handout on information obligations, listing which information has to be provided in a privacy notice: <a href=\"https://datenschutzkonferenz-online.de/media/kp/dsk_kpnr_10.pdf\" rel=\"nofollow noreferrer\">https://datenschutzkonferenz-online.de/media/kp/dsk_kpnr_10.pdf</a></p>\n<p>Such a privacy notice can be fairly short if you're don't doing anything special, in particular if you only use the data as necessary to fulfil the sale contract and then as legally required (e.g. for keeping financial records). There are privacy notice generators that can help with the boilerplate, but be aware that some are significantly outdated, and that in any case you have to fill in the information about your concrete processing activities. You have guessed correctly that you will need to inform your customers about your data retention periods.</p>\n<p>Your privacy notice will get more complicated if you also want to use this data in other ways, for example for marketing purposes. That would also require you to think about appropriate legal bases (e.g. legitimate interests, or consent).</p>\n",
"score": 4
}
] |
[
"privacy"
] |
Can I trademark a 10-year-old-dead-trademark?
| 1 |
https://law.stackexchange.com/questions/48963/can-i-trademark-a-10-year-old-dead-trademark
|
CC BY-SA 4.0
|
<p>According to US law, if trademark 'ABC' has expired under 'Section 8/9' more than 10 years ago (2010), and has not seen any activity so far, can I trademark it?</p>
| 48,963 |
[
{
"answer_id": 49086,
"body": "<p>After some research, you can <strong>IF</strong>:</p>\n\n<ol>\n<li><p>The trademark is <strong>NOT</strong> used in trade, per example, if Apple failed to renew the trademark but is activelly using on products, they can always renew filling a new application.</p>\n\n<p><a href=\"https://www.trademarknow.com/blog/4-considerations-before-purchasing-a-dead-trademark\" rel=\"nofollow noreferrer\">As said on Trademark Now</a>:</p>\n\n<blockquote>\n <p>The risk comes from the Lanham Act.</p>\n \n <p>Through this act, a mark is not abandoned until it’s been discontinued\n without intent to resume use. While the USPTO will not track the mark\n in their registry as active because the paperwork has not been filed,\n this doesn’t mean that the mark isn’t still being used by a business\n who has an acceptable reason for not maintaining it in the registry.</p>\n \n <p>If you can prove in court that the original owner had no intent to\n continue its use, then have at it. Understand, however, that the\n subjectivity of the process will give you problems if the previous\n owner pushes back.</p>\n</blockquote></li>\n</ol>\n\n<p><br>\n2. The expired trademark is <strong>NOT</strong> in the 6-month grace period after expiration in wich, the original owner can renew.</p>\n\n<p>I learned also that you could always ask(And is the best course of action), i spoke with some companies who had expired trademarks and they usually are willing grant the trademark, since the product/brand has been long dead.</p>\n",
"score": 4
}
] |
[
"united-states",
"trademark"
] |
Does anti-discrimination law apply to software licenses?
| 5 |
https://law.stackexchange.com/questions/87966/does-anti-discrimination-law-apply-to-software-licenses
|
CC BY-SA 4.0
|
<p>Related: <a href="https://law.stackexchange.com/q/78519/10458">Can a software license validly restrict place of use, or impose restrictions on the type or purpose of use</a></p>
<p>As per the above thread, it seems like it is perfectly legal in the USA to attach arbitrary conditions of use to software licenses.</p>
<p>I do know that <a href="https://www.justice.gov/crt/title-ii-civil-rights-act-public-accommodations" rel="nofollow noreferrer">Title II of the Civil Rights Act of 1964</a> generally bans discrimination with respect to "public accommodations" which may be privately-owned services such as hotels or restaurants, but I'm not finding anything that specifies whether discriminating against someone with respect to licensing software violates the Civil Rights Act or any other US federal law such as the Americans with Disabilities Act of 1990.</p>
<p>Is it lawful for the owner of the copyright of a software product to attach discriminatory usage conditions on it in such a way that such conditions would violate US federal law if the discrimination was instead done with respect to a public accommodation? If it is unlawful, is the offending (discriminatory) license clause invalidated (i.e. it is not part of the license), or does the clause remain valid but subject the licensor to liability for a discrimination lawsuit?</p>
<p>For example, any of the following hypothetical license clauses could be considered discriminatory under my definition above:</p>
<ul>
<li>Persons with epilepsy must purchase an additional $50 Epilepsy License Rider in order to use this software. Purchasing this rider does not grant you access to epilepsy-related services, but only allows you to use this software despite having a medical diagnosis that would otherwise disqualify you from holding a license. If you hold a valid license to use this software and receive a new diagnosis of epilepsy, you shall have 30 days to purchase a Rider before your license to use the software terminates as a result of your disability. (disability discrimination)</li>
<li>Notwithstanding any other part of this license or any other correspondence or arrangement with Licensor, members of the Church of Scientology are forbidden from using this software. (religious discrimination)</li>
<li>This software is for white people only. It shall be a violation of the terms of this license for any black, Asian, or otherwise nonwhite person to use the software. (racial discrimination)</li>
<li>By clicking the "agree" button below, you represent and warrant that you are a woman as defined under the family law code of Texas. False certification shall be a violation of the license and shall terminate your right to use the software. For the avoidance of doubt, men may not use this software. (gender discrimination)</li>
</ul>
<p>Are software license clauses such as the ones above lawful under US federal copyright and anti-discrimination law?</p>
<p>In other words, if I write some software in the USA, do I have the freedom to decide to permit only people in certain racial, religious, etc. groups to use it or to require persons in certain groups (e.g. black people) to pay more for the same license, or do I have to obey anti-discrimination laws in who I license to and under what terms?</p>
<p>Discussion:</p>
<p>Questions about <em>why</em> someone would want to discriminate in this way are out of scope for this question. Similarly, why someone would want to use software whose owner wants to forbid them from using it for discriminatory reasons is also out of scope.</p>
<p>I am aware that some software might represent niche areas of interest that would appeal primarily to members of certain protected groups. For example, an app for Talmud study would probably appeal primarily to Jewish users and not, for example, to Muslims, Buddhists, or Scientologists. My question could be whether I could lawfully publish a Talmud study app that only Jews are licensed to use or whether doing this would either invalidate the restrictive license clause (allowing non-Jewish people to license the app for the same price or under the same conditions as anyone else) or subject me to liability for discrimination.</p>
<p>In response to Neil Meyer, I am not asking whether there is a distinction in law between lawful discrimination like choosing who to date or whose products to buy for personal use and unlawful discrimination like deciding not to hire people from a certain racial group for my business. I know that such a distinction is made and that it is not illegal for me to refuse a date on racial grounds or decide to quit my job because I discovered that the company was affiliated with a religion I disapprove of. I am not asking about what discrimination means, I am asking if what is commonly considered unlawful discrimination in public accommodation, employment, etc. is legal <em>if it relates only to software licenses</em>. For example, if I publish a "Standard Edition" of my software for $50 and then a "Special Low-Cost Edition for White People Only" at $20 with an EULA that specifies that the license is void if purchased by a non-white person, is that legal as long as I disclose what I am doing (e.g. on the box or on my website)?</p>
<p>In response to a comment by gnasher729, this question has nothing to do with Scientology per se. I am simply using it as an example of a religion. In the USA, Scientology is considered a bona-fide religion under law and it is unlawful to discriminate against Scientologists in the same way that it is unlawful to discriminate against Russian Orthodox believers, Wiccans, or members of the Holy Family Temple of Pentecostal Righteousness under God Sabaoth.</p>
| 87,966 |
[
{
"answer_id": 87972,
"body": "<p>It is generally held (see <a href=\"https://nonprofitlawblog.com/anti-discrimination-laws-section-1981/\" rel=\"noreferrer\">this article</a>) that contracts are subject to <a href=\"https://www.law.cornell.edu/uscode/text/42/1981\" rel=\"noreferrer\">42 USC 1981</a></p>\n<blockquote>\n<p>All persons within the jurisdiction of the United States shall have\nthe same right in every State and Territory to make and enforce\ncontracts, to sue, be parties, give evidence, and to the full and\nequal benefit of all laws and proceedings for the security of persons\nand property as is enjoyed by white citizens, and shall be subject to\nlike punishment, pains, penalties, taxes, licenses, and exactions of\nevery kind, and to no other</p>\n</blockquote>\n<p>and the wording of the license conditions clearly shows a the "but-for" discrimination cited in the primary holding of <a href=\"https://www.supremecourt.gov/opinions/19pdf/18-1171_4425.pdf\" rel=\"noreferrer\">Comcast v. National Association of African American-Owned Media</a> that a "§1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury". The scope of §1981 is <a href=\"https://www.law.cornell.edu/wex/section_1981\" rel=\"noreferrer\">limited to cases of racial discrimination</a>, having been enacted as part of the 1866 Civil Rights Act.</p>\n",
"score": 6
}
] |
[
"united-states",
"copyright",
"software",
"licensing",
"discrimination"
] |
Does double jeopardy apply if the prosecution did a "terrible job"?
| 1 |
https://law.stackexchange.com/questions/88213/does-double-jeopardy-apply-if-the-prosecution-did-a-terrible-job
|
CC BY-SA 4.0
|
<p>The point of this question is about how double-jeopardy could potentially be abused.</p>
<p>Say that Bob is suspected of murdering Mary. If he is tried for this crime and found not guilty, then he can't be tried again for this case due to Double Jeopardy (if I'm not mistaken).</p>
<p>But what if Ivan the Incompetent was in charge of the prosecution for Bob when Bob ended up walking free. Any other prosecutor would've handily had Bob behind bars, but Ivan was just a complete idiot who happened to file the case first. Is any other party not allowed to take Bob to court about this afterwards simply because Ivan the Incompetent got to it first?</p>
<p>A mildly related example to consider would be Bill Cosby's case, where seemingly incompetent mishandling of the case resulted in his release, whereas a more proper team would have probably easily gotten him convicted.</p>
<p>Lastly, a question about abuse: what's stopping Bob from asking his friend Ivan the Incompetent to prosecute Bob for his crime and do a terrible job at it, so that Bob ends up getting off innocent and can no longer be prosecuted over it due to double Jeopardy?</p>
<p>Edit: <a href="https://law.stackexchange.com/questions/22046">Can someone get protection under Double Jeopardy for a crime by arranging to be put on trial with fake evidence that is then disproven?</a> seems relevant. But note that I'm asking in particular about whether a very poor prosecution can leave one innocent for life of a <strong>particular</strong> crime. For example, if Charlie is poor and hires a bad lawyer to prosecute, and loses. But his brother Dave, who's rich and has good lawyers, also wants to prosecute Bob. Is Dave just out of luck because of Double Jeopardy?</p>
| 88,213 |
[
{
"answer_id": 88218,
"body": "<p>The prohibition of double jeopardy is about each sovereign getting only one chance at conviction for the same offence. If the sovereign handles their chance incompetently, they don't get another attempt. (The only "exception" discussed in <a href=\"https://law.stackexchange.com/a/88211/46948\">user6726's answer here</a>: bribery of a judge such that there was no actual jeopardy in the first trial; that exception has not been extended so far to bribery of the prosecutor.)</p>\n<p>You ask whether "Bob ends up getting off innocent and can no longer be prosecuted over it due to double Jeopardy"?</p>\n<p>Yes, but only by whatever sovereign conducted the botched prosecution.</p>\n<p>The prohibition of double jeopardy does not prevent a separate sovereign for prosecuting the accused for the same acts, though, under their own criminal jurisdiction. This is why a person can be charged and prosecuted sequentially in federal court, in a tribal court operated by a\nNative American Tribe pursuant to its inherent sovereign authority, or in one or more state courts, even for the same acts, and even if the earlier prosecutions have resulted in acquittals.</p>\n<hr />\n<p>Your wording reveals a potential fundamental misunderstanding of what a criminal prosecutions is in the United States. You say "if Charlie is poor and hires a bad lawyer to prosecute." But there is no need or avenue for Charlie to hire a prosecutor. The state (or tribe, or federal government) has its own prosecutors and is in charge of the prosecution as the sovereign on behalf of the people.</p>\n",
"score": 3
}
] |
[
"united-states",
"criminal-law",
"court",
"trial",
"double-jeopardy"
] |
Can an arbitration agreement take on retroactive force?
| 1 |
https://law.stackexchange.com/questions/88147/can-an-arbitration-agreement-take-on-retroactive-force
|
CC BY-SA 4.0
|
<p>Suppose Party B signs a one year contract with a binding arbitration agreement to rent commercial space from Party A. As part of the agreement, Party B agrees to pay $2,000 a month rent to Party A (the landlord) and $1 a month for each square foot it occupies to Party C (another company who occupies space in the same building) for its share of utilities.</p>
<p>At this point, Party C has no connection to Party A. They just happen to rent space from Party A in the same building and voluntarily took on the responsibility of paying the utility bill. Every tenant has an agreement with the landlord to pay Party C in proportion to the amount of space it occupies. The agreement, however, was only signed by Party A & B, not by Party C. Party C continues accept money for utilities from Party B.</p>
<p>After several years, Party C acquires ownership of the entire building and Party B wishes to dispute the amount paid for utilities during the first year - either because it turns out that it paid more than $1 per square foot or because it miscalculated the number of square feet it was occupying and should have paid less.</p>
<p>Is the dispute subject to arbitration?</p>
<p>One one hand, Party C did not own the building when it accepted the utility payments from Party B and at that point it did not inherit any of the obligations of the prior owner. On the other hand, now that it acquired the building and inherited the obligations of the prior owner, perhaps as the recipient of the extra utility payment, the arbitration agreement gains retroactive force?</p>
| 88,147 |
[
{
"answer_id": 88154,
"body": "<h2>It’s not a question of retroactively</h2>\n<p>When Party C became the principal of the contract, they assumed all the rights and obligations of Party A - including the right/obligation to arbitrate disputes.</p>\n",
"score": 1
},
{
"answer_id": 88157,
"body": "<blockquote>\n<p>should have paid less. Is the dispute subject to arbitration?</p>\n</blockquote>\n<p>At the outset, the answer is no, although it ultimately depends on the exact terms of the contract(s).</p>\n<p>A change of ownership does not merge C's non-landlord (or "extra-contractual") capacity with the landlord capacity that C subsequently attained. Nor does a change of ownership automatically modify the scope of the arbitration agreement. Any such modification would have to be provided in the agreement itself or via an agreed amendment.</p>\n<p>B's claim against C is in C's non-landlord capacity. For that type of claims, B and C are each entitled to litigate as if no arbitration agreement existed.</p>\n",
"score": 0
}
] |
[
"united-states",
"contract-law",
"new-jersey",
"arbitration"
] |
Can my landlord force me to sign an agreement whereby I'd have to pay their legal fees?
| 3 |
https://law.stackexchange.com/questions/47986/can-my-landlord-force-me-to-sign-an-agreement-whereby-id-have-to-pay-their-lega
|
CC BY-SA 4.0
|
<p>Canada, Ontario:</p>
<p>My landlord included this item in the additional terms for a lease they want me to sign:</p>
<blockquote>
<ol start="9">
<li>Tenants agree to pay all reasonable costs, Lawyer’s fees and expenses
made or incurred by Landlord enforcing this agreement.</li>
</ol>
</blockquote>
<p>This is a major red flag for me since this would seem to imply that if my landlord wants to take me to court for anything (reasonable or not) I'd have to pay for their lawyer as well as my own lawyer. If they wanted to hire an expensive lawyer and drag it out they could easily bankrupt me.</p>
<p>Is this even legal? It feels like signing away your rights which I'm pretty sure you're not allowed to do.</p>
| 47,986 |
[
{
"answer_id": 47988,
"body": "<blockquote>\n <p>Is this even legal?</p>\n</blockquote>\n\n<p>Yes, it is lawful. The <a href=\"https://www.ontario.ca/laws/statute/06r17#BK23\" rel=\"noreferrer\">Ontario Tenancy Act</a> does not seem to outlaw that type of clauses. But the clause (or lease) will be binding only if you agree to it.</p>\n\n<p>Also note that the clause refers to <em>reasonable costs</em>, which implies that those costs must be for a <em>reasonable cause</em>. In other words, the landlord would be barred from recovery of legal expenses if you persuade the Board that the landlord's complaint is frivolous or vexatious.</p>\n\n<p>Notwithstanding that the clause is lawful, I would personally discourage you from agreeing to pay the adversary's attorney fees. Note that the clause may apply in the event that neither party fully prevails, whence it is in your best interest to preclude the risk of having to reimburse the landlord in that scenario.</p>\n",
"score": 5
}
] |
[
"canada",
"rental-property",
"landlord",
"tenant",
"ontario"
] |
My car was towed out of the city to another county, do city laws apply to maximum fees?
| 0 |
https://law.stackexchange.com/questions/88206/my-car-was-towed-out-of-the-city-to-another-county-do-city-laws-apply-to-maximu
|
CC BY-SA 4.0
|
<p>My car was Towed out of Seattle and into Burien, the Seattle website listing maximum fees a towing company can charge says "From private property in Seattle", am I correct in reading that as the Seattle maximum applies and they aren't allowed to have charged me three times that amount for towing my vehicle?
As a side note is it worth disputing them claiming a 15m drive took them two hours or is that too hard to disprove?</p>
| 88,206 |
[
{
"answer_id": 88207,
"body": "<p>I'm sure you know that a 15 mile drive in Seattle can easily take 2 hours, which incidentally is not limited to driving time. The Seattle towing ordinance is <a href=\"https://library.municode.com/wa/seattle/codes/municipal_code?nodeId=TIT6BURE_SUBTITLE_IVNELICO_CH6.214TOCOLIRE_6.214.220MAPRIMFETOSEUNTOSTAFURRE\" rel=\"nofollow noreferrer\">here</a>, with a more user-friendly explanation <a href=\"https://www.seattle.gov/your-rights-as-a-customer/find-a-towed-car/max-towing-fees-private-property-impounds\" rel=\"nofollow noreferrer\">here</a>. Nothing in the ordinance addresses the distinction between "within Seattle" versus "from Seattle". Bear in mind that this is for impounded vehicles: if <em>you</em> want your car towed from Northgate to Burien, they can charge whatever they want. Also, Seattle and Burien are in the same county.</p>\n",
"score": 1
}
] |
[
"traffic",
"washington",
"towing"
] |
Is it illegal to warn employees about workplace harassers if the company doesn't want you to?
| 3 |
https://law.stackexchange.com/questions/88172/is-it-illegal-to-warn-employees-about-workplace-harassers-if-the-company-doesnt
|
CC BY-SA 4.0
|
<p>I was sexually harassed at my previous job. I filed a complaint to the company, but they downplayed and dismissed it. I've heard that workplace harassment cases are hard to win, and I didn't think I had enough proof for a successful lawsuit, so I quit. I however, contacted a few of my former colleagues to warn them about the harasser. The company found out about this, and started threatening me with legal action. They didn't specify what law I violated, but obviously they want to keep the rest of team from knowing about what happened.</p>
<p>Is what I did illegal? Can a company sue me for contacting employees if they consider it unwanted communication?</p>
| 88,172 |
[
{
"answer_id": 88175,
"body": "<p>A person can, in extreme cases, get a court order prohibiting you from contacting them – nothing that you've said even remotely make this a plausible outcome. Furthermore, the company would have absolutely no standing to get such an order.</p>\n<p>If you say certain untrue things about the company, you can be sued for defamation. You should be careful about saying things like "This company encourages sexual harassment".</p>\n<p>There is some chance that you are bound by a clause in your employment that prevents you from disparaging the company after you leave. If you find such a clause in the contact, you should hire an attorney to advise you whether your planned statement would be in violation of that clause (which could lead to a lawsuit).</p>\n",
"score": 2
},
{
"answer_id": 88180,
"body": "<p>This isn't in itself illegal. However, it could involve other aspects that are tortious. You may have signed a contract that bars this behavior, although such a clause would likely be found to be against public policy, so its enforceability would be questionable. Also, if you used a company directory to get contact information that you are now using to contact your former coworkers, or if you are using company resources such as emailing them at their work addresses, that could give rise to a claim.</p>\n<p>The fact that the company hasn't articulated a legal basis, however, does suggest that they don't have one.</p>\n",
"score": 0
}
] |
[
"united-states",
"employment",
"freedom-of-speech",
"workplace"
] |
How shall I handle user consent "remember" option
| -2 |
https://law.stackexchange.com/questions/88201/how-shall-i-handle-user-consent-remember-option
|
CC BY-SA 4.0
|
<p>I get consent from user for some operation. While consenting user can check "remember consent" option and this is handled as below:</p>
<ol>
<li>Consent is saved to db</li>
<li>Some action is done and consent is deleted from db</li>
</ol>
<p>But problem is at step 2. If user cancel HTTP request that give us consent after the consent is saved in db, then consent isn't deleted from db. So at another request this consent this consent will be used.</p>
<p>Is it legal behavior?</p>
| 88,201 |
[
{
"answer_id": 88204,
"body": "<p>The GDPR does not prescribe how exactly consent must be managed, as long as consent was obtained in line with the GDPR's principles. Similarly, the EDPB does not provide concrete recommendations in <a href=\"https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-052020-consent-under-regulation-2016679_en\" rel=\"nofollow noreferrer\">its guidelines on consent</a>, mainly noting that</p>\n<blockquote>\n<p>Controllers are free to develop methods to comply with this provision in a way that is fitting in their\ndaily operations.</p>\n</blockquote>\n<p>I would not be too concerned with edge cases like failing HTTP requests, at least not any more than for other HTTP endpoints. If the user indicated consent, and you act on that indication of consent in good faith, that's probably fine.</p>\n<p>However, remember that you must provide a equally easy way for the user to revoke consent later. If the user changes their mind, they can use the mechanism that you offer to inspect their consent status, and revoke it if they want. But again, how to do that is largely up to you.</p>\n",
"score": 3
}
] |
[
"gdpr",
"consent"
] |
Would a law that increased penalties for actions taken before its passage be considered ex post facto?
| 0 |
https://law.stackexchange.com/questions/87549/would-a-law-that-increased-penalties-for-actions-taken-before-its-passage-be-con
|
CC BY-SA 4.0
|
<p>Suppose a new law was passed in a US state banning jaywalking, which was not previously illegal in this state. (That's just a random example; the particular offense is not relevant.)</p>
<p>It is common for laws to increase penalties for repeated violations. For example, this jaywalking law might specify a $50 fine for a first offense, $100 for a second, $150 for a third, and $300 for a fourth or greater violation.</p>
<p>Suppose, however, that it also specifies that if the government can prove that the person did what is now illegal jaywalking before the law was passed, each incident that can be proved counts as a past violation for the purposes of the law. For example, if someone is caught jaywalking for the first time under this law, but the government can also prove that they jaywalked legally twice before the law took effect, this is considered a third offense and leads to a $150 fine.</p>
<p>Is this an unconstitutional ex post facto law?</p>
| 87,549 |
[
{
"answer_id": 87633,
"body": "<blockquote>\n<p>Is this an unconstitutional ex post facto law?</p>\n</blockquote>\n<p>Yes. Past actions were lawful, and they can’t be made unlawful simply because there is irrefutable evidence that they happened.</p>\n<p>I think you’d actually face the same problem with actions for which the statue of limitations has expired. You can’t punish them today for acts which it is unlawful to punish them for today.</p>\n<p>The closest you could probably get is a maximum sentence taking their history and likelihood of repeating into consideration. That isn’t punishing them for past actions, it is treating them with a reasonable appreciation of their chance of recidivism and/or threat to the community.</p>\n<p>Also see <a href=\"https://supreme.justia.com/cases/federal/us/269/167/\" rel=\"nofollow noreferrer\">Beazell v. Ohio</a>: where the court says</p>\n<blockquote>\n<p>It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed which was innocent when done, which makes more burdensome the punishment for a crime after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto</p>\n</blockquote>\n",
"score": 2
}
] |
[
"united-states",
"constitutional-law",
"us-constitution",
"ex-post-facto"
] |
Do not park on the parking lane
| -1 |
https://law.stackexchange.com/questions/88198/do-not-park-on-the-parking-lane
|
CC BY-SA 4.0
|
<p>How come Alberta's driver's guide says
on a roadway outside an urban area, "<a href="https://www.alberta.ca/parking.aspx?" rel="nofollow noreferrer">do
not park on the parking lane</a>"? Isn't such a lane used for parking? Thank you!</p>
<p>"On a roadway outside an urban area, do not park:</p>
<p>on the roadway, parking lane or shoulder of a primary highway except where:</p>
<ul>
<li><p>your vehicle is incapable of moving under its own power,</p>
</li>
<li><p>an emergency arises, or</p>
</li>
<li><p>it is permitted by law"</p>
</li>
</ul>
| 88,198 |
[
{
"answer_id": 88202,
"body": "<p>Reading those clauses, you can see that you can park in an emergency. You can park with your vehicle dies and you can't move it. You can park if it is specifically allowed (maybe a sign saying "unrestricted parking allowed here").\nOtherwise, you may park on a parking lane (or roadway, or shoulder) but subject to conditions also listed: "unless there is a clear passage for other motor vehicles, and your vehicle can be seen for 60 metres (200 feet) along the roadway in both directions".</p>\n<p>Regardless of the name of the piece of road, you <em>are</em> allowed to park there but only <em>if</em> your car is clearly visible, and there is room to get around you.</p>\n",
"score": 3
}
] |
[
"driving"
] |
a murder in death penalty us state but the culprit was'nt caught until 45 years later during which that state had since abolished capital punishment
| 0 |
https://law.stackexchange.com/questions/88196/a-murder-in-death-penalty-us-state-but-the-culprit-wasnt-caught-until-45-years
|
CC BY-SA 4.0
|
<p>as said if a murder was committed in a US state that had the death penalty for that offence at the time but the person who committed it was'nt caught until 45 years later(during which the death penalty for murder in that state had been outlawed/abolished)could they"upon conviction"still face execution/be executed?whatabout under U.S federal law/s?</p>
| 88,196 |
[
{
"answer_id": 88197,
"body": "<p>It depends on how the death penalty is abolished. The death penalty was partially abolished by the state supreme court in Washington in <a href=\"https://scholar.google.com/scholar_case?case=8854659891232700142\" rel=\"nofollow noreferrer\">State v. Gregory</a> – for the third time. The court states that "None of these prior decisions held that the death penalty is per se unconstitutional, nor do we". Instead, it was found unconstitutional in its application: it is "invalid because it is imposed in an arbitrary and racially biased manner". This is similar to the situation with <a href=\"https://supreme.justia.com/cases/federal/us/408/238/\" rel=\"nofollow noreferrer\">Furman v. Georgia</a>, where</p>\n<blockquote>\n<p>The Court holds that the imposition and carrying out of the death\npenalty in these cases constitute cruel and unusual punishment in\nviolation of the Eighth and Fourteenth Amendments. The judgment in\neach case is therefore reversed insofar as it leaves undisturbed the\ndeath sentence imposed, and the cases are remanded for further\nproceedings</p>\n</blockquote>\n<p>4 years later in <a href=\"https://supreme.justia.com/cases/federal/us/428/153/\" rel=\"nofollow noreferrer\">Gregg v. Georgia</a>, SCOTUS found that the revised procedure was consistent with the 8th Amendment. In these cases, imposition of the death penalty was invalidated, so any person so sentenced could therefore not be executed. These rulings were time-independent, that is, they refer to the imposition and carrying out of sentence, regardless of when the crime was committed.</p>\n<p><a href=\"https://supreme.justia.com/cases/federal/us/432/282/\" rel=\"nofollow noreferrer\">Dobbert v. Florida</a> interacts with these cases. Dobbert committed murder in the period when there was no constitutional execution, but the trial was carried out under a modified procedural regime that constitutionally allowed for execution. The court states that</p>\n<blockquote>\n<p>The new statute simply altered the methods employed in determining\nwhether the death penalty was to be imposed, and there was no change\nin the quantum of punishment attached to the crime</p>\n</blockquote>\n<p>so the revised procedures could be followed even though the statutory change was enacted after the crime was committed. This is one way in which a sentence could be "abolished" when the act was committed. and yet imposed at sentencing.</p>\n<p>In the ruling, the court attempts to clarify the no ex post facto law clause of the Constitution. Citing <a href=\"https://supreme.justia.com/cases/federal/us/269/167\" rel=\"nofollow noreferrer\">Beazell v. Ohio</a>,the court observes that</p>\n<blockquote>\n<p>It is settled, by decisions of this Court so well known that their\ncitation may be dispensed with, that any statute which punishes as a\ncrime an act previously committed which was innocent when done, which\nmakes more burdensome the punishment for a crime after its commission,\nor which deprives one charged with crime of any defense available\naccording to law at the time when the act was committed, is prohibited\nas ex post facto</p>\n</blockquote>\n<p>So for instance suppose that a legislature decides to modify the statutory penalty for murder to 10 years in prison. That is therefore the penalty for any murder carried out at the time. If a person person commits murder in that period, even if they are not tried or sentences until after the legislature re-imposes the death penalty, that new sentence cannot apply to murder in question. The crucial difference involves distinguishing changes in the law of procedure, vs. what the actual penalty will be.</p>\n<p>As also stated by the court, the concept of "ex post facto law" involves not just change in law, it crucially involves making things worse for the defendant:</p>\n<blockquote>\n<p>It is axiomatic that for a law to be ex post facto it must be more\nonerous than the prior law</p>\n</blockquote>\n<p>There is no general US legal finding that a person is entitled to a lesser penalty when the legislature statutorily reduces the penalty for a crime, however that effect could come from appropriate legislative action, as plays a role in <a href=\"https://www.supremecourt.gov/opinions/21pdf/20-1650_3dq3.pdf\" rel=\"nofollow noreferrer\">Concepcion v. US</a>. Congress enacted a retroactive <em>amelioration</em> of the law (pertaining to weight thresholds related to sentencing in drug laws). SCOTUS presupposes in their ruling that this is possible because of this act of Congress (the issue in this case is about court discretion in what information is considered – a procedural question). Retroactive application of a change in a punishment statute is not automatic, it requires specific legislative enactment.</p>\n",
"score": 1
}
] |
[
"murder"
] |
Is Apple abusing its position with iOS by requiring MacOS to build apps?
| 3 |
https://law.stackexchange.com/questions/28484/is-apple-abusing-its-position-with-ios-by-requiring-macos-to-build-apps
|
CC BY-SA 4.0
|
<p>In Europe, we have a concept of abuse of a dominant position.
<a href="http://ec.europa.eu/competition/consumers/abuse_en.html" rel="nofollow noreferrer">http://ec.europa.eu/competition/consumers/abuse_en.html</a></p>
<p>When you develop an App for the very popular iOS devices, you're required to use a less popular MacOS device to do so. Is this an abuse of a dominant position in the mobile/cellular market to sell their (poor quality in my opinion!) MacOS devices?</p>
| 28,484 |
[
{
"answer_id": 28534,
"body": "<p>I don’t think you can require Apple to develop all their tools for Windows as well. You can’t require them to make MacOS available for non-apple computers, and since there is massive precedent of malware generated by hacked versions of Xcode, I think they are completely within their rights to insist on original software being used for development. </p>\n",
"score": 2
},
{
"answer_id": 88026,
"body": "<p>"Abuse of a dominant position" is a concept from <a href=\"https://en.wikipedia.org/wiki/Competition_law\" rel=\"nofollow noreferrer\">competition law</a>. In Apple's home jurisdiction, the United States, this field is called <a href=\"https://en.wikipedia.org/wiki/United_States_antitrust_law\" rel=\"nofollow noreferrer\">antitrust</a> and the concept of abuse of a dominant position is called (unlawful) <a href=\"https://en.wikipedia.org/wiki/Monopolization\" rel=\"nofollow noreferrer\">monopolization</a>.</p>\n<p>Antitrust cases are legally complex, and there is usually significant room for debate about whether a particular company is breaking the law or pursuing its legitimate interests. There are a number of claims pending against Apple alleging unlawful monopolization of various iOS-related markets. Identifying the <a href=\"https://en.wikipedia.org/wiki/Relevant_market\" rel=\"nofollow noreferrer\">relevant market</a> is another fundamental concept in competition law which can be hotly contested in litigation.</p>\n<p>As of January 2023, the most authoritative legal opinion on the antitrust implications of Apple's control of iOS is the <a href=\"https://cand.uscourts.gov/wp-content/uploads/cases-of-interest/epic-games-v-apple/Epic-v.-Apple-20-cv-05640-YGR-Dkt-812-Order.pdf\" rel=\"nofollow noreferrer\">September 10, 2021</a> decision of the United States District Court for the Northern District of California in <em><a href=\"https://en.wikipedia.org/wiki/Epic_Games_v._Apple\" rel=\"nofollow noreferrer\">Epic Games v. Apple</a></em>. That decision has been <a href=\"https://www.ca9.uscourts.gov/cases-of-interest/epic-games-v-apple-inc/\" rel=\"nofollow noreferrer\">appealed</a> to the Ninth Circuit Court of Appeals, which heard oral argument on <a href=\"https://www.youtube.com/watch?v=WS8Oe09GaqU\" rel=\"nofollow noreferrer\">November 15, 2022</a>, but has not yet issued its decision.</p>\n<p>Epic did not complain about the need to develop iOS apps on macOS. Rather, Epic says that Apple illegally monopolized its control over the "aftermarkets" for iOS app distribution and in-app payment processing. The district court rejected Epic's federal antitrust claim by adopting a definition of the relevant market which was closer to that advanced by Apple:</p>\n<blockquote>\n<p>Ultimately, after evaluating the trial evidence, the Court finds that the relevant market here is <em><strong>digital mobile gaming transactions</strong></em>, not gaming generally and not Apple’s own internal operating systems related to the App Store. The mobile gaming market itself is a $100 billion industry. The size of this market explains Epic Games’ motive in bringing this action …</p>\n<p>Having defined the relevant market as digital mobile gaming transactions … the Court cannot ultimately conclude that Apple is a monopolist under either federal or state antitrust laws. While the Court finds that Apple enjoys considerable market share of over 55% and extraordinarily high profit\nmargins, these factors alone do not show antitrust conduct. Success is not illegal.</p>\n</blockquote>\n<p>The district court's decision was sharply criticised by the <a href=\"https://cdn.ca9.uscourts.gov/datastore/general/2022/10/20/21-16506-Amicus-brief-by-United-States-of-America.pdf\" rel=\"nofollow noreferrer\">Department of Justice</a>, the <a href=\"https://cdn.ca9.uscourts.gov/datastore/general/2022/10/20/21-16506-Amicus-brief-by-Electronic-Frontier-Foundation.pdf\" rel=\"nofollow noreferrer\">Electronic Frontier Foundation</a> and <a href=\"https://cdn.ca9.uscourts.gov/datastore/general/2022/10/20/21-16506-Amicus-brief-by-Microsoft-Corporation.pdf\" rel=\"nofollow noreferrer\">Microsoft</a>, who all filed <a href=\"https://en.wikipedia.org/wiki/Amicus_curiae\" rel=\"nofollow noreferrer\">amici briefs</a> broadly in support of Epic's position. One <a href=\"http://www.fosspatents.com/2022/11/apple-on-losing-track-against-epic.html\" rel=\"nofollow noreferrer\">commentator</a> who has analysed the oral argument in the Ninth Circuit confidently predicts that "Apple will most likely lose this appeal" and "this case will presumably end up in the Supreme Court."</p>\n<p>I will update this answer when a higher court determines the relevant market, under U.S. antitrust law, for assessing claims that Apple is unlawfully monopolizing its control over iOS.</p>\n",
"score": 1
}
] |
[
"united-kingdom",
"european-union",
"competition",
"antitrust-law"
] |
Can americans break american laws while in another country?
| -2 |
https://law.stackexchange.com/questions/88177/can-americans-break-american-laws-while-in-another-country
|
CC BY-SA 4.0
|
<p>If a 20 year old american brings his 16 year old america girlfriend to a country where the legal age of consent is 14, and then have sex with her there, is he liable to be prosecuted back in the US?</p>
| 88,177 |
[
{
"answer_id": 88178,
"body": "<p>I'm answering your title question and assuming that you meant to present a circumstance that would actually trigger criminal liability, but based on the ages you've actually used in your hypothetical, you may not have done so. I'll ignore that complication and just present what the law is. <strong>Yes, there are some U.S. laws that people can be found to violate while in another country.</strong></p>\n<p>The Department of Justice has <a href=\"https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-extraterritorial-sexual-exploitation-children\" rel=\"nofollow noreferrer\">a "citizen's guide"</a> explaining extraterritorial sexual exploitation of children. The main offences are:</p>\n<ul>\n<li><a href=\"https://www.law.cornell.edu/uscode/text/18/2423\" rel=\"nofollow noreferrer\">18 U.S.C. § 2423(a)</a>: Transportation with intent to engage in criminal sexual activity</li>\n<li><a href=\"https://www.law.cornell.edu/uscode/text/18/2423\" rel=\"nofollow noreferrer\">18 U.S.C. § 2423(d)</a>: Travel with intent to engage in illicit sexual conduct</li>\n<li><a href=\"https://www.law.cornell.edu/uscode/text/18/2423\" rel=\"nofollow noreferrer\">18 U.S.C. § 2423(c)</a>: Engaging in illicit sexual conduct in foreign places</li>\n</ul>\n<p>For § 2423(a), there must be the intent to engage in "any sexual activity for which any person can be charged with a criminal offense."</p>\n<p>For § 2423(b) and (c), "illicit sexual conduct" means, among a few other things: "a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of <a href=\"https://www.law.cornell.edu/uscode/text/18/part-I/chapter-109A\" rel=\"nofollow noreferrer\">chapter 109A</a> if the sexual act occurred in the special maritime and territorial jurisdiction of the United States."</p>\n<p>Chapter 109A includes § 2243(a):</p>\n<blockquote>\n<p>Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who</p>\n<p>(a) has attained the age of 12 years but has not attained the age of 16 years; and</p>\n<p>(b) is at least four years younger than the person so engaging;</p>\n<p>or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.</p>\n</blockquote>\n",
"score": 3
}
] |
[
"united-states",
"international"
] |
Are claims that Elon Musk cannot back out of buying Twitter after agreeing to buy before actually doing so valid without a full deposit in escrow?
| -1 |
https://law.stackexchange.com/questions/83265/are-claims-that-elon-musk-cannot-back-out-of-buying-twitter-after-agreeing-to-bu
|
CC BY-SA 4.0
|
<blockquote>
<p>Elon Musk must close Twitter deal by end of this week or face trial. (CNN Business, October 24th, 2022)</p>
</blockquote>
| 83,265 |
[
{
"answer_id": 83273,
"body": "<h2>I don’t know, I haven’t read it</h2>\n<p>It might require a deposit. It might not.</p>\n<p>There is no need for a deposit to make a contract binding.</p>\n",
"score": 2
},
{
"answer_id": 83298,
"body": "<p>A contract can specify that a deposit is required before some obligation is effective. Or it can fail to include any such requirement, in whch case no deposit is needed. In some kinds of contract, such as house purchases, a deposit is usual.But even in a transaction where a deposit is usual, it may be omitted from the contract, if the parties so agree.</p>\n<p>An option to buy normally gives one party the right to make a specified purchase at a specified price within a specified time. There need not be a deposit, although there could be. There does need to be some consideration to make the contract valid (in a common-law jurisdiction). This is often a purchase price for the <em>option</em>. But it can be small, even nominal, and is separate from any deposit.</p>\n<p>A deposit give one party some assurance tht the other party is serious about a transaction. Often it will be forfeited, in whole or in part, if the party giving the deposit fails to proceed without good reason. But that depends on the terms of the contract, and perhaps on specific law that applies to the transaction, particularly in consumer transactions (which any sale of Twitter is surely not).</p>\n<p>I knpw of no law that <strong>requires</strong> a deposit for a contract to be binding in any situation, although there could be one I do not know of. Inb commo-law systems there must generally be <strong>some</strong> consideration for a contract to be binding, but this need not take the form of a deposit.</p>\n<p>I do not see what the relevance of a "Fraudulent stipulation" mentioned in the question would be.</p>\n",
"score": 1
}
] |
[
"contract-law",
"securities"
] |
Can action be taken against a Discord server for someone admitting in chat they're under 13 then changing their age to over 13 thereafter?
| 2 |
https://law.stackexchange.com/questions/60758/can-action-be-taken-against-a-discord-server-for-someone-admitting-in-chat-they
|
CC BY-SA 4.0
|
<p>Suppose you have a Discord server with a member who voluntarily tells people in chat that they are 12 years old. For purposes of this example, the user says</p>
<blockquote>
<p>I am 12 years old.</p>
</blockquote>
<p>Then after making that claim, they tell the moderators they are instead 18 years old in a private DM. For purposes of this example, the user says</p>
<blockquote>
<p>I am actually 18 years old.</p>
</blockquote>
<p>My questions are</p>
<ol>
<li><p>Whether or not the Discord server is legally required to ban this user after voluntarily saying they are 12 years old, even if they then say it was fabricated, either in the public chat or via private DM.</p>
</li>
<li><p>Outside of banning the user, is there any other action the server administrators are required to take?</p>
</li>
<li><p>Hypothetically speaking, could the server owner/server be held liable if god forbid something happened to or on behalf of that individual?</p>
</li>
</ol>
<p><strong>Useful Information</strong></p>
<p><a href="https://discord.com/terms" rel="nofollow noreferrer">Discord TOS says</a>:</p>
<blockquote>
<p>By using or accessing the Discord application (the “App”) or the website located at <a href="https://discord.com" rel="nofollow noreferrer">https://discord.com</a> (the "Site"), which are collectively referred to as the “Service,” you agree (i) that you are 13 years of age and the minimum age of digital consent in your country, (ii) if you are the age of majority in your jurisdiction or over, that you have read, understood, and accept to be bound by the Terms, and (iii) if you are between 13 (or the minimum age of digital consent, as applicable) and the age of majority in your jurisdiction, that your legal guardian has reviewed and agrees to these Terms.</p>
</blockquote>
<p><a href="https://twitter.com/discord/status/1022190648932401154?lang=en" rel="nofollow noreferrer">A recent Tweet from Discord</a>:</p>
<blockquote>
<p>Anyone under the age of 13 cannot use Discord per our Terms of Service. If a server owner is aware and ignores it, we will take action on the server and/or owner.</p>
</blockquote>
| 60,758 |
[
{
"answer_id": 60779,
"body": "<h2>Yes (probably), under COPPA</h2>\n<p>The FTC has stated that <a href=\"https://techcrunch.com/2019/09/04/youtube-creators-may-also-be-held-liable-for-coppa-violations-following-ftc-settlement/\" rel=\"noreferrer\">YouTube content creators could be held liable</a> under the <a href=\"https://en.wikipedia.org/wiki/Children%27s_Online_Privacy_Protection_Act\" rel=\"noreferrer\">Children's Online Privacy Protection Act (COPPA)</a>, a United States law that "imposes certain requirements on operators of websites or online services directed to children under 13 years of age, and on operators of other websites or online services that have actual knowledge that they are collecting personal information online from a child under 13 years of age." (<a href=\"https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/childrens-online-privacy-protection-rule\" rel=\"noreferrer\">source</a>)</p>\n<p>The <a href=\"https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions-0\" rel=\"noreferrer\">FTC's FAQ on complying with COPPA</a> notes that "operators will be held to have acquired actual knowledge of having collected personal information from a child where, for example, they later learn of a child’s age or grade from a concerned parent who has learned that his child is participating on the site or service."</p>\n<p>It also has the following question/answer (emphasis added):</p>\n<blockquote>\n<p><em>I operate a general audience video game service and do not ask visitors to reveal their ages. I do permit users to submit feedback, comments, or questions by email. What are my responsibilities if I receive a request for an email response from a player who indicates that he is under age 13?</em></p>\n<p>Under the Rule’s one-time response exception (16 C.F.R. § 312.5(c)(3)) you are permitted to send a response to the child, via the child’s online contact information, without sending notice to the parent or obtaining parental consent. <em><strong>However, you must delete the child’s online contact information from your records promptly after you send your response.</strong></em></p>\n</blockquote>\n<p>Assuming the FTC is correct that content creators (not just the service itself) are responsible for COPPA compliance, a Discord server administrator would likely be required to ban/delete the account of a user upon discovering (acquiring actual knowledge) that the user is under 13. It <em>may</em> be a defense that they believed the user's retraction and claim that it was a lie, but I wouldn't want to be stuck arguing that in court (an underage user who doesn't want to be banned certainly would have a good reason to lie about their age upon finding out that they would be banned for having admitted their actual age).</p>\n",
"score": 5
},
{
"answer_id": 72544,
"body": "<p>To build up on <a href=\"https://law.stackexchange.com/a/60761/11306\">hszmv's answer</a>, the responsibility to age verity is on the operators of the Discord service. But, since the user has made both statements that they are 12 and that they are 18, the other users cannot be certain that they are 13 or older. The prudent thing to do at such point is to demand further age verification from the user.</p>\n<p>What is lost in the conversation here is that the operators of a Discord serv<strong>er</strong> are not operators of the Discord serv<strong>ice</strong>. As such, the operators of the server are just other users of the service. And the logistics of age verification may be beyond the scope of what they are equipped to do. In order to make sure that they are not helping another user evade TOS, they should</p>\n<ol>\n<li>suspend the user's account on the server;</li>\n<li>notify the Discord service operator of the situation;</li>\n<li>notify the Discord service operator of the suspension;</li>\n<li>ask the Discord service operator to verify that the user is not in violation the TOS;</li>\n<li>if and when the Discord service operator manages to verify that the user is not in the violation of the TOS, the server operators can use their own judgement whether they want to restore the user's server-access privileges.</li>\n</ol>\n",
"score": 2
},
{
"answer_id": 60761,
"body": "<p>Generally age restrictions are online are only enforceable if the user discloses his/her real age. Discord's TOS is a contract and a 12 year old would be banned for violating the "must be 13" terms. Discord may kick them. For the server owner, it would be on him/her if he/she does not ban the offender, though Discord would likely only come down on the 12 year old only, thus removing the problem of checking the server owner for knowlege of the user age.</p>\n<p>In all likely hood, the verify age done in private with Server owners will only satisfy the servers own age restriction rules. Discord may have grounds to terminate the account just to be safe, which would likely mean the "12 year old user" could return with a new account and not make this same mistake.</p>\n<p>Ultimately, as this is a contract between a service provider (Discord) and an end User (12 year Old) the contract explicitly states they will not make contracts (TOS) with a user of 12 so the user violated the contract and thus terminates the User to use of the account they made the statement from.</p>\n",
"score": 0
},
{
"answer_id": 60777,
"body": "<h2>You can tell lies on Discord</h2>\n<p>I know it’s hard to believe but there have been recorded instances (isolated, I’m sure) where what people have posted on social media is not actually true.</p>\n<p>So if someone posts “I am 12 years old” or “is am a half-elf barbarian” or “the 45th President of the USA was the greatest ever” that is evidence of precisely zero weight. It might be true, it might not be true.</p>\n<p>Discord is responsible for enforcing their terms of service and complying with the law. Unless you as a “server owner” agree to do this for Discord, it’s not your problem. Even if there is such an obligation in the terms you agreed to it’s likely to be unenforceable as unconscionable. Of course, Discord have the right to not let you use their platform.</p>\n",
"score": 0
}
] |
[
"internet",
"online",
"coppa"
] |
Is it possible for an individual to commit money laundering like a bank?
| 6 |
https://law.stackexchange.com/questions/88151/is-it-possible-for-an-individual-to-commit-money-laundering-like-a-bank
|
CC BY-SA 4.0
|
<p>In the classic example of money laundering, Charlie the Criminal would take his dirty money to Bob the Banker and get it in some form that is spendable and transferable. In this situation it would be expected that Charlie would know it is dirty money, but Bob the Banker does not need to be specifically aware the the money has criminal origin. Because of this he implements, if he is for example a cryptocurrency exchange, Know Your Customer (KYC) checks and refuses to deal in certain products, Monero in the UK for example.</p>
<p>What if however Bob is not a financial institution but a member of the public (Bob the Builder perhaps)? If he uses a decentralized exchange such as <a href="https://bisq.network/" rel="noreferrer">bisq</a> he would be performing much the same actions as Bob the Banker or Cryptocurrency exchange, including exchanging fiat currency for cryptocurrency and trading in Monero. The design of the market makes it impossible to perform any such KYC checks, and at least when exchanging fiat currency makes it clear that there is an covert element in the process (you are informed by the interface not to reference the transfer as "bisq" or "cryptocurrency transaction").</p>
<p>It is possible for an individual to commit the crime that a bank could be found guilty of by having insufficient money laundering prevention measures?</p>
<p>As far as jurisdiction as one never really knows where the other party is located any jurisdiction where this is illegal probably makes it illegal anywhere so the most restrictive rules are probably the most relevant.</p>
| 88,151 |
[
{
"answer_id": 88155,
"body": "<p>Because money laundering is a form of <a href=\"https://en.wikipedia.org/wiki/Transnational_crime\" rel=\"noreferrer\">transnational crime</a> there is an extensive system of treaties which harmonise, to some extent, the laws of most developed countries. Relevantly to your question, the <a href=\"https://www.unodc.org/pdf/crime/a_res_55/res5525e.pdf\" rel=\"noreferrer\">United Nations Convention against Transnational Organized Crime</a> provides in article 7:</p>\n<blockquote>\n<p>Each State Party … Shall institute a comprehensive domestic regulatory and supervisory regime for banks and <strong>non-bank financial institutions and, where appropriate, other bodies particularly susceptible to money-laundering</strong>, within its competence, in order to deter and detect all forms of money-laundering, which regime shall emphasize requirements for <strong>customer identification, record-keeping and the reporting of suspicious transactions</strong> …</p>\n</blockquote>\n<p>Generally, local laws will define concepts like "money transmitting business" and require individuals engaged in these businesses to obtain a licence and comply with similar KYC and reporting obligations to a bank.</p>\n<p>For example, in the <strong>United States</strong>, <a href=\"https://www.law.cornell.edu/uscode/text/18/1960\" rel=\"noreferrer\">18 U.S.C § 1960</a> makes it illegal to run an unlicensed money transmitting business. In <em>United States v. Rockcoons</em> (<a href=\"https://www.courtlistener.com/docket/6325721/united-states-v-rockcoons/\" rel=\"noreferrer\">3:17-cr-03690</a>), the defendant <a href=\"https://www.justice.gov/usao-sdca/pr/man-sentenced-fraud-and-operating-unlicensed-money-transmitting-business\" rel=\"noreferrer\">committed this offence through peer-to-peer bitcoin trading</a>:</p>\n<blockquote>\n<p>Rockcoons advertised his Bitcoin exchange services on the website LocalBitcoins.com. In 2015, HSI identified Rockcoons as the most prolific San Diego-based seller. In April 2016, the defendant’s LocalBitcoins.com profile showed that he continued to advertise as a trader and seller of Bitcoin in San Diego, with his profile reflecting that he had engaged in more than 500 transactions. As of October 2017, the defendant’s profile indicated that he conducted more than 1,000 bitcoin trades with more than 644 people. Rockcoons received a commission of as much as 36 percent per transaction.</p>\n</blockquote>\n<p>On the other side of the Atlantic, the law in the <strong>United Kingdom</strong> is explained in <em>Vladimir Consulting Ltd v Financial Conduct Authority</em> <a href=\"https://www.bailii.org/uk/cases/UKUT/TCC/2022/168.pdf\" rel=\"noreferrer\">[2022] UKUT 168 (TCC)</a>. VCL had been trading on LocalBitcoins.com since 2017, but from 2020, was required to become licensed as a "cryptoasset exchange provider" under the <em><a href=\"https://www.legislation.gov.uk/uksi/2019/1511/contents/made\" rel=\"noreferrer\">Money Laundering and Terrorist Financing (Amendment) Regulations 2019</a></em>. VCL was refused a licence because it had consistently failed to comply with requirements of the money laundering regulations. VCL challenged this decision in the Upper Tribunal, which analysed the applicable rules and confirmed the Financial Conduct Authority's decision.</p>\n",
"score": 9
}
] |
[
"cryptocurrency",
"money-laundering",
"any-jurisdiction"
] |
Being employed in two EU countries simultaneously
| 0 |
https://law.stackexchange.com/questions/88141/being-employed-in-two-eu-countries-simultaneously
|
CC BY-SA 4.0
|
<p>Is it possible (legal) to be employed in two jobs (full time) in two different European countries at the same time?</p>
<p>Secondly, is it possible to have work permits of two countries simultaneously being a non-EU citizen? For e.g. now when I have started working in Netherlands and applied for a residence permit here will they inform the German officials about my <strong>auftehlatserlaubnis</strong> in Germany (which is still valid)?... As is in this case my primary address will not be in Germany, is it possible that my German permit gets void/cancelled?</p>
| 88,141 |
[
{
"answer_id": 88168,
"body": "<p>I don't think German law would allow you to work two full-time jobs, because it would be too many working hours and bad for your health and they don't like that. Whether it is allowed to be <em>employed</em> twice (if you manage to be employed for 40 hours a week while working only twenty), I don't know. Your two employers wouldn't be happy if they find out, obviously.</p>\n<p>If the second employment is another country, that doesn't matter. What matters is how many hours you work. Two jobs in Germany, or one in Germany and one elsewhere, is exactly the same as far as working hours are concerned.</p>\n<p>And having two work permits is fine. You can use them to work 20 hours in each country. If you have a 40 hour job in Germany and sign a contract in another country for another 40 hour job, they'd expect you to quit one job. You'd have the right to work in A, and the right to work in B, but because of labour laws you don't have the right to work two full time jobs. Just like a dual citizen.</p>\n",
"score": 1
}
] |
[
"tax-law",
"germany",
"immigration",
"netherlands"
] |
How does one budget when deciding to commence legal action?
| 0 |
https://law.stackexchange.com/questions/88121/how-does-one-budget-when-deciding-to-commence-legal-action
|
CC BY-SA 4.0
|
<p>Is there a way to predict how much a lawsuit will cost before it is started? I am deciding if it's worth it to hire a lawyer. At a high level I would like another party to stop doing what it's doing. I had a free consultation with a firm where I gave them the details of the scenario and what I would like to happen. They said that the next step would be for them to do research to see if anything can be done and find the likelihood of success. They gave me a fixed price which is $$$. Should I ask how much it would likely cost to proceed with legal action if there is legal action that could be taken? I'm guessing it's not possible for them to no this until after the initial research. I don't want to be in the situation where I spend money and have them tell me that there is something that can be done but it would cost an exuberant amount more.</p>
| 88,121 |
[
{
"answer_id": 88163,
"body": "<p>A law firm can try to estimate the cost of taking legal action at very general and rough level.</p>\n<p>But it is almost impossible to accurately determine the legal fees that will be incurred in litigation because the cost is highly dependent upon how the other party acts, how the court acts, and what evidence reveals, in ways that are not possible to accurately predict at the outset.</p>\n<p>An accurate estimate is, in general, only possible in the case of very simple cases that proceed with no unexpected twists or turns. For a lawyer with a general civil practice, those cases make up perhaps 5% of the cases that they handle.</p>\n",
"score": 1
}
] |
[
"canada",
"civil-law",
"legal-fees"
] |
Are arbitration agreements subject to a 6 year statute of limitations in NJ?
| 0 |
https://law.stackexchange.com/questions/88148/are-arbitration-agreements-subject-to-a-6-year-statute-of-limitations-in-nj
|
CC BY-SA 4.0
|
<p>Generally, breach of contract in New Jersey must be filed within six years of the date the cause of action accrues.</p>
<p>Does this apply to enforcement of arbitration agreements?</p>
| 88,148 |
[
{
"answer_id": 88156,
"body": "<blockquote>\n<p>Are arbitration agreements subject to a 6 year statute of limitations in NJ?</p>\n</blockquote>\n<p>Yes. Remember the precedents from NJ that <a href=\"https://law.stackexchange.com/a/86807/18505\">I cited in response to one of your recent posts</a>:</p>\n<blockquote>\n<p>a state may not "<em>subject an arbitration agreement to more burdensome requirements than those governing the formation of other contracts</em>"</p>\n</blockquote>\n<p>This implies that the statute of limitations for arbitration agreements is the same as for contracts in general. If it were otherwise, that departure would constitute a greater burden on whichever party happens to oppose the enforcement of the arbitration agreement.</p>\n",
"score": 3
}
] |
[
"united-states",
"contract-law",
"new-jersey",
"arbitration",
"statute-of-limitations"
] |
Why can’t claims under s214 Housing Act 2004 be issued in the small claims track?
| 0 |
https://law.stackexchange.com/questions/88140/why-can-t-claims-under-s214-housing-act-2004-be-issued-in-the-small-claims-track
|
CC BY-SA 4.0
|
<p>Accordingly myriad materials online including as authoritative as Shelter, <a href="https://www.legislation.gov.uk/ukpga/2004/34/section/214?timeline=false" rel="nofollow noreferrer">section 214</a> claims must be brought under the Part 8 procedure, even where the maximum possible award would fall well within the threshold for the small claims track. What is the purpose of the Part 8 claim procedure, and why must s214 claims use it?</p>
| 88,140 |
[
{
"answer_id": 88152,
"body": "<ul>\n<li>Why use Part 8?</li>\n</ul>\n<p>Because the Civil Procedure Rules say so.</p>\n<p>See <a href=\"https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part56/pd_part56#IDANMC2\" rel=\"nofollow noreferrer\">Practice Direction 56.2(2.1)</a>:</p>\n<blockquote>\n<p>...the claimant in a <strong>landlord and tenant claim must use the Part 8</strong> procedure as modified by Part 56 and this practice direction.</p>\n</blockquote>\n<p>And <a href=\"https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part56#56.1\" rel=\"nofollow noreferrer\">Rule 56.1(1)(f)</a>:</p>\n<blockquote>\n<p>(1) In this Section of this Part ‘<strong>landlord and tenant claim</strong> means a claim under –</p>\n<p>...</p>\n<p>(f) section 214 of the Housing Act 2004.</p>\n</blockquote>\n<ul>\n<li>What is its purpose?</li>\n</ul>\n<p>Shelter's <a href=\"https://england.shelter.org.uk/professional_resources/legal/court_action_and_complaints/court_process_and_hearings/process_and_rules_for_taking_a_case_to_court#title-6\" rel=\"nofollow noreferrer\">handy guide</a> offers this:</p>\n<blockquote>\n<p>The Part 8 procedure is used where a rule or practice direction requires or permits it [<em>see above</em>], or where the claimant seeks the court's decision on a question that is unlikely to involve a substantial dispute of fact.</p>\n</blockquote>\n",
"score": 3
}
] |
[
"england-and-wales",
"civil-law",
"tenant",
"civil-procedure",
"small-claims-court"
] |
Top 100 Charts copyright
| 2 |
https://law.stackexchange.com/questions/5349/top-100-charts-copyright
|
CC BY-SA 3.0
|
<p>Am I breaking copyright if use the Billboard Hot 100 chart on my own website but in a different format and adding data, I created, to it.</p>
<p>On the website I am displaying this modified chart and letting users interact with it.
The interaction is a form of gamification.</p>
<p>I have read this <a href="http://www.lib.umich.edu/copyright-office-mpublishing/copyrightability-charts-tables-and-graphs#sdfootnote4anc" rel="nofollow">article</a> which says: </p>
<blockquote>
<p>Charts, graphs, and tables are not subject to copyright protection
because they do not meet the first requirement for copyright
protection, that is, they are not “original works of authorship,”
under the definitions in the Act.</p>
</blockquote>
<p>The state of law seems really muddy on this topic and I would be grateful for some clarification.</p>
<p><strong>Further clarification</strong> - what I am using is:</p>
<ol>
<li>The list of songs for that week's billboard chart. So only the names of the songs, without particular ordering.</li>
<li>The facts whether the song has risen or fallen compared to the previous week.</li>
</ol>
| 5,349 |
[
{
"answer_id": 5358,
"body": "<p>You cannot copyright facts. The number of records sold in a week is a fact.</p>\n",
"score": 1
}
] |
[
"copyright",
"internet",
"intellectual-property"
] |
Strict liabilty
| 4 |
https://law.stackexchange.com/questions/51599/strict-liabilty
|
CC BY-SA 4.0
|
<p>In a Civil Law legal system there is a distinction made.</p>
<p>Proper Strict Liability which is plainly Strict Liability as used in the English Language (guiltless liability/ liability regardless of guilt simply because damages occured).</p>
<p>And improper Strict Liability in which guilt is required but the burden of proof is reversed. e.g. The consumer is in a weaker position to prove and bargain so the merchant is usually required to prove that they did nothing wrong (they abode by the law). Which is entirely unproblematic given the relative positions of the parties.</p>
<p>How is Proper Strict Liability in accordance with Necessity, Proportionality and Human Value?</p>
<p>I am not allowed to seek the conformance with law of the general public when trying a specific person (otherwise I would be using them, as a means for the general good) while that person is free of guilt which renders the whole liability unnecessary for them personally (no matter what sanction they expected the damages would occur nonetheless).</p>
| 51,599 |
[
{
"answer_id": 73808,
"body": "<p>Strict liability in tort (for money damages in a lawsuit) is generally imposed when there are good reasons for someone to be responsible notwithstanding a lack of personal fault (and sometimes there are "back door" fault aspects).</p>\n<p>Some of the common categories in the U.S. are:</p>\n<ol>\n<li><p>Strict liability of an employer or principal for acts of an employee or agent, or by one general partner for another one, or of an insurer or surety for someone insured or guaranteed.</p>\n</li>\n<li><p>Strict liability for a defective product. Defectiveness is also a "back door" form of fault, even though it is not evaluated by the usual negligence standard in which there is no liability for mistakes that a reasonable person could make.</p>\n</li>\n<li><p>Strict liability for harm caused by an ultra-hazardous activity. The inference is that a reasonable person wouldn't engage in ultra-hazardous activities at all.</p>\n</li>\n<li><p>Strict liability is imposed for breaches of contract.</p>\n</li>\n</ol>\n<p>Generally the common theme is that someone subject to liability consciously assumed a risk of liability in advance of an incident, and often has some control or influence over the events that could conceivably cause harm.</p>\n<p>Strict liability is not constitutionally required or prohibited. Whether it is imposed is a matter for non-constitutional legislation and for judicial interpretation of the law.</p>\n",
"score": 2
},
{
"answer_id": 73796,
"body": "<p>As I understand it you are asking about the theoretical justification for strict liability in tort - for example the liability of a manufacturer to a consumer for damage and/or personal injury caused by defects in their product.</p>\n<p>Generally the justification for this is that:</p>\n<p>a.) The defendant is in business - i.e. it is not an imposition on citizens in general: you have to decide to start a business and you know that strict liability will be a consequence.</p>\n<p>b.) Either indemnity insurance is compulsory or it is at least usual and readily available - so that it is not actually the defendant who pays but their insurance company</p>\n",
"score": 1
}
] |
[
"liability",
"civil-law",
"tort",
"legal-concepts",
"civil-legal-system"
] |
How are government actions held accountable to constitutional promises?
| -6 |
https://law.stackexchange.com/questions/82187/how-are-government-actions-held-accountable-to-constitutional-promises
|
CC BY-SA 4.0
|
<p>For instance, in the U.S., prosecution while promising the blessings of liberty constitutionally should determine rights through a precedence of innocence rather than protected classes, plea deals, sworn testimony, guilt by association, and closed source licensures in the exclusionary U.S. Patent and Trademark Office.</p>
<p>Further, take political slogans for example the right to try and exclusion, or the stove bans for if the consumer cannot build it, you must ban it. Are they valid in existing commercial, trade, or justice department law?</p>
| 82,187 |
[
{
"answer_id": 82188,
"body": "<p>Generally speaking the "blessings of liberty" phrase from the preamble to the US Constitution is not relied on for anything. It does not grant additional power to Congress or the Federal government as a whole, neither does it restrict the Federal government beyond the restrictions already included in the body of the Constitution.</p>\n<p>Congress often accepts hearsay when it takes testimony before a committee. Such testimony need not comply with the rules of evidence that apply in court.</p>\n<p>I am not clear what you mean by "to pretext privacy and the right to try", please clarify this. I am not aware of any "right to try" under the Federal or State governments. The word "pretext" is not usually used as a verb in this way.</p>\n<p><strong>Edit</strong></p>\n<p>The link on "right to try" goes to a Quora question about laws passed by Congress later being held to be unconstitutional. That does happen. but I have never herd it called "the right to try". The link on "pretext" goes to a security.se question about a "convict internet". I don't see what that has to to with the preamble to the Constitution.</p>\n<p><strong>2nd Edit</strong></p>\n<p>The "blessings of liberty" phrase from the preamble has nothing to do with laws against discrimination, neither authorizing nor restricting such laws.</p>\n",
"score": 3
}
] |
[
"constitutional-law",
"discrimination",
"damages",
"drugs",
"antitrust-law"
] |
Does a contract become null and void if some or most of its terms were not followed by one (or both) of the parties?
| 0 |
https://law.stackexchange.com/questions/88139/does-a-contract-become-null-and-void-if-some-or-most-of-its-terms-were-not-follo
|
CC BY-SA 4.0
|
<p>If two parties sign an agreement and one party can prove that the other party did not demand that the terms be enforced when it could have, can the other party argue that the entire contract is void and unenforceable because the parties never intended to enforce it in the first place or due to waiver?</p>
<p>For example, an employee was initially hired for a one year term at $50 an hour after which the employee transitioned to an at will employee. The employee continues working for the company for several years. After a few years the company renews the employees contract for 8 more years at $75 an hour but continues to pay the employee $50 an hour and the employee never demands the higher salary. Let's further assume that the second contract contains several other benefits for the employee but the employee continues to act <em>as if</em> the first contract is in force. For example, the first contract did not provide dental insurance, the second one did and the employee never demanded dental insurance.</p>
<p>Suppose the second contract contains certain provisions that the employee wishes to enforce during his 7th or 8th year of employment.</p>
<p>Can the employer argue that the <strong>entire contract</strong> is null and void since the employee never enforced the other provisions of the contract? Can the employer argue that the employee "waived his right" to the second contract by not enforcing it and acting <em>as if</em> it never existed?</p>
<p>Are there any case precedents that can be applied to prove either way?</p>
| 88,139 |
[
{
"answer_id": 88142,
"body": "<blockquote>\n<p>Does a contract become null and void if some or most of its terms were not followed by one (or both) of the parties?</p>\n</blockquote>\n<p>No. Parties' temporary or systematic waiver of their contractual rights does not alter the validity or terms of that contract. Parties entitled to resume enforcement of their rights anytime. A party's noncompliance with his obligations gives the counterparty a viable claim of <em>breach of contract</em>, although the proper approach would be to first try to solve the dispute outside the court.</p>\n<p>In the employment scenario you describe, the employee is entitled to --at least-- back pay as per the second contract (the difference between $75 and $50) subject to the <em>statute of limitations</em>, which under NJ is six years for contract disputes. See <a href=\"https://www.leagle.com/decision/innjco20221215338\" rel=\"nofollow noreferrer\"><em>Hagans v. Nickerson</em>, Superior Court of NJ (Oct. 2022)</a>, (citing NJSA A:14-1(a)). This precludes the recovery of some of the back pay if "<em>the employee wishes to enforce during his 7th or 8th year of employment</em>". A "retroactive" enforcement of other rights might be available, depending on the nature of those rights and other details. But nothing prevents the employee to henceforth enforce all of his rights pursuant to the current contract.</p>\n<blockquote>\n<p>Can the employer argue that the employee "waived his right" to the second contract by not enforcing it and acting as if it never existed?</p>\n</blockquote>\n<p>As explained above, no. Nor does it make sense for the employer to argue in terms of "a right to the second contract". A contract establishes a set of rights [and obligations], whence "a right to a set of rights" would reflect the employer's poor understanding of the ramifications of the contract he signed.</p>\n",
"score": 4
},
{
"answer_id": 88144,
"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>No, a pattern of non-enforcement does not create a legal barrier to enforcing the contractual right.</p>\n<p>See <a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/4792/1/document.do\" rel=\"nofollow noreferrer\"><em>John Burrows Ltd. v. Subsurface Surveys Ltd</em>, [1968] S.C.R. 607</a>. The creditor loaned some money to a debtor and the parties agreed to a repayment schedule. The debtor did not insist on enforcing this: eleven payments had been accepted more than ten days after they were due and the creditor did not invoke the <a href=\"https://en.wikipedia.org/wiki/Acceleration_(law)\" rel=\"nofollow noreferrer\">acceleration clause</a>. The question was whether these indulgences gave rise to "the defence of equitable estoppel or estoppel by representation."</p>\n<p>The answer was: no.</p>\n<blockquote>\n<p>It seems clear to me that this type of equitable defence cannot be invoked unless there is some evidence that one of the parties entered into a course of negotiation which had the effect of leading the other to suppose that the strict rights under the contract would not be enforced, and I think that this implies that there must be evidence from which it can be inferred that the first party intended that the legal relations created by the contract would be altered as a result of the negotiations.</p>\n<p>...</p>\n<p>the behaviour of Mr. Burrows is much more consistent with his having granted friendly indulgences to an old associate while retaining his right to insist on the letter of the obligation...</p>\n</blockquote>\n",
"score": 2
}
] |
[
"united-states",
"contract-law",
"civil-law",
"new-jersey"
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.