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law-stackexchange-questions-answers.json

law-stackexchange-qa-22860

What constitutes "doing business in a jurisdiction?"

In order to be sued in a particular jurisdiction, say New York, a company must have a minimal business presence in the jurisdiction. What constitutes such a presence? Suppose the company engaged a New York-based Plaintiff, and its representatives signed the contract with the Plaintiff in New York City. Does this satisfy the minimum presence rule? Suppose, instead, the plaintiff and contract signing were in New Jersey, but the company hired a law firm with offices in New York City. Does this qualify?

Historically, the threshold for "doing business" for purposes of jurisdiction was been very low. Any regular office or building used for the transaction of business would quality as would any work "directly" particularly at a state (e.g. if you did architectural work for a factory in Mississippi from your offices in Alaska, you would be "doing business" in Mississippi). Also, participation in a trade show would normally constitute "doing business" for a transaction arising out of the trade show. A string of recent U.S. Supreme Court cases have tended to interpret this phrase more narrowly, but so long as a lawsuit has a nexus with the instance of "doing business" in a state that is in question in the lawsuit, the definition isn't that much different for most purposes. A subsidiary or affiliate company's operations in a state will ordinarily not constitute doing business in a state on behalf of the parent company under recent U.S. Supreme Court precedents. Suppose the company engaged a New York-based Plaintiff, and its representatives signed the contract with the Plaintiff in New York City. Does this satisfy the minimum presence rule? Yes. Suppose, instead, the plaintiff and contract signing were in New Jersey, but the company hired a law firm with offices in New York City. Does this qualify? This could depend upon the subject matter of the contract and where the negotiations took place.

jurisdiction,new-york-state

law-stackexchange-questions-answers.json

law-stackexchange-qa-80526

What are the constraints on a civil suit (witnesses, evidence, topics) - and are they public

I am currently watching the Depp/Heard trial, and there seems to be a lot of stuff that cannot be shown, or said, and a lot of people i would expect to make a statement are absent. My guess is that there are rulings in place that preclude certain witnesses from being called, certain evidence from being shown, and certain topics from being broached - but how, and why? And are those constraints known to the jury? For instance, there was a last minute witness that somehow offered herself up to testify, a very crucial character witness, that i would have thought the plaintiff would spare no expense in finding. There was a photo expert that was somehow prevented from talking about colors, there is a lot of confusion about the existence or non-existence of a wall mounted phone, but both parties have refrained from showing images of the wall that the phone should have hung on - although the existence of such photos is a near certainty, etc. So my questions: How are such no-show-no-tell boundaries established, does the jury get to know them, and is this also in the public record somehow?

How are such no-show-no-tell boundaries established They largely stem from the rules of evidence which are complicated, vary from state to state and knowing which is a big part of what litigation attorneys are paid for. Parties to litigation become aware of all the evidence/topics that their counterparts wish to broach in the courtroom well in advance — during discovery. They will usually disagree whether some bits and pieces can be presented to the jury. In this case the court will hold admissibility hearings — again, well in advance before the trial. Despite all the preparations, some of these disagreements arise during the trial, and then they are resolved in place by way of voiced objections. The attorneys and the judge talk about them using professional jargon of the rules of evidence — having themselves seen all the evidence in advance. does the jury get to know them No, the jury doesn't need to follow the professional talk. In fact, they should hear as little as possible of it — which is the reason why admissibility disagreements are resolved in advance as much as possible. If serious issues arise during the trial, the judge will ask the attorneys to speak to them in chambers — away from the jury. Or they will ask the jury to take a break while the professionals talk. The jury just needs to listen to the evidence that is allowed in, and disregard any evidence the judge say they have to. is this also in the public record somehow? It is in the court record. It may be accessible to the public if the court allows. If someone wishes to see the record they need to apply to the court, provide reasons and a judge will decide if anything can be released.

civil-procedure,jury,rules-of-evidence,united-states,witnesses

law-stackexchange-questions-answers.json

law-stackexchange-qa-41566

Are there any legal restrictions to practicing law over video conference like there is with medicine?

For example in medicine, you have requirements in many states for what constitutes a valid patient / client relationship and that this requires some in-person visits etc. does something exist like this in the legal profession?

I don't know of any regulations specific to the practice of law online. A lawyer practicing online is going to practice under all the same restrictions as a lawyer practicing face-to-face. In the United States, that's typically going to mean some variation on the ABA's Model Rules of Professional Responsibility. In particular, practicing online could raise issues of unauthorized practice of law, if you're somehow communicating with clients who are out of state about matters arising in a state in which you are not licensed to practice. As for establishing a lawyer-client relationship, I don't know of any jurisdiction that imposes a face-to-face requirement. All that a lawyer needs to have a client is an agreement to provide legal services to that client; this agreement might be reached in a formal writing, orally, by phone, by text, or any other medium.

civil-law,unlicensed-practice

law-stackexchange-questions-answers.json

law-stackexchange-qa-206

What resources are available to a pro se litigant?

Suppose I am not a professional lawyer but I have standing and want to bring a case to court pro se. To make this widely applicable and more readily answerable: Suppose I want to file a 42 USC 1983 complaint in U.S. federal court for some violation of my fourth-amendment rights by a municipal police officer. I believe the first thing I would want to do is find and read similar cases that have been adjudicated on that law using similar claims in my district. In fact, if I'm reasonably literate I assume I could construct all necessary filings and arguments using examples from prior cases, in addition to getting a sense of my odds of success in court. But a person who is not a professional lawyer typically lacks ready access to Lexis, WestLaw, and other such professional resources for researching recent and applicable case law. (Let us assume that the Bar does not exist in principle as a barrier to citizens seeking redress of grievances through the judicial system. I.e., "That's what lawyers are for, so pay up if you want justice" may be the practical answer. But I want to know how practical it is for one to seek justice pro se.) How can a pro se litigant to find applicable case law and bootstrap his way through the judicial process?

As a pro se litigant, you have the same power as an attorney to prepare your case. What is that power? Subpoena power. That is the power to compel witnesses to appear and give testimony. Along with subpoena power, you have the power given by the rules of discovery, to conduct discovery, send interrogatories (written questions to the opponent and non-parties), requests for admission (requests that opponents and non-parties admit or deny statements of fact), requests for production (of tangible documents and things) and to take depositions (recorded testimony). Those tools (powers) are available to you just as if you were a lawyer. Out of that body of information, you develop your proof to support your claim at trial. Those relevant facts that tend to prove your theory of the case and disprove the other sides. The primary problem a pro se litigant faces compared to a lawyer is knowing how to exercise that power, knowing what questions to ask, and knowing what facts are likely to be persuasive on the ultimate issues at trial. It's having the power, but due to lack of experience, not utilizing it effectively that is usually the biggest hurdle for pro se litigants to overcome.

litigation,pro-se,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-38787

Would "ex post facto" apply to tax deduction laws?

Yesterday I had a discussion with my colleague. This year I am traveling rather large distances for work. My colleague asked me how I can bear the costs of travel. I told her it is ok, because the government allows me to deduct a large part of my travel costs from my taxes. My colleague warned me that she has heard that the government will revoke these rules, making it no longer possible to deduct as much of my travel costs from my taxes. Her argument was that since my taxes for 2019 will be done in april of 2020, the government could, at any point before that date, change the rules so that I may no longer be able to deduct my travel expenses. I argued that rules could only apply to travels/work that occurred after said rules were implemented, and could not apply retroactively. Norway has an "ex post facto" clause in its constitution against retroactive laws. Is my reasoning correct?

Article 75 says that It devolves upon the Storting: (a) to enact and repeal laws; to impose taxes, dues, customs and other public charges, which shall not, however, remain operative beyond 31 December of the succeeding year, unless they are expressly renewed by a new Storting Article 97 says that "No law must be given retroactive effect" . The combined effect of these provisions is that any changes in the law effected this year could apply to tax years after 2020 but not including 2019. So the law as written supports your understanding. Skatteetatten seems to agree since the rules are listed as covering 2019.

constitutional-law,ex-post-facto,norway,tax-law

law-stackexchange-questions-answers.json

law-stackexchange-qa-4874

What is the justification for curfew laws?

It's Halloween, and some municipalities are creating curfew laws intended to prevent people under 18 from being in public during the late night hours, for example South Brunswick, NJ. It seems like this apparently common sort of ordinance could be considered unconstitutional on multiple grounds, in that it is restricting free movement as well as targeting only a specific demographic. Here is the actual text of one such ordinance. So here are my questions: Are this and similar ordinances constitutionally valid? What defenses could a government make if challenged? Further, based on precedent, would they likely be successful?

1. Are this and similar ordinances constitutionally valid? Yes. Some future court might decide the law is invalid at some future time. But that possibility is hypothetical and speculative. Therefore, as of now, the law is valid unless and until it is challenged and overturned. 2. What defenses could a government make if challenged? It depends on what grounds the law is challenged. Your question about possible defenses is highly dependent on the nature of any challenge — which you have not specified in your question. The U.S. Constitution, for example, prohibits laws respecting a number of things such as freedom of the press, speech, religion, peaceful assembly, bearing arms, etc. to list just a few of the most notable ones. But your question does not assert the law in question violates any specific or particular prohibition against it. Although the question mentions "restricting free movement as well as targeting only a specific demographic," it does not specify any part of any constitution that prohibits these things. Therefore, your question is unclear as to what might present a constitutional problem for the law. It is also unclear which constitution you think might contain prohibitive language. Is it a federal constitutional issue that concerns you? Or is it a state constitutional matter? In either case, which issue specifically concerns you? Your question needs to address these specifics in order to analyze it and respond in a meaningful way. Look at it like this... just as it is impossible to prove a negative, so is it impossible for anyone to conclude with absolute certainty that any law is not unconstitutional because no one can predict with certainty every possible future challenge a law might face. There are just too many possibilities to (pre-emptively) exhaust them all with certainty. Also, no one can predict with certainty how any future court might rule on the future challenges (which themselves are unpredictable as previously argued). Therefore, one can only say I think the law is unconstitutional and here are my reasons. Then others can analyze the law and the reasons; then offer an opinion. Further, based on precedent, would they likely be successful? See above answer to question numbered 2. Laws aren't required to be "justified" by the constitution. Constitutional justification for a law is a meaningless phrase. There is no requirement for a law to be "justified" by any constitution other than that the legislature is empowered by the constitution to make laws. That's all the justification any law needs. Beyond that, however, no law can violate the constitution as determined by a Supreme Court (or the last court to rule) if challenged.

constitutional-law,local-ordinance,minor,us-constitution

law-stackexchange-questions-answers.json

law-stackexchange-qa-4751

If a tenant buys the house they were renting, does the landlord have to refund the security deposit to them?

If a tenant buys the house they were renting, does the landlord have to refund the security deposit to them? Alice is renting a house from Bob on a six-month lease. She then enters an agreement to purchase the house. At closing is Bob responsible to pay back her security deposit? I am in Oregon and could not find the answer easily. I would assume this is a basic, common-sense "yes", but I'd like to know the statutory basis, if possible. Thanks.

There are 2 distinct contracts here - the rental agreement and the sale agreement. They are independent and, absent specific clauses, do not affect each other at all. Consider what would happen if Bob was selling to Charles instead of Alice. The rental agreement ends when the sale agreement takes effect; if this is a normal situation then when the rental agreement ends the security deposit will be refunded subject to any legitimate deductions.

united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-90951

Are coworking companies bound by legal precedent not to use the intellectual property nor trade secrets of its customers?

The companies which operate coworking facilities are in a position to learn a lot about a person's business. Every facility I've seen is blanketed with cameras, potentially including microphones, the internet connection is provided and monitored by them, and their staff greets every visitor for a meeting. I've reviewed the contracts from a few of these companies and was surprised to discover they do not explicitly state they will limit their use of information they learn about their customers' businesses merely to the realm of providing the service to the customers. One would expect at least a simple and clear statement that customer trade secrets and intellectual property will not be used by nor shared by the coworking company. But no such statement is provided. Is there something I am not understanding here? For example, is there overarching legal precedent (which wouldn't be included in the contract) that protects a small business if they use one of these facilities? To be clear, I am not talking about protections from other users of the coworking facility. I am talking about protection from the owner of the coworking facility itself and its employees.

There are several kinds of intellectual property and related rights that could be implicated by coworking considerations. This answer provides answers where it is clear and leaves open the legal issues where I don't know the answer. Trademarks and Trade Names. A coworking company might not infringe your trademark if used merely to identify the trademarks of its tenants (e.g. for marketing purposes to show the businesses that use its services), but could not market products using your trademark. Certainly, a coworking company could refer to its tenant by their trade names but could not purport to be the owner of those trade names. Copyrights. A coworking company does not gain any rights in your copyrighted material merely by providing office space for them. Merely letting someone see copyrighted material does not provide a license to copy or republish it, any more than someone reading your book purchased at a book store has a right to copy or republish the book. Trade secrets. A trade secret gains its legal force by the trade secret owner taking reasonable measures to keep it secret, such as putting non-disclosure agreements in place with people who you allow to see it and keeping it protected with locks, closed doors, passwords, and encryption. What is sufficient to make efforts to keep a trade secret secret is a fact specific case by case inquiry. Generally speaking, if one leaves trade secret information in plain view in a coworking space, one would lose trade secret protection for that trade secret, unless there was an express non-disclosure agreement with the coworking facility and all of the other users of the space who could see the trade secret material. Patents Once a patent is obtained, it doesn't matter who can see the patent which is a matter of public record anyway, so the coworking company gets no rights at that point. But, when someone is developing an idea that you would like to patent, disclosure of the patented idea in a sufficiently public way could make the idea part of "prior art" that prohibits anyone from patenting it, and if someone else patents the idea using insight from someone else without using illicit means, they will often get the patent in a first to file system (which is predominant, if not universal, in world patent systems now). I'm not enough of a patent law expert to spell out the boundaries of what could cause your idea to become prior art or permit a coworkering firm or someone else working there to appropriate your work and patent it legally. Swiss law regarding implied duties of landlords/privacy and, if it exists, coworking, would also be pertinent and is beyond the scope of my knowledge. E.U. privacy regulations (or copycat versions of them in Switzerland) like the GDPR could be a factor as well. In the face of uncertainty, the better course of action would be "better safe than sorry." The steps necessary to preserve as a trade secret an idea that could potentially be patented is probably sufficient in most cases, but the same level of vigilance might not be necessary to preserve a patentable idea and prevent another person seeing it from appropriating it. Other Confidentiality Obligations Another related issue is that many people have legal obligations to keep certain kinds of information they obtain in the course of their occupations secret and confidential from all but certain people. These people include lawyers, medical professionals, health insurance companies, teachers and school administrators, soldiers, psychotherapists, bankers, accountants, certain kinds of civil servants dealing with certain kinds of information, social science researchers, clergy, scientists, people subject to non-disclosure agreements, and web site operators. It isn't always obvious that these confidentiality obligations can be met in a co-working environment.

intellectual-property,privacy,switzerland,trade-secret,workplace

law-stackexchange-questions-answers.json

law-stackexchange-qa-90254

Why are religious figures given the status of "legal person" in India?

In India, religious figures have been given the status of legal person, and from the case law, I've read there doesn't seem to be a clear rationale for this. Corporations and organizations are also given the status of a legal person. Does this mean that if a significant amount of people associate with something it can gain the status of a legal person? By this logic, can say fictional characters get the status of a legal person as well? and would it effect copyright law in any way ?

Overview In India, religious figures have been given the status of legal person, and from the case law, I've read there doesn't seem to be a clear rationale for this. The basic problem is how to treat property dedicated for religious purposes in a way that makes sense in the context of the religion in question, because any time property is involved in something, the secular law must be able to rule upon those property rights. There is more than one possible solution for how to handle this in cases in which a legal person is something other than a way to carry on business for profit on behalf of investors when a legal person basically has no "owners". Charitable foundations, charitable trusts, corporations sole, non-profit corporations with self-perpetuating boards, or non-profit corporations managed democratically by their members or stakeholders are all possible legal tools to handle this problem. In India, a charitable foundation model in which the charitable foundations are named after a Hindu Idol or religious figure is the way it is handled for religions other than Christianity or Islam, while something close to a corporation sole that can own property model (whose managers are appointed and may be removed by their superiors in the denomination) is used for Christian places of worship. In Muslim mosques, in contract, the succession of inherited trustees of Muslim mosques is treated as an entity separate from the Mosque itself. Indian religious institutions and charities generally have a hereditary, or at least, non-democratic, organizational model, rather than the democratic governance model of Protestant Christianity that began with the Calvinists in the Protestant Reformation. When the managers of these religious institutions are not subject to being voted out by the members of the religious institution that they serve (which is particularly unworkable when someone doesn't necessary "belong" to one or many temples where the worshipper might make a pilgrimage), the conduct of the manager of the temple needs to be regulated by law, as opposed to being regulated by being democratically selected by the members of the religious institution. The important thing is that property belong to the legal person is not just the ordinary private property of the sebait who manages it, even though the property is managed by private individuals who have authority over a Hindu temple and they pass this authority on in a manner very similar to succession to their personally owned property, in part because the temple is often effectively the family's own small business. But the legal personhood of the temple's idol or religious figure makes it clear that this is not just the private property of these private individuals to do with as they please. Instead, the private individual called a sebait who manages the affairs of this legal person and usually inherited this authority from a relative, has fiduciary-like duties to the worshippers who use the property belonging to this legal person to conduct religious activities. Thus, the sebait has a legal duty to put the worshipper's interests above the sebait's personal financial interests beyond fair compensation for the sebait's duties. If the sebait does not do so, a court can punish the sebait or take other appropriate action to redress this misconduct. Religious Legal Persons In India Outside Christianity And Islam The way this is handled is discussed at length in Saji Koduvath, Advocate, "Legal Personality of Temples, Gurudwaras, Churches and Mosques" (March 12, 2022), which I summarize and quote from below. For Hindus, Indian law has held that: The Hindu Law, like the Roman Law and those dervied from it, recognises not only incorporate bodies with rights of property vested in the Corporation apart from its individual members but also juridical persons called foundations. A Hindu who wishes to establish a religious or charitable institution may according to his law express his purpose and endow it and the ruler will give effect to the bounty or at least, protect it so far at any rate as is consistent with his own Dharma or conception or morality. A trust is not required for the purpose; the necessity of a trust in such a case is indeed a peculiarity and a modern peculiarity of the English Law. In early law a gift placed as it was expressed on the altar of God, sufficed it to convey to the Church the lands thus dedicated. It is consistent with the grants having been made to the juridical person symbolised or personified in the idol. Thus, a trust is not necessary in Hindu Law though it may be required under English Law. See Shiromani Gurudwara Prabandhak Committee Amritsar v. Shri Som Nath Dass (AIR 2000 SC 1421) citing Yogendra Nath Naskar Vs. Commissioner of Income Tax, Calcutta, 1969 (1) SCC 555 which in turn cited Manohar Ganesh Vs. Lakshmiram, ILR 12 Bom 247. Thus, while the law of India largely follows the model of the common law, in this respect, the recognition of a Hindu Idol or deceased or divine religious figure when property has been dedicated for this "pious purpose" as a legal person has the practical effect of establishing a European civil law style charitable foundation. This makes sense because the organizational structure of temples in pagan Rome, whose organizational structures were described as foundations in the Rome laws that memorialized these practices (which was then received as the law of Europe after the Middle Ages and codified in European civil codes), was similar to the traditional organizational structure of temples in Hindu India today. [T]he procedure in India takes account, necessarily, of the polytheistic and other features of the Hindu religion and recognises certain doctrines of Hindu law as essential thereto, e.g., that an idol may be the owner of property. The procedure of our Courts allows for a suit in the name of an idol or deity though the right of suit is really in the sebait [Jagadindranath v. Hemmta Kumari [L.R. 31 I.A. 203: s.c. 8 C.W.N. 609 (1605).] See The Mosque, Masjid Shahid Ganj v Shiromani Gurdwara Parbandhak Committee, Amritsar AIR 1940 PC 116. The organizational structure of a Hindu temple is similar to that of a Shinto shrine in Japan. Management of it is ordinarily vested in a priestly family established in that role by the temple's founder the religious leader of which is called the sebait, and this role is passed down in a manner similar to the inheritance of property except that it may not be divided to multiple heirs in most cases. The sebait, like the trustee of a charitable trust, or a director of a charitable foundation, is duty bound to act in furtherance of the temple's purpose and may be subject to secular court sanctions if this role is abused. Effectively, the Hindu Idol or Gurdwaras that is treated as a legal person is simply the name of the charitable foundation created in this manner as a matter of style. But, even though, for example, some Hindu Idols are legal persons, this is basically a metaphor. an Idol as a juridical person is the ‘ideal embodiment’ of a pious or benevolent idea. See M. Siddiq (D) v. Mahant Suresh Das (2020-1 SCC 1) citing Manohar Ganesh Tambekar Vs. Lakhmiram (1887), ILR (1888) 12 Bom 247. Thus, the physical idol itself is not the real legal person, the real legal person is the charitable foundation named after the physical idol which the idol represents. In the case of Hindu idols, legal personality is not conferred on the idol simpliciter but on the underlying pious purpose of the continued worship of the deity as incarnated in the idol. Where the legal personality is conferred on the purpose of a deity’s continued worship, moving or destroying the idol does not affect its legal personality. See M. Siddiq (D) v. Mahant Suresh Das (2020-1 SCC 1). Who are the beneficiaries of these charitable foundations? the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers See M. Siddiq (D) v. Mahant Suresh Das (Ayodhya case: 2020-1 SCC 1) citing Deoki Nandan Vs. Murlidhar (1957): AIR 1957 SC 133. Legal Personhood v. Charitable Trusts The treatment of these arrangements as legal persons rather than as charitable trusts, as the English common law would be inclined to do, does have solid reasoning behind it. This distinction really just cures the defects associated with trusts and estates in English law, which are basically "proto-corporations". In English law, in some technical respects, trusts are treated as legal obligations of a human being who is the current trustee, rather than as an entity. English law does this even though the modern concept of a trust is really closer to an entity than to a private individual who has legal obligations. The reason English law has this rather muddy and mixed non-entity concepts embedded in its trust law is that the concept of a legal person was not well developed when the English developed their law of trusts. Modern corporations are a later outgrowth of concepts originally but incompletely developed in the context of English trust law. Treating a Hindu temple as a legal person named after its idol or religious figure for legal purposes strips away the vestigial and dysfunctional non-entity concepts found in English trust law. Christian and Muslim Places Of Worship Compared Notably, the law of India does not treat Christian churches or Muslim mosques in the same way. Christian Church Ownership In India Christian churches are usually, unless the church forms a charitable trust or other organizational structure, treated as a corporation sole, which is basically a non-profit corporation, but with its governance vested in eternal succession in whomever holds a particular position (e.g. Archbishop of Delhi) within the Christian denomination that established or acquired the church. Thus, the physical building that is the church itself is merely one more piece of property owned by the corporation sole which is governed by the general law that applies to property owned by corporations. See Daisy AP v. Bishop Dr. Thomas Mar Koorilose, 2015-5 KHC 914; 2016-1 KLT 268. To some extent this position was adopted because this is the way that Roman Catholic and Anglican Canon law characterized the situation. Canon law did so in these large Christian denominations because in these faiths, churches are not effectively "family businesses" governed by a priestly family that passes on that duty from generation to generation. Instead, in these Christian denominations, the entire denomination is one big bureaucracy whose managers are appointed and removed at will by their superiors in the bureaucracy. Put another way, Hindu temples and Mosques (discussed below) are basically independent small firms, while Christian churches are basically wholly owned subsidiaries of the denomination that they serve. Muslim Mosque Ownership In India Likewise, Indian law does not take this position with respect to Muslim Mosques. See Mohamed Shafindeen Vs. Chatur Bhaj (1958), 1958 Raj. LW 461, and M. Siddiq v. Mahant Suresh Das (2020-1 SCC 1) overruling the Mosque Masjid Shahid Ganj Vs. Shiromani Gurdwara Parbandhak Committee, Amritsar, AIR 1940 P C 116 in which it had held following decisions from Punjab that Mosques were legal persons. In reaching that decision in the year 2020, the highest court in India observed in M. Siddiq v. Mahant Suresh Das (2020-1 SCC 1) that: The decisions recognising a mosque as a ‘juristic person’ appear to be confined to the Punjab : 153 PR 1884; Shankar Das v. Said Ahmad (1884) 153 PR 1884 59 PR 1914; Maula Bux v. Hafizuddin (1926) 13 AIR Lah 372: AIR 1926 Lah 372. This is despite the fact that the way the Mosque in the 1940 case was established (and for what it is worth, the typical way that a Mosque is established in Islam more generally), is very similar to the way that a Hindu temple or Shinto shrine or Greek family church is established. The court in the same case, M. Siddiq v. Mahant Suresh Das (2020-1 SCC 1), noted that: In that case, a mosque was dedicated in 1722 by one Falak Beg Khan. By the deed of dedication, Sheikh Din Mohammad and his descendants were appointed as Mutawallis. Since 1762, however, the building together with the court-yard, well and adjacent land, was in the occupation and possession of the Sikhs. The land adjacent to the mosque became the site of a Sikh shrine. At the time of the annexation by the British in 1849, the Sikhs were in possession of both the mosque and the adjacent lands[.] By essentially treating a Mutawalli as the director of a non-profit corporation that owns the Mosque, rather than treating the Mosque itself as a charitable foundation that is itself a legal person, India's highest court did two things. First, it appeased the theological concern that within Islam and Islamic law, that all Muslims are in theory a common people under the same god and undivided by sect: A Mosque does not belong to any particular sect; for once it is built and consecrated, any reservation for people of a particular locality or sect is void, and persons not belonging to that locality or sect are entitled to worship in it, whether or not any particular sect had contributed towards the site or the building of the Mosque and had been saying their prayers in it and every person who believes in the unity of God and the mission of Mahammad as a prophet is a Mussalman, to whatever sect he may belong, and that the Shias satisfy the test; and that there is no such thing as a Sunni or a Shia Mosque though the majority of the worshippers at any particular Mosque may belong to one or other sect either generally or at various times” See Mahmood Hussain Vs. State Of UP 2018-10 ADJ 249; 2018-128 All LR 71 citing A. Ghosh, "Law of Endowments (Hindu and Mohammedan)". Second, and more importantly, the courts of India changed course in the face of a de facto organizational structure for Mosques which is almost identical to the organizational structure of Hindu temples, because it made it easier to resolve disputes between an Islamic sect with long time de facto control of the Mosque and the Islamic sect that founded the mosque. Its refusal to treat the Mosque itself as a legal person allowed it to resolve the dispute between two Islamic sects with a claim to the Mosque under the secular property law principle of adverse possession that also applies to ordinary privately owned land. The court knew in making this ruling that disputes between members of a sect that founded a mosque and a sect that currently controls a mosque is a problem that is likely to recur going forward. The method of resolution that its ruling on legal personhood status for Mosques allows (which favors the de facto status quo) does so in a way that allowed the courts to extricate themselves from the underlying dispute over which Islamic sect is more worthy to control the building dedicated as a Mosque. It also does so without doing much to upset the status quo. In this analysis, the original non-profit entity established by the founder under the control of a succession of members of the family entrusted with the mosque originally still exists, but it has lost control of the building itself that it was founded to manage by adverse possession. A court in India exprssed this position by stating that: A gift can be made to a madrasah in like manner as to a masjid. The right of suit by the Mutawali or other manager or by any person entitled to a benefit (whether individually or as a member of the public or merely in common with certain other persons) seems hitherto to have been found sufficient for the purpose of maintaining Mahomedan endowments. At best the institution is but a caput mortum, and some human agency is always required to take delivery of property and to apply it to the intended purposes. Their Lordships, with all respect to the High Court of Lahore, must not be taken as deciding that a ‘juristic personality’ may be extended for any purpose to Muslim institutions generally or to mosques in particular. See Masjid Shahid Ganj Vs. Shiromani Gurdwara Parbandhak Committee, Amritsar, AIR 1940 PC 116. Follow Up Questions Does this mean that if a significant amount of people associate with something it can gain the status of a legal person? This means that if property is dedicated to a non-Abrahamic religious purpose in India, that the management of that property is handled as if the Idol or religious figure is the name of a charitable foundation managed by its sebait for the benefit of the worships who use the temple, all of which is well defined within the context of Hinduism and other South Asian religions. By this logic, can say fictional characters get the status of a legal person as well? Generally not, as people generally don't dedicate property to the worship of a fictional character. But, one could imagine, for example, someone dedicating a "Jedi Temple" and establishing a means of selecting a sebait to manage it being treated as a legal person in India, which is to say, that it is treated as basically a bare bones charitable foundation. Would it effect copyright law in any way? If a work were prepare as a "work for hire" for the charitable foundation named after a Hindu Idol or religious figure, that legal person could have the same rights in the work prepared in that way that a corporation which commissioned the same work could. Afterword It is worth observing that this decision of the English Privy Council reflects the general tendency of England as a colonial power, to care little about consistency between how issues are resolved from one colony to the other, or in this case, between one religious faith and another, instead focusing on the practical implications of their decisions on a case by case basis. It is also worth noting that while legal personhood is a concept that many people find troubling, despite the fact that, in practice, it is a good practical solution and no big deal. Legal personhood is simply the way that the law fixes responsibility for the conduct on a collective activity that may outlive someone originally associated with that activity, allows the people associated with that collective activity a mechanism to legally vindicate harms to the enterprise that might otherwise be hard to localize to any one natural person that benefits from that activity, and allocates authority over the property dedicated to that collective activity. Contrary to conventional wisdom, recognizing a legal personality usually makes it easier to sue when the actions of a collective activity cause harm, and of course, just because a legal person can participate in economic activity, that doesn't mean that a legal person can vote or be incarcerated in prison, or engage in other conduct reserved exclusively for natural persons.

corporate-law,india,legal-concepts,religion

law-stackexchange-questions-answers.json

law-stackexchange-qa-4717

Why was the Armenian assassin of Talat Pasha acquitted for murder?

The Armenian assassin of the ex-Ottoman Grand Vizier Talat Pasha, Soghomon Tehlirian was acquitted of murder in his trial. His defence was that he was killing Talat Pasha in retaliation for his crimes in orchestrating the Ottoman Armenian Genocide. Tehlirian was tried for murder, but was eventually acquitted by the twelve-man jury. His trial was a rather sensationalized event at the time, taking place shortly after the establishment of the Weimar Republic, with Tehlirian being represented by three German defense attorneys, including Dr. Theodor Niemeyer, professor of law at Kiel University. Priest and Armenian Genocide survivor Grigoris Balakian, German activist Johannes Lepsius, and German commander of the Ottoman armed forces during the war General Liman von Sanders were among several of the prominent individuals called as witnesses to the trial. The trial examined not only Tehlirian’s actions but also Tehlirian's conviction that Talât was the main author of the Armenian deportation and mass killings. The defense attorneys made no attempt to deny the fact that Tehlirian had killed a man, and instead focused on the influence of the Armenian Genocide on Tehlirian's mental state. Tehlirian claimed during the trial that he had been present in Erzincan in 1915 and had been deported along with his family and personally witnessed their murder. When asked by the judge if he felt any sort of guilt, Tehlirian remarked, "I do not consider myself guilty because my conscience is clear…I have killed a man. But I am not a murderer. However, murder in retaliation for crimes the victim committed is often not considered a legal defence to the act of murder. For example, this 2013 Baltimore case resulted in the sentencing of the killer to 30 years in jail. Similarly, the Lillehammer affair involves Israeli Mossad agents sent to assassinate a (mistakenly identified) mastermind of the Munich attacks on Israelis. The agents were arrested and convicted by Norwegian authorities. A final example was the case of Vitaly Kaloyev, who stabbed to death the air traffic controller responsible for the Überlingen mid-air collision in which his family was killed. He was also convicted for murder in that case and sentenced to prison. What differences in law in that time in Germany led to the acquittal of Soghomon Tehlirian for murder?

See jury-nullification. I'm not a legal historian, so I can't say for sure what the laws on jury acquittals were at that time in that jurisdiction. However, when a jury has final discretion to acquit a defendant of a crime that's it: They can effectively ignore laws if they want to acquit someone. Such acquittals do not set a precedent or have any bearing outside of the trial in which they issue their verdict.

germany,jury-nullification,legal-history,murder

law-stackexchange-questions-answers.json

law-stackexchange-qa-35897

Did citizens of New Hampshire have the ability to buy their way out of military service in WW2?

Before 1964 the New Hampshire Constitution had two articles (12 and 13) in its Bill of Rights permitting citizens to pay money in lieu of compulsory military service. In World War 2 and the Korean War did the men of New Hampshire have the ability to pay to avoid being drafted? If not, what the legal pretext used to void this right?

According to the Wikipedia article "Conscription in the United States", The Selective Service Act of 1917: ...prohibited all forms of bounties, substitutions, or purchase of exemptions. This national conscription process was not under state control, and effectively replaced the state-based quota system which had been in place during the Civil War and earlier, and which had proved generally ineffective. After this date, the New Hampshire constitutional provisions would have applied only to conscription for service in the New Hampshire State Guard (NHSG), a purely state-organized force which was not authorized for service outside the boundaries of the state. Although still legally authorized, the NHSG has not existed as an actual force since 1947, when its last armory was turned over to the National Guard. Proposals to reactivate it moere recently have not passed the legislature.

military,new-hampshire

law-stackexchange-questions-answers.json

law-stackexchange-qa-47568

Can a company restrict the period in which a contract termination can be submitted?

I live in Germany and have a yearly contract for the Adobe Creative Cloud. This contract can only be canceled 30 days before the one year period ends. They say, that a termination notice prior to those 30 days cannot be noted in their system. Are companies allowed to restrict the period in which I can submit a termination request to cancel a contract?

A clause that your termination notice wont be recognised prior to a certain date is really unusual and probably invalid. Your contract includes Allgemeine Geschäftsbedingungen (AGB, general terms and conditions). There are rules on such terms in §§ 305 ff. BGB. A company is not allowed to include certain clauses, § 309 BGB. In § 309 Nr. 13 lit. c BGB it is forbidden to prescribe "besondere Zugangsvoraussetzungen" for "Anzeigen oder Erklärungen" of the customer. The ratio is to help customers; they should not be required to look up the AGB before every notice (Wurmnest-MüKo BGB, § 309 Nr. 13 Rn. 1). To wait until a certain date is such a special condition. So the clause is forbidden and invalid.

contract-law,germany

law-stackexchange-questions-answers.json

law-stackexchange-qa-7198

How much does the President have to take the Senate's appointment "advice?"

Article II, Section 2, of the US Constitution (emphasis added) states: [The President] by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law[.] Suppose the Senate were to pass a resolution advising the President to appoint a strict "originalist" who has been a long-time member and avid supporter of the Republican Party. To what extent must the President heed this advice? Taken further, does this mean the Senate can specifically identify who an appointee shall be?

The President can nominate whomever he wants; the "advice" is formally post-nomination advice (the motion to confirm appointments is a motion "to advise and consent to" the nomination). In any event, "advice" is by definition non-binding; that's why it's not a command. However, the Senate must consent to the appointment before the officer assumes the office, so pre-nomination advice is relevant. For some nominations (like district judges), the Senators from that state can effectively sink a nomination if they're from the same party as the President and don't like the nominee; that can result in the Senators picking a short list of candidates and the President just picking someone on the list (or asking for a new list, but if he just nominates someone not on the list there's a fair chance they don't get confirmed). The Senate could decide that they will only confirm one particular person for the post. The President can nominate someone different. That's a political fight to be solved by gamesmanship and negotiation, not something that has a legal resolution.

constitutional-law,legislature,united-states,us-constitution

law-stackexchange-questions-answers.json

law-stackexchange-qa-11777

What is the origin and history of the term "grand theft auto"?

This comes from an English Language Lerner's Stack Exchange question, the current answers to which are lacking in historical/legal analysis of the term. What is the origin of the legal phrase "grand theft auto"? In particular, is there any legal or historical rationale for the ordering of the terms? (E.g. why isn't it "grand theft of auto" or "auto grand theft" or even "grand auto theft".) There are some claims that it's simply an elision of a comma ("grand theft, auto") implying that it's a simplification of something like an entry in an (alphabetized) list of crimes. Others have indicated that there might be some Law French or Latin influence in putting the descriptor last (along the lines of "courts martial"). Are either of these accurate with the historical origin of the term, or is there some other reason?

"Grand theft, auto" is specific crime in some jurisdictions. It's not a universal legal phrase. Furthermore, it is a slang expression like "Murder One." I doubt any jurisdiction has a crime of "Grand theft, auto." It might be "Grand theft, automobile." "Theft" or "larceny" is a common law crime. "Grand theft" (or "Grand Larceny") is statutory crime that usually imposes a higher penalty for the theft of a higher value item(s). Not all jurisdictions even have "grand theft." The taking of an automobile may be defined as a simple larceny or it may be defined as a separate crime of auto theft. In New Jersey (a model penal code state), automobile theft is just theft with different penalties or the separate crime of joyriding. Penal codes are normally arranged with in taxonomy structure. Typically it would like something like: Property Crimes Theft Grand Theft auto going from general to specific. In New York, there are "Theft crimes" (with robbery and larceny being types of theft).The taking of an automobile is just a larceny. However, over $1,000 in value makes it a grand larceny. The bottom line is "Grand theft, auto" is a slang term that refers to the statutory crime of grand theft where there are specific provisions for the theft of an automobile.

legal-terms,theft

law-stackexchange-questions-answers.json

law-stackexchange-qa-74635

Anticipation of Violent Gatherings

As we await the Rittenhouse verdict it is clear that this is a polarizing case and the governor has mobilized 500 National Guardsmen in anticipation of violence. The verdict is expected to attract polarized crowds that officials perceive as having a proclivity for violence / destruction. Pursuant to preventing violence: What tools are available to the Wisconson governor, besides having Guardsmen to strictly enforce a curfew? Ideally, tools would not infringe on any rights of assembly.

The Governor can have extra police as well as members of the National Guard in place prior to any verdict. Such Law Enforcement forces can be ready to suppress any violence, as well as enforcing a curfew. Ideally they would be briefed on appropriate levels of response, and the difference between protests and violence, and how and when to avoid escalation. The Governor could appeal in advance to the public for calm and non-violence. The Governor could speak with known leaders of various factions or groups who might be able to urge a non-violent response. The Governor could perhaps restrict public acces to areas near the courthouse, but this might not be effective, and indeed might only serve to escalate things. I am not sue if the Governor has the legal authority to decalre a temporary "no-weapons" zone in areas likely to be the scenes of violence, and even if that were legal, it might be a poor idea.

wisconsin

law-stackexchange-questions-answers.json

law-stackexchange-qa-80976

What is the most comparable American law to GDPR right to subject access? Privacy Act?

HIPAA seems comparable but only applies to medical data, but is there anything more general than that? How does privacy act compare to data subject access rights under gdpr? Is it that it only applies to government entities but not private sector data controllers?

HIPAA seems comparable but only applies to medical data, but is there anything more general than that? Not really, at least at the national level. There is no comprehensive national regulation of data privacy in the United States. There are regulations related to health information (HIPAA), to educational records, to tax information, to census information, credit reporting agencies, and to banking records (as well, of course, as to national security information). There are also largely consistent restrictions at the state level related to the juvenile justice process. But data privacy is not a subject of general regulation in the U.S. Instead, the data privacy regulations of the U.S. consist of a patchwork of fragmentary state and federal laws and regulations, superimposed on a significant and not entirely consistent or well developed body of common law precedents such as the privacy torts set forth in the Restatement (Second) of Torts, which some states have adopted fully, some states have rejected almost completely, and some states have adopted in part or with significant modifications. The U.S. Constitutional law of the First Amendment also heavily colors how other legal limitations and authorizations are construed and drafted, because the right to distribute truthful information without restriction has long been considered one of the core protections of the First Amendment, even in the much less vigorously protected area of commercial speech. Some states have more general regulations, and the most important of these is California, both because it is a large and economically significant state, and because it is the home to many of the leading U.S. technology companies, many of which expressly adopt of the law of the State of California in choice of law clauses in their terms of service and contracts. The California law most similar to the GDPR is the California Consumer Privacy Act of 2018 (CCPA) which gives consumers rights with respect to the use of the personal information that businesses collect about them and the CCPA regulations that provide guidance on how to implement the law. The website of the State of California's attorney general provides some answers to frequently asked questions about this law.

ccpa,data-ownership,gdpr,hipaa,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-51585

Can a contractor refuse to pay a subcontractor if he doesn't get paid?

Can a contractor refuse to pay a subcontractor until the contractor receives his payment from the company/client? Does it matter if it's in a written contract? Can the buck be passed like that? "Payment is contingent on when Client pay Contractor. In the case where a Client uses net-30 payment schedules, the Contractor can expect to be paid up to 30 days after the first day of the month after Subcontractor submitted invoice." They slipped this one by me. Hypothetically if the Client doesn't pay Contractor does that mean I wouldn't get paid and there would be nothing I could do about it? Is there even a deadline?

At common law there is no prohibition such a term Contract law is based on the premise that the contract is made by consenting people who want to make enforceable promises to each other and they know what’s best for themselves. At common law, you can’t agree to a contract and then avoid its consequences because you don’t like them or don’t think they are “fair”. At common law, the only way to avoid a contractural obligation is to demonstrate that it is unconscionable, that is, the term is so onerous that no reasonable person would have agreed to it. A “pay when paid” clause is not unconscionable. Contracts are about risk allocation - if a subcontractor agrees to assume the risk of the principal not paying the contractor there there is nothing to stop them doing so. Statute law sometimes recognises that people need protection The conceit of the common law is that contracts are formed by parties of relatively equal power who are able to negotiate and agree the terms of their contract. Since this is not necessarily the case, the legislature in various jurisdictions has stepped in to regulate some contracts. Most commonly this occurs in the context of consumer protection law. Canada (and it’s provinces) have these laws so you need to check if your contract is covered - “consumer” can include businesses in some jurisdictions. Further, in Canada (and it’s provinces), certain contracts in building and construction are covered by prompt payment laws which, if they apply, make “pay when paid” clauses void.

canada,contract-law,contractor,labor-law

law-stackexchange-questions-answers.json

law-stackexchange-qa-536

If I live in the US can I be prosecuted for answers describing illegal activities?

The internet allows for some level of anonymity and occasionally you will find posts that give detailed descriptions of how to perform an activity that is illegal. Examples may include how to covertly grow marijuana, or swindle money. If I live in the US and make posts or provide answers to questions that explain how to perform an activity that is illegal in the US, can I be prosecuted? This question is about sharing the "how to" information only, not actually performing any illegal activity.

In general this is protected by the first amendment. It is not in general a problem describing how one can one can do something illegal. But there are special cases to be careful with. You might want to do some research into the limits on free speech. It would be hard to provide an answer that fully covers all your different cases and you would need to be more specific about what illegal activity you want to describe. In describing how to do something illegal, you might accidentally share information that you are not allowed to share. When you post things online, this can be considered as publishing or exporting. Therefore certain export restrictions might apply. Also, It is illegal to publish bomb making manuals, with the knowledge or intent that this information be used to commit a federal crime of violence. See https://www.law.cornell.edu/uscode/text/18/842. There are restrictions on publishing material relating to cryptography without having an export license. Granted, this isn't necessarily related to publishing things that are illegal, but just to give an idea about how publishing/exporting knowledge can causes problems. See https://en.wikipedia.org/wiki/Export_of_cryptography_from_the_United_States ITAR (International Traffic in Arms Regulations) sets restrictions on what you can publish about arms. What you publish can't be “directed to inciting or producing imminent lawless action.” See for example https://en.wikipedia.org/wiki/Brandenburg_v._Ohio. One might imagine that you could get into trouble if someone interprets what you do as inciting or producing a lawless action. It might sound obvious, but you want to make sure that you have the right to share the information that you have. The information that you are providing might be copyrighted in some way.

freedom-of-speech,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-50091

Performance bonds vs insurance

I'm an engineer and I'm studying for the law and ethics exam to become a registered engineer in Canada. I'm studying a chapter on a book about Bonds where I see: A bond is a special form of contract, whereby one party, the surety, guarantees the performance by another party, the principal, of certain obligations. The party to whom the obligations are owed is called the obligee. Reading this link I find: Insurance: When a claim is paid the insurance company usually doesn’t expect to be repaid by the insured. Surety Bond: A surety bond is a form of credit, so the principal is responsible to pay any claims. Typically, the surety requires the principal and its major shareholders to indemnify the surety against any loss. In fact, the indemnity given by the principal is one of the things that distinguishes a bond from an insurance contract My doubt is: If as a contractor(principal) you will be required to repay to the surety for any losses that the surety had to pay to the owner(obligee). What are the advantages of a bond over liability insurance where the insurance company pays and the contractor doesn't have to repay anything else that the usual monthly premiums? Why creating the figure of the surety if the contractor will end up having to pay the surety to compensate for what the surety paid to the obligee anyway? Why not using liability insurance for this? I don't understand very well the notion of face value of a bond which is "the maximum potential liability of the surety". Does the principal have to pay up to this to the surety ?

Normally insurance covers tort liability for negligence or mistakes or accidents. The person harmed sues you for money damages for harm caused by the incident, the insurance company hires a lawyer to defend you, and if you lose, the insurance company pays the damages award or settlement up to the policy limits. Tort liability is for something you didn't do on purpose. (Some insurance policies count the cost of hiring a lawyer to defend you against your policy limits, others provide the lawyer as an extra benefit in addition to the policy limits.) A bond normally covers breach of contract liability much of which wouldn't be an insurable loss for things like simply not finishing a job on time and incurring a late charge, or failing to pay a subcontractor that the person hiring you then has to pay. Breach of contract liability is available in a lawsuit without regard to fault if a contract term isn't met. Bond liability covers both intentional and unintentional breaches of contract. The purpose of a bond it to reassure the person hiring you that you aren't judgment proof, by pushing the risk that you can't afford to compensate the person hiring you for your breach of contract from them to the bonding company. The bonding company in turn gets the right to sue you for any amount it has to pay, doesn't hire a lawyer to defend you in the breach of contract case, charges you a non-refundable fee in addition called a bond premium, and will do some investigation and/or require you to post collateral to make sure that if they sue you that you'll be able to pay them. The bond company's obligation to pay your unpaid breach of contract debt is limited to the dollar amount of the bond. Think of a bond as a substitute for a security deposit when you don't have the cash on hand to pay the security deposit. It is customary in jobs managed well to require you to have both bonding and insurance, not one or the other.

contract-law,government-contracts,insurance

law-stackexchange-questions-answers.json

law-stackexchange-qa-50794

Could government legally temporatiliy halt rent/mortgage/interest payments for the benefit of the greater economy?

I’m not well versed in economics or law by any stretch of the imagination. But I am confused with certain measures taken thus far by the government. There is currently a temporary shutdown of vast sectors of the economy now and workers affected are not receiving any income. To me, logic would dictate that here should also be a temporary cessation of payments for rental properties (for small businesses as well as individuals) and, to be fair, a temporary cessation of payments for loans for owners of those properties. In turn, banks would be given temporary cessation payments for interest to its customers since the banks would not receive any payments on loans including payments on mortgages from homeowners. That would essentially close the loop on money flow which again would be temporary and the impact to the greater economy would be limited. If undue burden is placed on any one of these points in the cycle, and right now, workers and small businesses are taking that brunt, then there could be long-standing damage to the economy from bankruptcies, foreclosures, etc. The Fed is already addressing the banking side of things by keeping rates close to 0. Does the government have the authority to push for a standstill in mortgage/interest/rent payments? I feel this temporary measure would alleviate economic hardship and prevent long-term damage to the economy.

It depends on the applicable state laws granting emergency powers. The most recent decree in Washington State suspends garnishments and post-judgment interest. The governor was given broad powers by the legislature (RCW 43.06.220) to suspend laws in case of an emergency. If a state has no such powers (every state does) or if a particular action is not within the scope of the governor's emergency powers, then no. Otherwise yes. The governor of Washington has the emergency power to limit assembly, anything to do with flammables, sale of anything related to preservation of life, health and peace, and "other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace". He also can suspend government enforcement actions, such as garnishment and post-judgment interest (and court proceedings resulting in judgments), an suspects statutory / regulatory restrictions on actions (could suspend the sales tax). He cannot, however, single-handedly write new laws. There is no existing provision that would allow cancellation of interest obligations, although the legislature has the power to restrict interest in various ways (such as the usury statutes). So without a new power being passed by the legislature, the answer is Washington is "no".

loan,mortgage,rent

law-stackexchange-questions-answers.json

law-stackexchange-qa-48486

Do non-US companies have to pay US tax just because they have US customers?

I just came across some US tax forms for foreign entities like W-8BEN-E and 1040NR which made me ask this question. Suppose a company called Cool Stuff Ltd. runs some sort of online business serving customers all over the world. This could be paid content subscriptions, dating, posting ads/classifieds, hosting, VPN — all sorts of stuff that is performed by software accessible by customers over the Internet. The company is not present in the US in any way: no incorporation, no offices, no employees, no web hosting, the shareholders and directors are not related to the US at all. People in the US can access the company's website/app and buy services in the company's home country currency. The company may not even care or take note of where they are from. Technically, if any single John Doe from the US decides to buy a subscription, he will make the company "receive" "income" "from U.S. sources that consists of" "Compensation for, or in expectation of, services performed" (W-8BEN-E): Does that really trigger the company's obligation to fill US tax forms and pay tax in the US? If so, is there any threshold i.e. minimum income that triggers the obligation?

It is more complicated. From Wikipedia “The United States has income tax treaties with over 65 countries. These treaties reduce the chance of double taxation by allowing each country to fully tax its citizens and residents and reducing the amount the other country can tax them. Generally the treaties provide for reduced rates of tax on investment income and limits as to which business income can be taxed. The treaties each define which taxpayers can benefit from the treaty.”

business,corporate-tax-laws,online,tax-law,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-85002

Are the attorney ratings on the website avvo.com reliable?

I am relying on the ratings on Avvo to determine who I should choose. Is it reliable?

No. Avvo.com is effectively an advertisement platform for attorneys. Avvo.com deletes detailed accounts of attorney misconduct including such an attorney themselves admits to, for e.g. in a dispute resolved in the attorney’s surrendering of their case upon the involvement of an arbitrator. This is true, including in California, where attorney misconduct is known to be greatly prevalent, left unprosecuted, and covered-up for. (See, for e.g., State Bar doesn’t police attorneys or itself closely enough, state audit finds, San Francisco Chronicle, April, 2022; see also, The State Bar of California’s Attorney Discipline Process, Auditor of State of California, April 14, 2023) In fact, even low-star ratings may be deleted when an attorney disputes users' ratings without an impartial documents-only hearing. However, where an attorney successfully accumulated enough 1 and 2-star reviews, and they are shown anything less than 5 stars should be a red flag. The lower the overall rating the greater a red flag, and the more ratings being the base of the overall rating the more well-founded any such red flag is. All in all, a 5-star avg. rating on that site should not be given any more weight than a billboard reading the “best injury attorneys in the Greater [fill in with choice of city name of metropolitan area] Area, call (888)…”; however, a low rating should raise serious concerns because of the business model and moderation practices of the site administration. (If they say you’re bad, you probably are bad bad.)

lawyer

law-stackexchange-questions-answers.json

law-stackexchange-qa-52038

What is the law regarding web/mobile applications and "personal" data?

I'm developing an application for mobile/web/desktop that will (in very watered down basic terms) store free text strings they've self-contributed and access them freely. As it stands, these applications can run without processing data and storing everything locally on the device. However, if I want to save the users data to a server in order for them to load the same information on multiple devices, I will be storing and processing data. The reason I'm hitting a brick wall in trying to track down the legal issues involved here are twofold: If the developer is based in the EU and the server is based in the US, which jurisdiction does this fall under? If I'm storing just an e-mail address and unique identifier key in the database for login, would this in itself, be identifiable information? Would a user storing the text string "Mop floor tonight" be considered personal data? I ask because as this is free text, I'm aware a user could essentially type "My name is Dave Smith and I live at 742 Evergreen Terrace" and suddenly that's very personal data. I'm just trying to get my head around the risks/efforts involved in having a simple "sync to all devices" command that can be manageable by a 1 person developer team. Are there perhaps exemptions for small businesses whose IP is the code itself and not the data (i.e., I'm just collecting a username/email for login, no other data, not writing to the e-mail or using that data to generate revenue etc), and the self-supplied data is essentially just there to enable a feature? Or is this a legal framework I'll have no choice but to consider globally for all users?

If your app is "targeted" at residents of the EU and anyone currently located in the EU uses your app, the GDPR will apply. If the application operator is located in the EU, the GDPR will apply. If anyone who is a resident of California uses the app, the CCPA (TITLE 1.81.5.) will apply. The data protection and privacy laws of other countries may well apply as well. Under Article 4 section (1) of the GDPR: personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; This means that under the GDPR an Email address is definitely personal data. An IP address is usually personal data. Anything that relates to a user that can be identified is also personal data. An email address is also personal information under the CCPA. Under GDPR article 6 there must be a lawful basis for processing (which includes storage) of any personal information. The most likely basis for the situation described in the question is the consent of the data subject. Consent must be freely given, and may be revoked at any time. Under CCPA section 1798.100 (a), a business that collects personal information must inform consumers of: (1) The categories of personal information to be collected and the purposes for which the categories of personal information are collected or used and whether that information is sold or shared. (3) (3) The length of time the business intends to retain each category of personal information, including sensitive personal information, or if that is not possible, the criteria used to determine that period provided that a business shall not retain a consumer’s personal information or sensitive personal information for each disclosed purpose for which the personal information was collected for longer than is reasonably necessary for that disclosed purpose. Under Article 15 of the GDPR a data subject has the right to ask what information the data controller is processing (including storing). The CCPA provides a similar right under section 1798.110. Under Article 17 of the GDPR a data subject has the right to request that the data controller delete such information. The controller must comply unless there is another lawful basis for continues processing. There are some complexities in regard to when a controller may decline such a request. The CCPA provides a similar right under section 1798.105. In short an application operator must respond to questions from users about what information the app has on file about a particular user, and how it is used, and must delete such info on request unless there is good reason to retain it. details vary. Under Article 24 of the GDPR Taking into account the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, the controller shall implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in accordance with this Regulation. Those measures shall be reviewed and updated where necessary. Where proportionate in relation to processing activities, the measures referred to in paragraph 1 shall include the implementation of appropriate data protection policies by the controller. Under CCPA section 1798.100 (e) A business that collects a consumer’s personal information shall implement reasonable security procedures and practices appropriate to the nature of the personal information to protect the personal information from unauthorized or illegal access, destruction, use, modification, or disclosure in accordance with Section 1798.81.5. In short an operation must use reasonable security measures to keep user information confidential, except where users have agreed to it being made public. What is reasonable will depend on the nature of the app, and the kind of information it is likely to process an store. It is good practice to generally indicate what information is secured, and the overall degree of security in use, but not the specific measures taken. If information is not highly secure, users should be aware of that before they entrust highly sensitive data to the app. Neither the GDPR nor the CCPA provides any exceptions for "small" controllers/businesses/operators, although the GDPR provides an exemption for "household" use. That would not apply when any person on the net is able to register an account and use the app. If I'm storing just an e-mail address and unique identifier key in the database for login, would this in itself, be identifiable information? Would a user storing the text string "Mop floor tonight" be considered personal data? Any data that is associated with PII, such as an email address therby* becomes personal data (PD). If a given row of the apps DB has "Joe@example.comn.com " in the "email" column, and "mops flops" in the "uploaded text" column, then "mops flops" has just become PD relating to Joe. This leal framework applies to all users. In the app as described in the question, the obvious and plausible legal basis fore processing is consent. One need simply obtain consent from every user to store and process that user's login details and all test uploaded by that user. If the user revokes consent, remoe the user from the DB. There is nothing special about a "sync" command. Once you have PD for a user on any part of the controller's system, a basis is needed.

data-protection,gdpr

law-stackexchange-questions-answers.json

law-stackexchange-qa-83334

If a law is blatantly unconstitutional, is a search warrant based on that law valid?

Applications for search warrants are typically ex parte. In such a proceeding the person who owns the property to be searched and/or seized cannot challenge the unconstitutional laws that form the basis of an affidavit justifying that probable cause exists for a search. Does there exist a basis to challenge the admissibility of evidence obtained following this search? Particularly if such a search is used as pretext to find items that violate laws that are not unconstitutional. Would agents that engage in such a search be able to assert qualified immunity in a 1983 proceeding even though the statute was blatantly unconstitutional?

If it is "sufficiently obvious" that a law is unconstitutional, evidence obtained relying on that law can probably be suppressed. Two important principles help discern the answer to this question: The Constitution prohibits searches that are "unreasonable." The existence of a warrant authorizing a search is strong evidence that a search is reasonable, but the warrant is neither necessary nor sufficient to make a search reasonable. The Exclusionary Rule is designed to do one and only one thing: discourage law enforcement misconduct. Therefore, evidence obtained in reliance on a defective warrant will only be suppressed if it was "objectively unreasonable" for the officer to rely on that warrant. Courts typically find reliance on a warrant to be objectively unreasonable when the warrant was obtained through deception, when it authorizes a search of a person or place with no connection to a crime, or when it fails reasonably describe the person or place to be searched. It is likely also possible to have evidence suppressed because the warrant authorized a search for evidence of the violation of a plainly unconstitutional law. That was the question in Illinois v. Krull, 480 U.S. 340, (1987), where a defendant was prosecuted based on evidence obtained in reliance on a law that was later ruled unconsitutional. The Illinois Supreme Court held that because the law was unconstitutional, the search relying on it was also unconstitutional, and the evidence obtained thereby must be suppressed. But the Supreme Court reversed, holding that the evidence need not be suppressed because "this defect in the statute was not sufficiently obvious so as to render a police officer's reliance upon the statute objectively unreasonable." This suggests that if a statute's unconstitutionality is sufficiently obvious, that an officer seeking evidence in reliance on it would be objectively unreasonable, and that that evidence would therefore be subject to suppression. I don't know of it ever happening, but it's easy enough to make up ridiculous laws that might satisfy this standard. For instance, if Congress passed a law permitting police to write their own warrants to search any mosque at any time, evidence from that search would likely be suppressed. Or if Congress passed a law prohibiting all black women from criticizing the president, evidence that a defendant had violated that law would likely also be suppressed, even if it had been obtained with an otherwise validly issued warrant. Of course, most laws are not as obviously unconstitutional as those, so a challenge on these grounds will likely revolve around what exactly should have alerted a reasonable officer to the statute's consitutional infirmities. Likewise, an officer executing such a search is exposed to Section 1983 liability for an unreasonable search or seizure if his reliance on the warrant is not objectively reasonable. As always, there will be a question of whether the officer is entitled to qualified immunity, but that question will turn as always on whether his violation of the law was clearly established. If he is searching for evidence of black people voting, qualified immunity is going to be a hard sell. If he's searching for evidence that a defendant violated a law in a gray area, qualified immunity may save him.

fourth-amendment,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-18774

Are you legally obliged to show the registered symbol with a logo?

If an external company's logo includes a registered symbol, are you obligated to reproduce it (in a link to their website, for example) along with this symbol? What if the usage guidelines dictate the use of (R) -- can you omit it?

We should do so the first time the registered mark is used on any given webpage or article and such and we can then proceed with "clean hands" omitting the registration symbol during the rest of the article or whatever. It shows good faith not to infringe noting our corrupt courts now allow lawyers to sue a ham sandwich as it is said so do not give bottom feeding lawyers any opportunity to claim infringement and by all means it goes without saying that we should not infringe. Period. We can also include a disclaimer somewhere visible to the general public that will see the use of the 3rd party's registered mark. If the mark is declared with TM that declaration carries no legal recourse for protection although the same is not true of the use of the SM designation. Keep your hands clean.

copyright,trademark

law-stackexchange-questions-answers.json

law-stackexchange-qa-6831

Is it possible for one's own invention to be patented by others?

If a person invented something new but didn't file a patent: Is it legal for other people to file a patent for it? Is it possible for other people to be granted a patent for it if they are not the original inventor? If other people file a patent and claim they invented it independently at about the same time, what evidence do they need to show? If the original inventor has clear evidence to prove his/her originality, is there a way to stop other people from patenting this invention?

The US uses a "first to file" system, or maybe more accurately, "first inventor to disclose" system. If two people independently invent the same patent eligible thing, and neither discloses it publicly, then the patent will be awarded to the first person to file. To prevent somebody else from patenting your invention, either disclose your invention publicly or apply for the patent yourself as soon as possible.

patents

law-stackexchange-questions-answers.json

law-stackexchange-qa-61605

Do the words "take advice" / "taken advice" imply the advisor is a lawyer?

As per the title, I am (as a non-lawyer) helping someone in a dispute where fraud has occurred. If I'm helping the person write a letter to one of the involved parties based on my advice, if I help her produce a letter which says she has "taken advice" (and I am the one advising her), would this be construed as a claim she has received advice specifically from a lawyer? Put another way, if someone claims to have "taken advice", and the advice they received was from a non-lawyer, is the claim misleading?

if someone claims to have "taken advice", and the advice they received was from a non-lawyer, is the claim misleading? No. The language "taken advice" does not imply "taken legal advice", let alone one arising from an attorney-client relation or taken from someone purporting to be a lawyer. The language "taken advice" in and of itself leaves the advisor's capacity unspecified. For instance, the non-lawyer might be an accountant whose advice goes beyond a lawyer's scope or expertise. That being said, it is unclear whether adding that expression is useful at all.

legal-terms

law-stackexchange-questions-answers.json

law-stackexchange-qa-28784

Is it legal to impersonate an abstract lawyer?

I would like to request a copy of my contract from a previous employer, where most of the staff is juridically uneducated people. I'm afraid that if I introduce myself, HR would realize that I am a former employee and would decline to send the copy, stating that I should have my own version (which I have lost). There might be a legal debate, depending whether I signed a certain page where it says "overtime hours are not paid" or not. I know I can hire a lawyer who can demand the contract copy, but then if I really signed the page (it was a long time ago, I don't remember), the job of the lawyer is done and I still pay for their service. To save money I have considered this trick: Register a new email address with something like Person@FloridaLawGroup.com Call the HR office and impersonate an abstract lawyer who is defending an interest of the former employee. Request a copy of the contract be sent to the aforementioned email address. Is any part of this plan illegal?

According to Florida law 454.23: Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. What you propose therefore seems to be a felony. And according to a 2015 survey from the American Bar Association, Florida had the highest budget in the nation for prosecuting unauthorized practice of law - $1.8 million. So this seems like a very bad idea.

florida,is-x-legal,lawyer

law-stackexchange-questions-answers.json

law-stackexchange-qa-42335

Which supersedes the other, laws or treaties?

The Supremacy Clause of the U.S. Constitution states that the Constitution, laws and treaties are the supreme law of the land. Obviously, the Constitution supersedes both laws and treaties, but which is given more importance, laws or treaties? For example, if the Congress passed a law in violation of a treaty, would that law be valid? If the Senate ratified a treaty in violation of federal law, would that treaty be valid?

The U.S. law rule is that treaties and laws are co-equal and that one does not supersede the other. In the U.S., the rule is that the last passed law or treaty prevails, over earlier passed laws or treaties if they conflict. See, e.g., Julian G. Ku, "Treaties as laws: A Defense of the Last-in-Time Rule for Treaties and Federal Statutes" 80 Indiana Law Journal 319 (2005) citing cases including Whitney v. Robertson, 124 U.S. 190 (1888). But, this is not self-evident, Indeed, it is a minority rule of law to the point of pretty much being an outlier. In the vast majority of countries other than the U.S., domestic laws are subordinate to treaties, and there is some hint in the structure of the U.S. Constitution and the discussions of the Founders regarding the treaty power, that this how the Founders assumed that conflicts between treaties and domestic statutes would be interpreted, even though the U.S. Supreme Court ended up interpreting the constitution differently. Few countries in the world give so little legal effect to international treaties and international law, more generally, as the U.S. does. In contrast, in Europe, many human rights protections arise from international treaty obligations that override domestic laws, rather than from their own domestic constitutional law. Also, while this rule seems simple and mechanical, it rarely presents in the fashion, because there are a variety of tools, such as interpreting treaties and statutes in a manner that avoids a conflict (particularly with respect to questions such as whether a treaty should be considered "self-executing" or not, and a rule of construction that one enactment that does not expressly overrule another should not be deemed to do so implicitly unless there is no interpretation that can resolve the conflict otherwise), that muddy the waters. As Ku, explains in the law review article linked above: Although the Constitution declares that treaties are the "supreme Law of the Land,"the status of treaties in the American legal system is plagued by uncertainty. A court considering a private individual's claim under a treaty must first consider a number of complex questions such as whether the treaty is "self-executing," whether the treaty's effect is otherwise nullified by conditions placed on it during ratification, whether the treaty exceeds constitutional limitations on the exercise of the treaty power, and whether the treaty conflicts with inconsistent federal and state law.... For instance, in recent years the International Court of Justice ("ICJ") has twice found that U.S. domestic law limiting habeas corpus appeals violated U.S. treaty obligations to guarantee consular notification rights to foreign nationals charged with capital crimes.' The ICJ found a conflict between the treaty and U.S. law even though the U.S. government offered a plausible alternative interpretation of the treaty that avoided conflict with domestic law. (Despite these findings, the U.S. did not enforce the alleged treaty obligation.) A good example of this is the case of Bond v. United States, 572 U.S. ___ (2014) (note that it is important to provide a year when discussing the Bond case, because the U.S. Supreme Court made two successive rulings in this case and also established an important precedent in an unrelated case with the same name). Wikipedia's summary of the case explains how the case avoided having to resolve constitutional issues in the case (references to Holland are to State of Missouri v. Holland, linked and discussed below): Carol Anne Bond is a microbiologist from Lansdale, Pennsylvania. In 2006, her best friend became pregnant. When Bond discovered that her husband was the child's father, she attempted to poison her former friend by putting organoarsenic and potassium dichromate on the woman's door knob. Bond was caught, and was convicted under the Chemical Weapons Act. In her appeal, she argued that applying the chemical weapons treaty to her had violated the Tenth Amendment. The Court of Appeals ruled that Bond lacked standing to make a Tenth Amendment claim. On appeal, the Supreme Court reversed by stating that individuals can bring Tenth Amendment claims. The Court then remanded the case for the Third Circuit to decide the case on the merits. On remand, the Third Circuit found that "because the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power and because Holland instructs that 'there can be no dispute about the validity of [a] statute' that implements a valid treaty, we will affirm Bond's conviction." Bond again appealed to the Supreme Court, asking the court to overrule Holland or to find that her actions were not covered by the CWA. The case attracted a great deal of attention, with US Solicitor General Donald Verrilli arguing for the government and former Solicitor General Paul Clement arguing for Bond. Senator Ted Cruz wrote an essay for the blog of the Harvard Law Review, urging the Court to overturn Bond's conviction. Chief Justice Roberts opened his opinion by vividly describing John Singer Sargent's life-sized painting of mustard gas victims. Roberts closed by noting, "There are no life-sized paintings of Bond's rival washing her thumb." In its judgment, the Court unanimously concluded that the convention was not meant to cover local activities such as Bond's poisoning attempt. Writing for the Court, Chief Justice Roberts declined to define the scope of Treaty Clause powers, invoking constitutional avoidance. Because the Chemical Weapons Convention is not self-executing and because it requires implementation by a signatory to be "in accordance with its constitutional processes," Roberts focused his attention on statutory interpretation of the federal criminal code. According to Roberts, one of the key "background principles of construction" is federalism; there must be a "clear indication" by Congress if it intends to "dramatically intrude upon traditional state criminal jurisdiction." The Court concluded that there was no such clear indication in the text of the criminal statute. Roberts rejected the Solicitor General's interpretation of the statute, noting that the government's reading would make it a federal offense to poison children's goldfish and that state authorities are fully capable of punishing burrito poisoners. Finally, Roberts briefly responds to Justice Scalia's interpretation by noting that adopting "the most sweeping reading of the statute would fundamentally upset the Constitution's balance." A well-known line from his opinion is at the end: "The global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon." Thus, rather than ruling that a law implementing a valid treaty was unconstitutional, the U.S. Supreme Court interpreted the law implementing the treaty in a manner that did not mean something that would potentially make the law unconstitutional. The question states: Obviously, the Constitution supersedes both laws and treaties This is mostly correct under U.S. law (although it took many decades before that rule was established in precedent), but it was not obvious under U.S. law, it is not true in every country, and it is not entirely settled law in the U.S. even today. A plurality of the justices Reid v. Covert, 354 U.S. 1 (1957), which enforced the Fifth and Sixth Amendments against a contradictory treaty, stated: There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. A plurality decision, however, is not controlling authority that must be followed by lower courts. But, in State of Missouri v. Holland, 252 U.S. 416 (1920) had previously reached an arguably contrary conclusion. The official syllabus to that decision noted that: Protection of its quasi-sovereign right to regulate the taking of game is a sufficient jurisdictional basis, apart from any pecuniary interest, for a bill by a State to enjoin enforcement of federal regulations over the subject alleged to be unconstitutional. The Treaty of August 16, 1916, 39 Stat. 1702, with Great Britain, providing for the protection, by close seasons and in other ways, of migratory birds in the United States and Canada, and binding each power to take and propose to their lawmaking bodies the necessary measures for carrying it out, is within the treaty-making power conferred by Art. II, § 2, of the Constitution; the Act of July 3, 1918, c. 128, 40 Stat. 755, which prohibits the killing, capturing or selling any of the migratory birds included in the terms of the treaty, except as permitted by regulations compatible with those terms to be made by the Secretary of Agriculture, is valid under Art. I, § 8, of the Constitution, as a necessary and proper means of effectuating the treaty, and the treaty and statute, by bringing such birds within the paramount protection and regulation of the Government do not infringe property rights or sovereign powers respecting such birds reserved to the States by the Tenth Amendment. With respect to right reserved to the State, the treaty-making power is not limited to what may be done by an unaided act of Congress. Many legal scholars expected that Bond (2014) would resolve the tension between Reid and Holland, but instead, the U.S. Supreme Court punted, and declined to reach that issue in that case. Arguably, Reid and Holland are not truly in conflict, because Holland addresses the scope of the treaty power in light of federalism concerns, which isn't necessarily identical to the scope power of Congress to enact domestic laws pursuant to U.S. Constitution, Article I, Section 8 in light of federalism concerns, while Reid concerns constitutional provisions which have been interpreted to flatly prohibit the government from abridging certain individual rights at all. U.S. Constitution Article I, Section 8 limits the authority of Congress to enact domestic laws to certain enumerated subjects (with all other powers reserved to the states), while the treaty power is not limited to any particular subject-matter (in part, because states are not permitted under the constitution to enter into international treaties, so the federal government needs to handle treaties involving both national and state level concerns, while states have plenary power to enact domestic laws in all circumstances where they are not expressly prohibited from doing so).

constitutional-law,treaty,united-states,us-constitution

law-stackexchange-questions-answers.json

law-stackexchange-qa-18499

Is it a GPLv3 violation for a project to charge a fee for downloading binaries?

Is it a GPLv3 violation for a project to charge a fee for downloading binaries? Concretely I am wondering about this case: http://moodeaudio.org/ The project is clearly licenced under GPLv3 as stated on the website and uses open source software in it. However it is not distributed freely. A fee of 10$ is charged for downloading. Furthermore I can not find any links to the source code anywhere on the website.

The GPL does not forbid you from charging money for software, nor does it require you to provide source code to the general public. What the GPL requires is that your software be free software, with "free" used in the sense of "free speech" rather than the sense of "free beer." According to the Free Software Foundation (authors of the GPL), the right of users to sell software is a requirement for it to be free software. If you receive a GPL license for software, you can give it to whoever you want provided you also ensure that person can get the source code. You don't need to make the source code available to the public, only to the people you actually distribute the binaries to. The GPL is structured along the lines of "if you distribute the software to someone, you must give them these rights;" it is not structured along the lines of "you must distribute the software." Of course, if users have the right to distribute copies for free, it's hard in practice to charge money (all it takes is one user distributing copies). But that doesn't mean you can't try. Some companies make substantial money selling free software through various models (e.g. Red Hat, which charges money for support). Others might bank on the fact that plenty of people are willing to pay to get it from the official site, and aren't interested in finding a free copy somewhere. It doesn't matter; as long as they license the software to you under the GPL and give purchasers access to the source code on the same terms, they're in the clear (if you want to redistribute binaries, it's your job to redistribute the source code as well).

gpl

law-stackexchange-questions-answers.json

law-stackexchange-qa-49422

Pulling debtor credit report without SSN

I have a judgment against a debtor with only their name and date of birth. How do I obtain their credit report? Just write to Experian with a court order? First question- is it legal to do this. Second question- do I need their ssn, and if so, how can I legally obtain it.

Generally, you do this by retaining a private investigator, or by retaining a debt collection agency (which will add your debt to the debtor's credit report). Post-judgment debtor's interrogatories posted by a judgment creditor to a judgment debtor can require the judgment debtor to reveal his SSN or the equivalent (e.g. an EIN or TIN). It isn't clear why you would want their credit report, however. You have established that they owe you money and aren't deciding whether to extend credit which is what a credit report is used to do. A credit report does not identify the assets of a debtor, only their debts. This can be of a little help in the case of secured debt with assets of the debtor as collateral, but there are other public records that can be used to search the secured debt of a debtor (mostly real property records and Uniform Commercial Code records).

nevada

law-stackexchange-questions-answers.json

law-stackexchange-qa-87554

What is the duty of a medical office to properly bill one's insurance? (USA)

In the US, it is typical for patients to sign contracts with a medical office assigning whatever benefits are applicable from their health insurance to the doctor's office and leaving the patient financially responsible for what is left unpaid. Is there a minimum standard for doctor's offices to actually complete the insurance process before passing on the rest of the bill, and if so, what kind of remedy is available if they don't? Example: A doctor's office sends to the insurance company details of a procedure to be paid, but left off one fact that the insurance company needed to complete the claim. The insurance company informs the doctor's office that in order to finish the claim, they have to complete the missing bit of paperwork. Instead of doing so, the doctor's office leaves benefits the client is entitled to unclaimed and proceeds to bill the patient for the unpaid amount. Is this a valid bill under that standard kind of contract? Is there some kind of minimum due diligence required on the doctor's part, and if so, is there some area of tort law that is available for redress?

To my knowledge there is no actual law requiring a provider to file anything on your behalf. Most do it as a courtesy but if you read the terms of service that you almost certainly agreed to, it will say that YOU are the responsible party. If the insurance company doesn't pay, even if the provider doesn't submit a claim, the responsibility is still yours. There is nothing stopping you from filing your own claim using whatever forms or procedures that they have established. I'll also note that many provider networks have rules that providers must adhere to in order to remain in that network. Some may include language about timely filing of claims but that is in no way universal. These days many providers have taken to billing the patient the full amount immediately and then will issue a refund to you if/when the insurance pays.

billing,florida,medical,tort,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-60651

Can states and localities have stronger immigration status-based employment discrimination laws than the federal law?

8 USC §1324b prohibits employers from discriminating against employees or prospective employees on the basis of immigration status, if the individual in question is a citizen or national of the United States, a lawful permanent resident (with a proviso that I won't discuss here), or an asylee or refugee. I'm wondering whether the existence of 8 USC §1324b rules out the possibility of any stronger state law. For example, suppose a state had a law that says employers can't discriminate against people with Temporary Protected Status (TPS). This doesn't directly conflict with federal law, since TPS people have an immigration status that allows them to work for any employer. However, I am not sure whether the concept of field preemption would apply here.

It is well established that the federal government has complete control over immigration. See especially Arizona v. US which holds that States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance. De Canas v. Bica (1976), 424 U.S. 351 is also relevant to the application of field preemption to INA. In this case, the courts found that Congress had not (at that point) entered the field of employment of unauthorized workers, so state laws were not preempted by federal law. Laws can change, and with them, potential state powers. In Arizona the court held that Intent can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where a “federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject” and with respect to issues of immigration, Because Congress has occupied the field, even complementary state regulation is impermissible. The Immigration Reform and Control Act of 1986 adds provisions to the Immigration and Nationality Act, including employment-related law, thus Congress has entered the field of regulating immigration with respect to employment. Current 8 USC §1324b arises from various amendments to the INA, where the present expression "protected individual" was inserted, by Public Law 101-649, to replace earlier "citizen or intended citizen". Congress also introduced Temporary Protected Status in §302 of the law, which has specific (more restricted) provisions regarding employment. The evidence clearly indicates that Congress intended to include employment issues w.r.t. their supreme power regarding immigration. These discrimination provisions are in the field of immigration, and not discrimination legislation (where Congress has not preempted the field). Congressional silence must, in the light of what Congress did say, be interpreted to mean that the US immigration policy only offers certain specific protections, and states cannot add to or subtract from those protections.

immigration,preemption,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-3367

Does NJ law prohibit alcohol consumption in public parks?

Does NJ law prohibit alcohol consumption in public parks?

Yes. TITLE 7 OF THE NEW JERSEY ADMINISTRATIVE CODE. 7:2-2.6 Alcoholic beverages prohibited A person shall not possess and/or consume alcoholic beverages on lands and waters under the jurisdiction of the State Park Service except where the sale, use or possession is specifically approved by the Director of the Division of Parks and Forestry or the Assistant Director of the Division for the State Park Service. There is no statewide law governing non-state parks - like city and county parks for example. These entities are free to regulate as they see fit. For those rules you will need to inquire specifically.

alcohol,new-jersey

law-stackexchange-questions-answers.json

law-stackexchange-qa-51795

Can I legally sell merchandise with the face of a celebrity without their permission?

My friends and I want to start selling merchandise of pictures of two celebrities. The pictures are of two celebrities. We want to make sure that we won't have a lawsuit on our hands if we start selling. The pictures we want to use are available and posted publicly by them. The pictures are not copyrighted. Is this legal?

The pictures are almost certainly copyrighted: it is immaterial that the pictures were made available by the subjects. So you could easily have a copyright suit by the photographer, or subjects in the case of a work for hire, if you copy those pictures. Their likenesses are additional protected by various laws regarding "personality rights". The specific details vary according to jurisdiction, but you might easily get sued in California (full of celebrities), which has strong laws against the exploitation of images without permission. However, you may be able to negotiate a license with the subjects: after all, getting paid for allowing people to use their image is how many celebrities make their money.

copyright

law-stackexchange-questions-answers.json

law-stackexchange-qa-74910

Is Kyle Rittenhouse "out of the woods" or could he face Federal charges?

Kyle Rittenhouse has been found not guilty of Wisconsin state criminal charges. Is there any federal law that he violated?

Double jeopardy does not bar him from facing federal charges, although U.S. Justice Department policy reserves such prosecutions for exceptional cases. Also, it depends to some extent upon whether there is a suitable federal crime that fits the conduct.

self-defense,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-6929

Is it legal to download a website and display it on another that I own?

I would like to know if it is legal to download the content of a website and display it in my own? There is one way to include a website inside another: <iframe> (w3schools description) However, some websites decide that they don't want to get iframed. For example Google doesn't allow other websites to frame their content. This has of course certain reasons. There is a very simple option, the X-Frame-Option that can tell a browser that it must not render a page withing a frame if it is not from the same origin as the page itself. So far so good. Just for the sake of completeness I want to say that it's still possible to display just the content of another website. The most trivial one would be to hit CTRL + S on my keyboard, save the website and host it on another server. A more sophisticated of course would be to write a program that does that for me. One could simply download the HTML page and embed the result into another. I can imagine that e.g. copyright could be an issue. But what if my site states that it does not own the content etc. and that it did not modify anything and so on. Is there a way that this could be legal? Example What is with this example? https://proxy-nl.hide.me allows you to enter any URL and e.g. specify that it should remove JavaScript code. This allows you to see even www.theindependent.com, which tries to take counter measures against embedding their site, under another domain.

You are in breach of Copyright. Plain and simple. Certain websites allow you to use the website content as long as a link is made, but the website must clearly state that. You may also use a tiny portion of the content if it falls under Fair Use, where "Fair Use" does not mean "I want to". The best thing to do is not to do it. You can't copy anybody's work without consent. If you're thinking about Google specifically then they offer multiple APIs so that you can use their content in a wide variety of ways.

internet

law-stackexchange-questions-answers.json

law-stackexchange-qa-8870

What are the limits of "implied consent" when obtaining a driver's license?

This question comes out of reading this New York Times article (quoted below), about a bill that would allow officers to use a "textalyzer" to digitally search phones for evidence that the phones had been handled recently: The technology could determine whether a driver had used the phone to text, email or do anything else that is forbidden under New York’s hands-free driving laws, which prohibit drivers from holding phones to their ear. Failure to hand over a phone could lead to the suspension of a driver’s license, similar to the consequences for refusing a Breathalyzer. The intention is behavior change: “We need something on the books where people’s behavior can change,” said [Félix W. Ortiz, a Democratic assemblyman who was a sponsor of the bipartisan Textalyzer bill], who pushed for the state’s 2001 ban on hand-held devices by drivers. If the Textalyzer bill becomes law, he said, “people are going to be more afraid to put their hands on the cellphone.” The US Supreme Court has unanimously ruled that when somebody is arrested, their phone can't be searched without a warrant. But the bill’s authors say they have based the Textalyzer concept on the same “implied consent” legal theory that allows the police to use the Breathalyzer: When drivers obtain a license, they are consenting in advance to a Breathalyzer, or else they will risk the suspension of their license. (Emphasis added.) The analogy to the Breathalyzer is based on comparability of dangers, too: Deborah Hersman, the president of the nonprofit National Safety Council and a former chairwoman of the National Transportation Safety Board, ... said the Textalyzer-Breathalyzer comparison was apt because looking at and using a phone can be as dangerous as driving drunk. “Why are we making a distinction between a substance you consume and one that consumes you?” How far does this "implied consent" legal theory go? Can it be extended to mean that drivers' license applicants give "implied consent" to have their cars, homes, or body cavities searched in detail, or give "implied consent" to physical control by police (to enforce any failures to comply with an instruction), etc., if police request that power and find a suitably sympathetic audience in the General Assembly? It's an old argument that increasing police search powers increases safety, because it allows the police to search out and stamp out whatever behavior creates the danger to others. Where's the line, if any, which limits the extent of how far that can go? What do people really consent to when applying for a driver's license? Can "implied consent" be retroactive, such that if I have a New York driver's license today, that means I've given "implied consent" to whatever permissions the General Assembly grants police a couple years after I've gotten that license? If not, does a license renewal establish that "consent?" There is some precedent in that having gotten a NY license a few years ago does indicate consent to be bound by traffic laws including updates and changes that occur during the period of license validity. Is "implied consent" to searches one of the topics covered by that? This is tagged for New York, but as the article notes: If it were to pass in New York,... it could well spread in the same way that the hands-free rules did after New York adopted them. So feel free to answer for other jurisdictions, if they are a better fit for your expertise, and note that in your answer.

Breathalyzer tests are distinct from blood tests because the former does not "implicat[e] significant privacy concerns" (see Birchfeld v. ND). A cell phone is like a blood test, because it implicates significant privacy concerns, especially the level of electro-snooping that would be required to determine if someone had recently committed a phone-use offense. As the court held, Because the impact of breath tests on privacy is slight, and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. A breath test might (but also might not) also satisfy the exigent-circumstances exception (waiting some number of hours for a warrant can easily result in the destruction of evidence), but a cell phone case could not give rise to such an exception. It should perhaps be noted that the "implied consent" laws are misnamed, because consent is not the issue. The 4th Amendment ban is on unreasonable searches, not unconsented searches. If you actually consent, it is reasonable for the police to search. I am not aware of any ruling to the effect that "because the defendant consented, the search is valid". In the context of breathalyzer law and case-law, an essential component of what makes the search reasonable is that it is incident to an arrest. With or without consent, or an implied consent law, Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. Extending "implied consent" to cause-unrelated searches of cars, homes, or body cavities might not pass strict scrutiny. The state has a legitimate interest in public safety which justifies some minimal intrusion, but adding a provision that "when you drive, you give implied consent to searches of everything" is not narrowly tailored. But since driving is a privilege and not a right, the state has much more leeway to give you an ultimatum: if you don't cooperate with the search, you can lose your license. On the other hand, SCOTUS has not actually approved of this slogan about driving being a privilege. Something noteworthy from Birchfield is that the court also disapproves of blood tests because a less invasive method of achieving the result is available, and they grant that "Imposition of a warrant requirement for every BAC test would likely swamp courts, given the enormous number of drunk-driving arrests, with little corresponding benefit". There being no less-invasive alternative means of realizing the legitimate state interest in stopping distracted driving, I actually expect that when this comes to pass and the matter ends up at SCOTUS, there will be another important change in search law (but "implied consent" will still be irrelevant).

consent,constitutional-law,new-york-state,search-and-seizure,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-36053

Received defective Rx. Pharmacy and manufacturer refuses to refund me

I need advice on how I can get a refund on a defective ~$186 Sam's Club prescription. They were not only ineffective, but I experienced withdrawal symptoms taking those. What legal recourse do I have? Obviously, the attorney's fee will cost more than the Rx. Here are the details... Cutting the tablets in half, it was obvious that the previous tablets --that were effective-- looked different from the last Rx that was not. The tablets that were effective had a layer of dark gray on one side; the "dud" batch did not, but instead had an all-white interior. As soon as I took the replacement non-time-release alternative Rx prescribed by my physician, I experienced relief from the withdrawal symptoms as well as my medical condition. The M.D. told me that I needed to contact the pharmacy. Well, both the manager of the Sam's Club pharmacy in Springfield, MO and the lady I spoke with at the drug manufacturer have flatly stated (over the phone) that they will neither accept a return (or even samples for testing) nor refund the price we paid for these dud, ineffective tablets. The lady at the manufacturer told me that they would file a manufacturing defect report to the FDA. That was all. The pharmacy manager claimed that the tablets for the previous, effective Rx was from the same batch as the last, "dud" Rx refill. What to do? I've already contacted a local TV news station that has excellent consumer-advocacy spots (On Your Side Contact KY3). However, it now seems clear to me that she is not going to televise this.

I have little doubt that you are in the right. The Article 2 of the Uniform Commercial Code as adopted in MO would give you a legal right to a refund for breach of warranty from the pharmacy in this case. The hard part is proving it cost-effectively. This is not a type of dispute in which the prevailing party is entitled to attorneys' fees, although they would be entitled to "court costs" such as filing fees and process server fees if they prevailed. So, small claims court is the only cost effective forum that would be plausible (and it is possible that Sam's Club requires you to agree to an arbitration clause, I don't know as I don't shop there). The burden of proof is preponderance of the evidence, so a judge might simply believe your testimony and look at the respective pills. But, to really prove it definitively, you'd need an chemical test of the defective pills which would cost hundreds of dollars. While $189 is enough to be irritating, I'm not sure that it would be worth the half a dozen to dozen hours or so it would take to bring a small claims lawsuit. I'd probably write a letter to someone higher up in the company, stop doing business with them, and give them a bad online review and leave it at that in your shoes.

consumer-protection,medical,product-liability,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-47729

Do I have grounds to file a civil lawsuit against the City of Chicago for my Expired Plates Violation? Is it worth it?

I was 2 months late to renewing my license plate this year. I was given a fine (which was more than fair given my mistake), paid it without contesting, and then renewed my plates (with a late fee). The payments for my plate sticker went through and I was able to confirm that my plates were listed in the Secretary of State database as "In Good Standing". A week later I was still waiting for my sticker to come in the mail but parked my car on a city street. A Chicago officer issued another expired plates violation for my vehicle while I was away and didn't have an opportunity to explain that my plates were now in good standing for atleast the past week and I was merely waiting for the sticker in the mail. I immediately contested this ticket online, providing evidence of my receipt from the Secretary of State's office that I had renewed well before this ticket was issued (and worded it as formally and politely as I could have). I thought when my situation was reviewed it would be rather open and shut, and the fine would be dropped; however today I received a letter in the mail that a local judge had reviewed my case and determined the violation was still in affect. It then stated I would need to pay additional money in order to open a civil lawsuit to sue the city of Chicago if I wanted to appeal further; otherwise, I would need to pay my fine. It is my understanding they are probably within their right to press forward on charging me (I believe state law is that even if your plates are in good standing you can be fined for not displaying your sticker within 30 days of the original expiration date); however, I felt my situation would have been more understandable and that I had done my best to renew my plates prior to when this new violation was issued. In short, I have a 60 dollar fine (not for having expired plates but for not receiving my sticker quickly enough to display). Please let me know if a circuit court in Chicago would be even be willing to see things from my perspective or if I should just hand over more money. Lastly, If I were to file a civil lawsuit how much would I expect to pay to even try appealing this? Would I effectively be losing more money than if I just paid this fine? I tried to get this answered by calling the circuit court's financial department yesterday but they just transferred me to different branches for over an hour.

It isn't worth litigating a $60 fine for a non-moving violation that isn't likely to recur. You have a less than 50-50 chance of prevailing (something that is almost always true when you are appealing the decision of a judicial officer in a context like this one), you have no real long term harms as you would in the case of "points" for a moving violation, and you are even less likely to get costs of litigation or attorneys' fees if you prevail, so not having to pay a $60 fine would be a pyrrhic victory from an economic perspective. Even if it is free (and it probably isn't) it would easily take many hours to litigate that isn't worth you time. Any lawyer who would take the case would be cheating you because they would only leave you worse off than you are to start with due to their fees.

illinois,license-plates

law-stackexchange-questions-answers.json

law-stackexchange-qa-90297

How are courts' official case law archives distributed and stored?

For example, what medium are they recorded/stored in? Is it a hybrid/mix as technology has evolved? And, does a court automatically receive copies of all other regional courts of the same and higher degree of superiority's decisions periodically? Or would a Willesden County Court archive only have case decisions that were issued in that facility / court division? And how far back would they go?

How are courts' official case law archives distributed and stored? Staring around the late 18th or early 19th century, until sometime in the second half of the 20th century, private commercial published firms with a legal publication specialty regularly collected paper copies of reasoned court opinions in appellate cases from court clerks or parties to cases, retype set the opinions, and published them in bound volumes of appellate decisions, which were then sold to law firms and law libraries, usually, but not always, with editorial annotations. For part of this time period, there were in addition or in lieu of independently operating publishing firms that published reports of appellate court decisions, officially sanctioned private publishing companies that did so on a commissioned basis by the governmental entity whose decisions were published in officially sanctioned court reporting volumes, usually with less editorial annotation. There are reported cases going back hundreds of years before that in England and Wales, but mostly, the selection of cases that were reported was sporadic and opportunistic, rather than comprehensive in this time period. Also, some of the earliest English law case are recounted only in second hand reports of those decisions, rather than in verbatim transcripts of oral decisions of (or in the original verbatim written opinions of) the judge or lord making the decision. Sometimes these second hand accounts were the equivalent of personal notes of the barristers or other participants in the case, and sometimes these second hand accounts were the practical equivalent of newspaper accounts of the cases in question. But, at other times they were part of the official records of the court or lord making the decision. Record keeping in that era was somewhat irregular and inconsistent. Even when contemporaneous official records were made by the court deciding the cases in question, sometimes the original records have now been lost or destroyed. The courts and law firms then used these report of decided cases to authoritatively identify appellate court precedents, typically by reporter name, volume, and the page upon which the court decision appeared. Later on, other specialty commercial publications indexed instances in which one case cited to another case to facilitate determinations regarding whether old case precedents were still good law or had been overruled in part of in full, or questioned, by later cases. The publication of court opinions in electronic form first starts to appear in the 1970s or 1980s, initially in bulk "sneaker net" media usable only by firms with mainframe computers before widespread personal computer ownership and the widespread availability of Internet access made individual court opinions in electronic form widely available on a case by case basis. Electronic form court opinion publication had become ubiquitous by sometimes around the first decade of the 21st century, with non-proprietary government sponsored neutral citation forms appearing widely five to ten years after and only becoming the majority practice in the second decade of the 21st century. The dead tree paper form court reporters continue to be published (now from electronic rather than paper originals) in almost all jurisdictions where they were historically published. Trial court case opinions were historically not distributed at all except by interested parties obtaining copies from the court clerk or the party that served the documents upon them, and except for sporadically collected exceptional trial court rulings, this continued to be the norm until sometime in the last twenty-five years of the 20th century or the early 21st century. would a Willesden County Court archive only have case decisions that were issued in that facility / court division? And how far back would they go? There are two separate judicial branch operations to consider. The court clerk has an official archive of case decisions only from that facility/court division/court clerk's office administrative unit, historically, in part form, then in microfiche, and now in electronic form spanning various kinds of media over the late 20th century and early 21st century as these technologies developed. I am not familiar with the record retention practices of different courts and archival indexes often note that significant subsets of records in particular places that were once kept in paper form have been destroyed by mishaps such as fires, floods, riots, building collapses, mold, paper decay, and plumbing emergencies, so in any particular location the extent of the archive's completeness varies. There was a major effort to preserve old records on michofiche when that technology was invented, and some kinds of records were maintained on papers and in conditions better suited to document preservation than others. Of course, reporters decisions survived better since there were many copies of each one and so some editions of each volume of case reporters usually survived and some were republished from time to time. does a court automatically receive copies of all other regional courts of the same and higher degree of superiority's decisions periodically? A separate operation of many courts is the maintenance of a law library for use by the judges of the court and also by law firms and lawyers and members of the public who could not afford to have their own law libraries. This operation would typically order all of the case reporters, statutory compilations, legal treatises, and other legal authorities that the particular law library's users would need and that it could afford within its budget. Typically, regional law libraries were serviceable and sufficient but not on a par with the best university law libraries and the law libraries of the most important appellate courts. Often volumes in law libraries had to be used on the premises and could not be removed from the library room or building which was usually in or near either a court house or a university or was a part of a public library. Caveat All dates in this answer are approximate.

case-reports,court,legal-citation

law-stackexchange-questions-answers.json

law-stackexchange-qa-50944

How does the law on "pain and suffering" differ in the UK and US?

In the UK, if someone makes a statement that "he is a cripple," or "she has problems holding her water at night," those are potential causes of action if they cause distress, even if the statement is true. (Truth is not an absolute defense.) In the U.S. if I break your antique vase, I could be liable for at least the market value of the vase. But if it has sentimental value because you inherited it from your grandmother, I could be liable for even more, based on pain and suffering. But I couldn't be sued for libelling your dead grandmother. How do these rules differ? Is it that in the UK, there could be "pain and suffering" independently of another tort, while in the U.S. it could take place only in connection with some other offense (e.g. the broken vase)?

Is it that in the UK, there could be "pain and suffering" independently of another tort, while in the U.S. it could take place only in connection with some other offense (e.g. the broken vase)? The whole question is too much for me to take on (there are significant differences in the law of non-economic damages between the U.K. and the U.S. beyond those discussed below), but I'll answer this part. The short answer is "yes," there could be "pain and suffering" awards (more often and more accurately called "non-economic damages" awards) in the U.S. that are not in connection with another offense that cause physical harm to the person bringing the claim or their property, even though defamation liability is more narrow in the U.S. than in the U.K. Non-economic damages may include pain, emotional anguish, humiliation, reputational damage, loss of enjoyment of activities, or worsening of prior injuries; in some states, they are referred to as pain and suffering. The U.S. recognizes a common law tort known as "intentional infliction of emotional distress" a.k.a. "outrageous conduct", that can award damages for purely non-economic harm that is independent of any physical harm to anyone. This has to be a course of conduct intentionally calculated to utterly crush someone emotionally without justification, generally through some form of humiliation. The nature of the conduct must far exceed what would ordinarily be considered harassment or taunting. There is also a closely related concept called a prima facie tort which involves intentional and unjustified harm to others not covered by another recognized tort, which is much less widely recognized. The U.S. also recognizes a common law tort known as "negligent infliction of emotional distress" which applies to allow a non-economic damages recovery from someone in the "zone of danger" of an accident that causes physical injury to another person or to property. The classic case would be brought by a parent holding hands with a child whose child is hit by a car and grievously injured or killed right before their eyes. This tort is not very common and not accepted in all jurisdictions. Closely related to negligent infliction of emotional distress damages are awards for loss of consortium, which is a claim for non-economic harm caused to a spouse by tortious conduct that injures the spouse by the non-injured spouse directly against the wrong doer by the non-injured spouse (in some states a parent can also make a loss of consortium claim with regard to a child). Also somewhat related is the concept of a wrongful death lawsuit, which is typically vested by statute in the next of kin of the person wrongfully killed, rather than in the decedent's probate estate, and can include both economic and non-economic damages. Often in a wrongful death case, rather than seeking economic damages, one can seek a flat compensatory amount fixed by statute called a "solatium" that is primarily representative of non-economic harm to the next of kin. There are also other U.S. torts which can give rise to non-economic damages without physical or economic harm to person or physical property. Non-economic damages without physical harm are frequently awarded in civil rights lawsuits brought against someone acting under the color of law pursuant to 42 U.S.C. § 1983 even when the right violated, such as a right to vote, or a right to use public accommodations in a manner not subject to discrimination, does not involve damage to person or property. Similarly, a violation of a discrimination or sexual harassment statutes, such as the federal Civil Rights Act of 1964, by a private individual can give rise to a claim for non-economic damages even without proof of economic damages. The U.S. also recognizes some privacy torts (not all of which are recognized in every state) and claims for breaches of fiduciary duty, for which there may be a cause of action for non-economic damages even in the absence of proven economic damage. For example, if an attorney breaches his duty of confidentiality to publicly reveal highly embarrassing personal facts about you, you could sue the attorney for non-economic damages. Claims for nuisance (e.g. from a neighbor's noisy or smelly conduct on the neighbor's own property) can give rise to claims for non-economic damage, and while they would often include claims for related economic damage (often quantified in the form of lost rental value of property), this isn't always required. Most U.S. states have abolished their heart balm torts such as alienation of affection (i.e. causing someone to divorce their spouse), "criminal conversion" (i.e. adultery), and also torts related to broken engagements to marry, but a few states, most notably, North Carolina, retain them and essentially allow private adultery lawsuits for both economic and non-economic harm (or one without the other). Claims for libel per se, which involve a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis) or dishonesty in business, can give rise to a claim for non-economic damages, in the absence of any proof of specific economic harm arising from the related damage to your reputation. The U.S. does not recognize defamation lawsuits based upon truthful statements, even though, under many historical criminal defamation statutes, statements tending to harm the reputations of the dead, and statements calling attentions to the natural deficiencies of the living (i.e. mocking mentally or physically disabled people) were actionable. Under U.S. law, freedom of speech protects those statements.

united-kingdom,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-47489

Which EU-related jurisdictions in Americas apply the GDPR regulation?

According to some information, a person will need to be a resident in an EU country in order to be protected by the GDPR regulation. Are there jurisdictions in North or South America where residency similarly conveys GDPR protection for EU citizens?

There are various bits of France which are not actually in Europe. Several of them are in the Caribbean, and French Guiana is in South America. See Wikipedia. These are parts of the EU (although not part of Schengen or the EU VAT Area), so residency will grant protection under GDPR.

gdpr

law-stackexchange-questions-answers.json

law-stackexchange-qa-1571

Implicit lottery: what if there is no prize?

I often receive emails asking me to do something in exchange of potentially getting some prize (e.g. Amazon Gift Card). Example 1: A great bonus is that if you download Riffiti in the next 48 hours from receiving this email, you could win a $100 Amazon Gift Card. Example 2: Attend the session this Thursday 3pm-5pm in 32-124. Refreshments will be served. You can also win a couple giftcards by responding via their google doc! Example 3: The study involves completing a 20-45 minute online questionnaire. You will have the opportunity to enter a lottery to win a $250 Amazon.com gift card. Example 4: Teams that come up with the best plan will be entered into a lottery to win an extra $20 Amazon gift card. Example 5: Bring Your Own Mug and Win a $10 Gift Card from Flour - Everyone who brings their own mug and helps to reduce waste can enter a raffle for a $10 flour gift card. Example 6: If you fill this form, we'll enter you in raffle for several $50 Amazon gift cards. Are senders obliged to actually gave the announced prize to someone? Or can they simply have no prize at all? Assumes that everything happens in the United States, and more specifically in California or in Massachusetts.

In California, this is automatically a violation of section 17539.1(a)(7) of the Business and Professions Code: (a) The following unfair acts or practices undertaken by, or omissions of, any person in the operation of any contest or sweepstakes are prohibited: (7) Failing to award and distribute all prizes of the value and type represented.

lotteries,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-3373

Can I be arrested if I'm not home and there are drugs in my room?

If I am out somewhere, and say my door is open and there are drugs in plain view, if a cop was in the house could I be arrested even though I'm not there?

In the US, there is a co-occupant consent rule (United States v. Matlock, 415 U.S. 164 (1974)). If a co-occupant of your house consented to a search, anything in plain view from the common areas is useable as justification for probable cause (for arrest) and admissible as evidence at trial.

criminal-law

law-stackexchange-questions-answers.json

law-stackexchange-qa-81965

Would sentient aliens be legal persons?

Suppose some sentient aliens figure out how to receive our radio and TV broadcasts. They eventually decode the English language, and a few of them study it enough to be fluent. They land somewhere in the United States, perfectly capable of conversing with humans. Are they legal persons? Since they obviously aren't citizens, are they illegal "aliens" (in the legal sense of the word "alien")? If a person stole from one of the aliens, could the alien sue?

Quite possibly such hypothetical non-human intelligent beings would be treated as legal persons, but one cannot be sure in advance. If when humans first encountered such beings, they routinely treated them as persons, that might well influence any later legal treatment. If, on the other hand, humans initial treated such beings as "dumb animals". Eventually, there would no doubt have to be new law passed, or a court ruling on how existing law was to be applied to such beings, rt quite possibly both. One wouldhope that the law would treat such beings as fully human, but such past cases as Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) make tyhst less assuted than one might wish.

united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-28111

Can you be legally compelled to disclose your password in a criminal investigation?

Let's say you use encryption on your computer, and you've been arrested. The police believe there is evidence on your computer, and have seized the computer via a warrant. The police cannot extract any information because your hard drive is encrypted. The police were unable to find the password via other means (such as written notes). You are aware that there is incriminating evidence on your hard drive, so you do not give up the password willingly. Can the police get a court order or otherwise legally compel you to provide the password to decrypt your hard drive? (I imagine this would implicate your right to refuse to answer questions that could incriminate yourself.)

This is a super complex question and no one really knows the answer yet. Orin Kerr is probably the leading scholar on this question, and he generally argues that forced decryption of one's own device is not a Fifth Amendment violation. As I understand it (and oversimplifying by a lot), one key piece of his position is that requiring you to put in your password is a statement about your knowledge of the password itself, not about the contents of the machine into which you are entering it. And because your knowledge of the password for your own devices is presumed, an exception for "foregone conclusions" would leave this compulsion unprotected by the Fifth Amendment. You can read one of his explanations here. The Eleventh Circuit disagreed with that approach, but a California judge recently reached a conclusion similar to Kerr's. This will probably by a question for SCOTUS before too long.

criminal-law,encryption,fifth-amendment

law-stackexchange-questions-answers.json

law-stackexchange-qa-84377

Is using the word Roleplay with overseas minor can land me in jail

Hypothetical Question: I am using an adult app (18+) for roleplaying. A girl from South Africa joined. She told her age is 14. I asked "wanna do roleplay?" She also kept her category in Roleplay. Then she said I'm underage you creep" and then closed the chat. We didn't say anything nor did we send any pictures. Is it illegal? Will I be jailed over just saying "wanna do roleplay". I am 19 year old. Is this chatting with a minor is illegal?

Is this chatting with a minor is illegal? Possibly, as a hypothetical1, under section 67, Information Technology Act 2000: Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees. Whether the question "wanna do roleplay?" is enough - on its own - to demonstrate an offence has been committed will depend on the court... ...having regard to all relevant circumstances... 1But if all that was said and done is as per the OP, it's highly unlikely this would go anywhere near the court in real life, especially as de minimis non curat lex.

criminal-law,india,international,minor,sexual-offences

law-stackexchange-questions-answers.json

law-stackexchange-qa-91662

Can Disney claim Florida has passed and is pursuing Bills of Attainder?

The State of Florida seems to be in a protracted battle with Disney. The state has legislated in the direction of Disney, and continues to do so (https://www.wfla.com/news/florida/desantis-speaking-at-reedy-creek-administration-building/). Despite the fact that there might be real arguments that such legislation is for the well-being of the state, the dialog surrounding Reedy Creek issues, including statements coming out of the State, seems to provide a solid argument that the motivation for such legislation is to punish Disney for voicing objection to recent policy decisions in the State. Assuming that as a given, for the moment (though that's, at the least, arguable), doesn't that provide Disney with the argument that these are Bills of Attainder?

Legislatures are free to declare illegal whatever they want (within Constitutional limitations, obviously). A bill of attainder declares a defendant guilty without trial. Targeting a company with laws isn't particularly noteworthy, this is done all the time, usually to the company's benefit. Nothing Florida is doing would be considered a bill of attainder. Special conditions that have been set by the state are always available to be re-legislated.

attainder,united-states

law-stackexchange-questions-answers.json

law-stackexchange-qa-30484

How do you draft an NDA for sharing a startup idea and do you need a lawyer to legitimize it?

I am at the stage where I want to expand my software startup, however, I do not know the proper procedure to do so. I was wondering how to create a non disclosure agreement and more importantly if you need a lawyer in order to legitimize it. I also would like to know what you would do if someone broke your NDA.

A lawyer doesn't "legitimize" documents, it is no more or less an NDA because a lawyer looked at it than if one had not. I have created and signed many NDA's that I did not have reviewed by legal counsel. What a lawyer will do is to understand your situation, what you want to protect yourself against and review/modify the document to align the law and your intent. So what you can do is to write down what you want to protect yourself against, who you are protecting yourself from, and then find an NDA that comes close to outlining what you want. You then take that document and intentions to a lawyer and ask them to review it. As far as what to do if somebody breaks an NDA, that should be outlined in the NDA. If you have problems quantifying your loss or potential loss, then a court may find it difficult to award some amount in your favor. Part of your NDA may include the repercussions, the enforce-ability of which will depend on your jurisdiction. If you suspect your NDA has been violated, take the NDA (signed) and the evidence to a lawyer, they will advise you of the next steps.

business,intellectual-property,non-disclosure

law-stackexchange-questions-answers.json

law-stackexchange-qa-47587

Why do buses not require passengers to wear seatbelts?

Lately I have been wondering why in the UK public buses do not require that the passengers wear a seat belt? In-fact, in the UK it is my understanding that no public buses actually have seat belts. I also have the same understanding in regards to private coaches. While most private coaches do come with seat belts as far as I'm aware you're not required to wear one. I find it strange since in a car you're required to wear a seat belt by law. It strikes me as odd that buses do not have the same requirements since this seems to imply that the bus is somehow safer or drivers are more qualified, yet bus accidents do happen! Is there any specific mention of this in any UK legislation?

Based on another Jurasdiction (Germany) the main criteria for when seat belt are not required seems to be that peaple are allowed to stand during transport The UK Guidance Seatbelts on urban buses of 2010 confirms this with: General requirements Since 1 October 2001, seat belts have been required to be installed in each forward and rearward facing seat in all new buses. The use of an approved and properly fitted restraint system can help prevent death or serious injury, not only by restraining the occupant from forward motion but also by preventing their ejection from the vehicle, particularly in accidents where the vehicle rolls over. The only exemption from this requirement is for buses that are designed for urban use with standing passengers. An exemption is permitted for these vehicles because they are typically used for short journeys, in both time and distance, undertaken at moderate speeds on urban routes. Although we are aware that vehicles equipped with seat belts are used by some operators for urban fare paying services, ultimately, it is for the operator to choose the type of vehicle used to provide a service. So for vehicles that contain seat belts, their usage is required. Commission Directive 96/36/EC of 17 June 1996 also makes a sole exception using this terminology: both urban use and standing passengers Whereas it is possible to improve the protection provided for passengers against ejection in case of an accident by requiring a minimum of lap belts with retractors for all forward and rear-facing seating positions in motor vehicle sof categories M2 and M3, and in the case of certain M2 vehicles lap and diagonal belts, as foreseen in Directive 90/628/EEC (except those vehicles which are designed for both urban use and standing passengers); Road Traffic Regulations (StVO) Section 21a Seat belts, wheelchair restraint systems, wheelchair user restraint systems, protective helmets (1) Mandatory seat belts must be worn while driving; this also applies to mandatory wheelchair restraint systems and mandatory wheelchair user restraint systems. This does not apply to (Deleted) People in door-to-door traffic if they have to leave their vehicle regularly at short intervals in the respective service or delivery district, Walking at walking pace such as reversing, driving in parking lots, Journeys in buses and coaches which are permitted to carry standing passengers, the operating staff in buses and coaches and the accompanying staff of groups in need of special care during the services that require leaving the seat, Passengers in buses and coaches with a gross vehicle weight of more than 3.5 t when leaving the seat for a short time. ... Sources: § 21a StVO Road Traffic Regulations strong text(in German) Guidance Seatbelts on urban buses - GOV.UK Seat belts in minibuses, coaches and other buses - GOV.UK The Road Vehicles (Construction and Use) (Amendment) Regulations 1986 Section 16 - Vehicles (Excise) Act 1971 Commission Directive 96/36/EC of 17 June 1996 adapting to technical progress Council Directive 77/541/EEC relating to safety belts and restraint systems of motor vehicles

traffic,united-kingdom

law-stackexchange-questions-answers.json

law-stackexchange-qa-31715

What is the point of signatures?

Signing a document to show your agreement is very common, but signatures seem very easy to forge. Nowadays, with electronic signatures it is trivial - some software doesn't even include your actual signature but pastes in your name in a cursive font. What good does it do to sign something, then? Couldn't you just claim you didn't sign anything afterwards?

The issues you describe have existed with signatures from the beginning of their use. There exists a tradeoff between ease of use and reliability, both of forgery and of people falsely claiming forgery. Originally, the closest thing to a signature was the use of seals and signet rings. While relatively hard to forge, it only showed that the possessor of the object agreed. Signatures, especially in cursive font, were developed later. They were in some ways easier to forge(you didn't need to get access to a physical device), but more difficult in others(the seal symbols tended to be used on everything and various improvements in technology had been made), and harder to falsely claim forgery(because most people can't alter their handwriting well). You were affixing your name to the document, indicating that you agreed. Often, the signatures were required to backed up with the signatures of other people as witnesses. They didn't have to agree to the document, they just had to agree to testify that you signed of your own free will. Because witnesses, especially trustworthy and independent witnesses, are hard to come by, some places have dropped that requirement, such as checks and signing a aper receipt when using a credit card. But for some important documents, certain jurisdictions still require witnesses, including large transactions (a document relating to a car insurance payout I recently had required a witness to confirm my signature) and marriages. However, with electronic media, the point of a signature is more to indicate deliberate acceptance of terms, with verification of an individual being left to other processes (e.g. IP address, MAC address, linkage to a specific email account, etc.), so forgery is less of an issue. I have also seen "signatures" amount to checkboxes and "I agree" buttons. Generally, the higher the stakes and "more legal" the agreement, the more likely to these have been the "typed signatures" that you describe, but this seems to be decreasing in frequency, suggesting that its purpose was to stop gap a hole in legal acceptance by judges/courts/laws with regards to electronic communications. Addendum: It should also note that the replacement of seals by signatures is not universal; for instance in Japan, seals are still used over signatures in the majority of cases.

signature

law-stackexchange-questions-answers.json

law-stackexchange-qa-15073

Would these two invoices be classed as the same?

Would these 2 invoices sent from the same limited company be classed as the same invoice (my) Company name: XYZ Invoice number: 185 date sent: middle of july in the footer was XYZ trading as ABC and then (My) Company Name: ABC date sent: end of October Invoice Number: 185 client is saying that since invoice number 185 to XYZ trading as ABC was paid that makes invoice number 185 from ABC null and void, as they have proof of paying the invoice number 185

If you got one set of goods that you need to pay for, and you get two invoices, then you pay one invoice. Whether the two invoices have the same number or not doesn't matter. If you got two sets of goods that you need to pay for, then you pay twice. If the sending company makes a mistake sending you two invoices with the same invoice number, you may refuse to pay the invoice, in which case you will have to pay the next, corrected, invoice. In the UK and possibly other places, invoice numbers must be sequential. You can start at any number when you start the business (your first invoice can be number 1 or number 3,867 if you like), but further invoices must be sequential. If you send invoices 3,867 and 3,869 and there is no invoice 3,868 then you will have a lot of explaining to do to the tax office.

business,contract-law,united-kingdom

law-stackexchange-questions-answers.json

law-stackexchange-qa-22474

Ticket Seller's Liability

I bought four tickets to a concert on craigslist. Then I sold two of them on stubhub. I later learned the tickets might be fake. I immediately notified stubhub. I was told seller's agreement is I am liable for 40% of what I earned on sale or full replacement cost (based on market rates) for new tickets, which would be double what I made on sale. I sold in good faith, not knowing they might be fakes, so is there anything that protects me from having to pay more money than I earned? I will happily refund the entire amount I was paid. Thanks.

No. As also explained in a comment, your liability is for breach of a warranty in a contract that the tickets are real. Contractual liability is imposed without regard to fault or good faith. If you breach it, you have legal liability, even if you had the best intentions. You could probably not be sued for fraud or negligent misrepresentation in these circumstances (those are torts), and you could be forced to return what you received even in the absence of a contract under restitution/unjust enrichment principles. But, breach of contract liability can be broader than tort or restitution liability and it is in this case. Of course, you would have a right to sue the person who sold you the fake tickets for what you lost from stubhub either on a tort or unjust enrichment theory.

contract-law,internet,liability,terms-of-service

law-stackexchange-questions-answers.json

law-stackexchange-qa-22793

GDPR Legislation and user invites by email

I want to understand what the implications are for user emails with the onset of GDPR. It's a bit of a strange question but here is the scenario. We run a Software as a Service platform when a user can invite other users to a team. They do this by email, at which point we have a user's "personal information" in the form of their email and we have issued them an email invite. We have to keep the email address on record for a period of time, say 7 days, for that invite to be accepted at which point we delete it if no action has been taken. I understand the restrictions on me in terms of not marketing to this email address etc. I want to understand if I am even allowed to send the invite email in the first place. That is to say, if someone hasn't explicitly given me their email address, am I allowed to use it. Logic would indicate that this should be fine as it really makes the user experience of inviting people very poor, however, the question has been asked by a member of my team and so I thought I'd seek some clarity.

I'm not entirely sure why you have to store the data of the invited user? You can simply hash the email address. Hashes are meaningless without the original input so that would allow you to store the data. Sending email means that you're processing personal data. In your use case it would fall under Art 6 (f): Legitimate Interest. (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. I do advice you to also follow these guidelines in the submission of the email: https://sendgrid.com/docs/Classroom/Deliver/Address_Lists/peer_initiated_email_invitation_requirements.html

data-protection,email,gdpr,united-kingdom

law-stackexchange-questions-answers.json

law-stackexchange-qa-51901

HOA meetings transcripts

Florida enables recording of HOA meetings: FLORIDA STATUTE 718.112(2)(C) states: Board of administration meetings.—Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail. A unit owner may tape record or videotape the meetings. The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items. The division shall adopt reasonable rules governing the tape recording and videotaping of the meeting. The association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements. If the meeting is done through the phone, to avoid problems caused by COVID-19. Does recording over the phone create a conflict with Florida wire-tapping laws? 934.03 Interception and disclosure of wire, oral, or electronic communications prohibited. Because Florida requires all parties to consent, if any party did not consent then this would veto the right of other owners to record. Which statute would take precedent and why? Ideally there would be relevant cases to provide precedent. Florida Statues: 934.03 Interception and disclosure of wire, oral, or electronic communications excerpt: (h) It shall **not** be unlawful under this section and ss. 934.04-934.09 for any person: 1. To intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public. 2. To intercept any radio communication which is transmitted: a. By any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress; b. By any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including any police or fire communications system, readily accessible to the general public; c. By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or d. By any marine or aeronautical communications system. 3. To engage in any conduct which: a. Is prohibited by s. 633 of the Communications Act of 1934; or b. Is excepted from the application of s. 705(a) of the Communications Act of 1934 by s. 705(b) of that act.

There is no provision in Florida law that states that by becoming a member of an HOA you have consented to anything regarding recording. What is dispositive in this case is standard in all-party consent states, that a person cannot veto open recording. If the person does not participate in the communication, they are not a party. If recording is announced and obvious, then they have no reasonable expectation of privacy. Smiley v. Florida summarizes the legal situation. Not all oral communications recorded without prior consentar subject to exclusion under the wiretap law. “The statute protects only those ‘oral communications’ uttered by a person exhibiting an expectation of privacy under circumstances reasonably justifying such an expectation.” State v. Inciarrano, 473 So. 2d 1272 This is because Fla. Stat. 930.02 says that “Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication. This is a very standard quirk of these laws, that the "reasonable expectation of privacy" condition is encoded via the definition of the communication, and not as an exception to the general law.

florida

law-stackexchange-questions-answers.json

law-stackexchange-qa-6535

What does it mean for a trial, or other hearing, that has been listed to be “vacated”?

What does it mean, and what are the implications of having a trial (or other hearing) vacated? Does it more strongly suggest that it will have been dispensed with finally, or that it will be rescheduled/relisted for another date? Importantly, I would like to know whether this means that the current case is ditched and the prosecution has to lay down charges to the court again from scratch?

What does it mean to have a case vacated? Two US Lawyers Say: The term "vacated" means that the Court on appeal reviewed the lower court's decision, found error, and overturned it. It means a reviewing court, usually a court of appeal, has determined that a trial court judgement should be vacated, or in other words, eliminated. Legal Dictionary Says: The term vacate has two common usages in the law. With respect to real property, to vacate the premises means to give up possession of the property and leave the area totally devoid of contents. To vacate a court order or judgment means to cancel it or render it null and void. Wikipedia Says: A vacated judgment makes a previous legal judgment legally void. A vacated judgment is usually the result of the judgment of an appellate court, which overturns, reverses, or sets aside the judgment of a lower court. An appellate court may also vacate its own decisions. A trial court may have the power under certain circumstances, usually involving fraud or lack of jurisdiction over the parties to a case, to vacate its own judgments. A vacated judgment may free the parties to civil litigation to re-litigate the issues subject to the vacated judgment. Here's What Dale M. Says: Therefore, pick your poison, do more research to determine the common definition in the context which it's applicable in your particular case, or ask your lawyer.

criminal-law,trial,united-kingdom

law-stackexchange-questions-answers.json

law-stackexchange-qa-88666

Why does the term "counsel" typically refer to barristers rather than solicitors?

It seems arbitrary that it seems to conventionally refer to one rather than the other, but is actually even more confusing that it refers to barristers rather than solicitors when one typically seeks advice from a solicitor by consulting them for their opinion of the legal position, and not from a barrister. By the time to instruct a barrister to appear in court on one's behalf, it seems that one is largely clear on one's position already and has rather to instruct the barrister on what they wish for them to represent to the court, rather than to seek their counsel. So, what is the basis for this nomenclatural convention?

The use of the word counsel for barristers has a long history. It was used in England before the modern legal profession developed. Baker, Counsellors and barristers: an historical study (1969) traces homo consiliarius back to the 13th century plea rolls: The sum of [a pleader or counsellor's] functions may be termed "counselling" in its widest sense, and the subject of the present study must be what the plea rolls call homo consiliarius, the counsellor. Even this compendious name can mislead. It eventually became synonymous with "barrister," in the sense of "jurisconsult," while some of the counselling came in fact to be done by attorneys and solicitors. Sense 8(a) of counsel (n.) in the OED ("A body of legal advisers, engaged in the direction or conduct of a cause") is dated back to the Confessio Amantis (1393): Help, that I hadde counseil here Upon the trouthe of my matere. Sense 8(b) ("A single legal adviser; a counsellor-at-law, advocate, or barrister") is first quoted in 1709, but seems also to cover sense 8(a)'s quotation of Greene's coney-catching pamphlets (1591), by distinguishing between counsel and attorney: [He] hath his mind so full of cares to see his counsell and to plie his Atorney. As barristers came to replace the serjeants at law, the association of counsel with barristers may have become entrenched with the appointment of Sir Francis Bacon as the first King's Counsel (1603). According to Holdsworth, A history of English law (1924), vol 6, p 472: It soon became clear that the king's attorney and solicitor could not by themselves do all the work which their office imposed upon them. It is to this cause that we must ascribe the rise of a body of "king's learned counsel," who are the ancestors of our modern king's counsel. It would seem from D'Ewes that a body of persons so designated was known at the very beginning of Elizabeth's reign [1558 – 1603].

barristers,england-and-wales,legal-terms

law-stackexchange-questions-answers.json

law-stackexchange-qa-53041

Is it common that a country has a law that supports additional taxing for national media?

An European country Slovenia (That small thing east of Italy) has a law that basically forces each household to pay additional tax each month for national radio-and-tv station. The amount is fixed to nearly 15€ per month regardless of household financial position. This is not about companies or public-like places such as pubs. By law a person or a family needs to pay this monthly fee regardless of actual usage of this service. A person or family may opt out of this by ensuring that they have no way of connecting to the national radio or television. So already owning a car or even a phone with internet capabilities is out of question. Is this common/normal? Does every (or most) country have such a law? This kind of law to me seems very dangerous and scary. In a way I feel like every year a new such law could be created and suddenly after 10 laws you pay 150€ per month additional tax regardless of your financial status and/or usage of services you are charged with extra. Just for more info (though I feel a bit weak with my English at this point): The law basically states that the institute for national radio and television may gather data from those paying for electricity. They are to use this list to demand payment. So basically each household needs to pay once per month. And to opt out there should be no technically possible solution to connect to radio or television at all.

Given that there are almost 200 countries on Earth and most people don't have any information about Lesotho (etc) it is impossible to say what the frequency of such taxes is. There are also many ways in which media-taxes are imposed, so it depends on which sub-class of taxes you're interested in. However, such taxes are by no means rare. Many countries impose a license requirement on televisions and / or radio: Albania, Austria, Bosnia, Croatia, Czechia, Denmark, France, Germany, Japan, Montenegro, South Korea, South Africa, UK and so on. It is also indirectly collected as a fee on electric bills in Greece, Italy, Portugal, Serbia, Pakistan, Turkey, Mauritius. In general, when broadcasting is state-supported, the state gets its money from taxes, so the case in Norway and Sweden seems to be that you pay a tax for broadcast, and it's just part of your taxes, just like in the US the local transit tax becomes part of your property tax. Note that I did not list a majority of the countries in the world, because I don't know about taxing and broadcasting in Lesotho (etc.). This page gives some information, but it's not authoritative or exhaustive.

tax-law

law-stackexchange-questions-answers.json

law-stackexchange-qa-25366

Validity of a Power of Attorney (PoA)

Assume that we have a private investment company (PIC) called "C". At time t, "C" has given a power of attorney (PoA) over one of its accounts to another entity "L", without power of substitution. If before time t, "L" had itself granted a PoA to a natural person "P", can "P" avail itself of the PoA given by "C" to "L"?

This would be an odd situation. It is also not clear from the circumstances whether Panama law would or would not apply to the case. Other possible jurisdictions that could apply would be the jurisdiction of organization of L, the domicile of C, the jurisdiction that is home to the financial institution where the PIC invests its funds, the jurisdictions where the powers of attorney, respectively were executed, the jurisdiction of the lawyer drafting these instruments, or the jurisdiction named in a choice of law clause in the relevant documents (which might not be uniform). As a practical matter, the law of the jurisdiction which provides a forum to resolve a dispute resolving the matter in question usually ends up applying, unless there are no facts that support that choice of law or there is a consistent contractual choice of law that calls for the law of another jurisdiction to apply. An entity can always act through its officers or managers, and usually, entities do not grant blanket powers of attorney to individuals as a result, instead, they usually appoint a natural person as an officer or director or manager of the company. An officer, director, or manager (or even employee for that matter) of L could clearly utilize the Power of Attorney naming entity L as an agent-in-fact of entity C (even if they were appointed after the Power of Attorney from C to L was executed). And, the provision barring "substitution" is probably not relevant because L would be the person acting under the power of attorney from C whether it was acting under the authority of a director or a manager or an officer or even someone with a power of attorney from L to act as L's attorney-in-fact. This said, usually the power of attorney naming P as attorney-in-fact for L, would not expressly including a power to act on behalf of L in situations where L is acting as a fiduciary for a third-party, and the default rule would usually be that a power of attorney that does not expressly grant such a power does not include such a power. Some jurisdictions would even flatly prohibit someone acting as an attorney-in-fact under a power of attorney to carry out the responsibilities of the principal in the fiduciary capacity (e.g. as an executor, guardian, conservator, custodian, trustee, or attorney-in-fact under a power of attorney). Also, to the extent that the law is ambiguous, the courts would generally look to the intent of the parties, which is not revealed in this thin set of facts. I don't have the resources available to me to determine what the law of Panama says with respect to this issue, and it also isn't clear from these thin facts, whether the law of Panama applies, so the difficult search isn't really justified.

contract-law,power-of-attorney

law-stackexchange-questions-answers.json

law-stackexchange-qa-5160

Did the University of Missouri protesters have a legal right to privacy on their protest site?

There was a recent altercation recently between media representatives and protesters at the University of Missouri. The protesters formed a human barrier around the camp, impeding free access to anyone. They also went as far as physically pushing away media representatives. The rationale, according to one Twitter account associated with the protest: “We ask for no media in the parameters so the place where people live, fellowship, and sleep can be protected from twisted insincere narratives,” a Twitter account associated with the activists later declared, adding that “it’s typically white media who don’t understand the importance of respecting black spaces.” Did they have any legal grounds to block access to the protest site, which is ostensibly a public space? Video of the altercation here: https://www.youtube.com/watch?v=1S3yMzEee18

In this specific case and location, the precise location of the incident was explicitly made a public space via state law not too long before this actual event. They therefore most certainly have no right to privacy. What is interesting to me though is the other side of this, does someone have the right to record others in public spaces, or is it simply not illegal? For instance if I non-destructively and non-violently "jam" your camera by shooting a low-power IR beam at your lens, have I abridged a legal right of yours? I don't think it would be illegal to do this. I am not even positive its against the 1st Amendment. The 1st Amendment relates only to the dissemination of information, not the collection of it. The Constitution doesn't seem to compel the gov't to make information available, or even to make things/events/spaces observable. The various "sunshine" laws after-all had to be enacted, it wasn't part of an interpretation of the 1st Amendment. To put a finer point on it, is recording events in public spaces legal or merely lawful?

freedom-of-speech,privacy

law-stackexchange-questions-answers.json

law-stackexchange-qa-21741

What constitutes "using a website" in Canada?

This is a disclaimer found on the Qt website. The "Read More" link doesn't contain any information about what exactly "using" the website involves, either. What do I have to do in order for my consent to the use of cookies on this website to be confirmed?

They sent a cookie with that message. If you connect to any site that is interested in that cookie it will request that your computer send that cookie, and your computer will comply unless you take steps to stop it. Following any link on the page including the "Read More" would likely involve sending the cookie back to them by default. Sending a cookie back seems something like consenting to using them.

canada

law-stackexchange-questions-answers.json

law-stackexchange-qa-2202

Am I allowed to use lethal force against some one who is lawfully threatening my life?

Following on this question: Am I allowed to kill a person threatening me? CA, USA What if you are the target of lethal force? In this case your own life is threatened, even though you created the situation that warranted the use of lethal force against you. So what if now the hostage-taker kills the guy who tried to stop him with lethal force. And after that the hostage-taker gives up. Would he be guilty "only" of the crime of hostage taking or would he be guilty of murder as well?

The "felony murder" doctrine, which applies in most of the U.S. (including California), holds criminals engaged in "dangerous felonies" responsible for any deaths that occur during the commission of such crimes. In the given example, the hostage taker and anyone who is an accessory to that aggravated assault would, if convicted, also be guilty of murder for deaths that occurred in connection with the incident, regardless of their intent.

california,murder

law-stackexchange-questions-answers.json

law-stackexchange-qa-34294

Organizational rights to access users' emails?

An administrator over the Google Apps (Gmail) account within my organization had some concerns about a user and discovered some problematic emails. The user was suspended and Google Apps access revoked. The user didn't really do anything illegal, but it was against organizational policy, etc. There is some question of legal liability that has arisen. The user who feels "violated" is now threatening that their account was accessed illegally and is saying he's looking into suing the administrator for getting into his email. Everything we've read seems to indicate that any kind of email server (even a service like Google Apps/Gmail) is not considered private and that you can't do anything (legal or otherwise) about someone like an administrator or account owner accessing it. Is this true?

If this is a company provided account it is the company’s not the user’s. The user has no reasonable expectation of privacy.

email,privacy

law-stackexchange-questions-answers.json

law-stackexchange-qa-42191

Is it illegal to withhold someone's passport and green card in California?

June 17, 2019 - My uncle's daughter is the petitioner in Beaumont California (father and daughter relationship). Before my uncle left the daughter's house, He asks for his Philippine passport and U.S. alien-green-card but the daughter didn't give my uncle's IDs. So my uncle left together with his brother to live permanently in Vallejo, California. How can my uncle get his passport and green card back? Update - July 06, 2019 My uncle and his brother went back to Beaumont and called a Police Officer to help out to get my uncle's personal ID's but my uncle's daughter didn't give back his ID's (Philippine passport, & Alien/green-card). Her reason to the police officer was since she was the petitioner, she is responsible for his dad (my uncle) and the only he can get it back his ID's is when he return's to the Philippines for good. Can we file in the city of Beaumont for small claims court to get his personal property back? What are the procedures to file? What forms do we need to use? My uncle is not fluent in English speaking, can we request a translator? Thank you in advance for all your help.

The green card should always be at hand Yeah, he can't do that. He needs a green card in his possession anytime he's not on private property. Obviously for instance leaving it in the gym locker while you're at the gym is ok, but no, you can't dash off to the grocery store without it, on the logic that it's "just in town". Just like I can't make a milk run without my driver's license. So this idea of dashing off on a 400 mile adventure, is Right Out. He should have absolutely refused to travel without the documents in hand. If they say "get off the property or we'll call the cops", then tell the cops "I can't leave without my passport/green card" which the cops will back up, because they know the law and they know how trafficking works. The right to strut around the USA without any ID at all is reserved for US citizens only, and even that is being stripped away by ever-changing laws. Those documents are someone else's property The Green Card is the property of the USA and is not hers to steal. The passport is the property of the Philippine government and is not hers to steal. She didn't take your stuff, she took theirs. So she is guilty of a Federal crime, and the long arm of Philippine law may have an "opinion" on the matter also. Of course, most people don't think of it that way. They think your ID is your property so they think they're only messing with you. I would absolutely, positively report theft of the passport to the Philippine consulate. (Or rather, just report a missing passport, and be free about explaining the circumstances). One might hope that a phone call to consular staff might scare her straight, and get her to send it along. Most likely the green card would be in there also. Or, he could pay the fees to have a replacement passport issued. However the important one is the Green Card, since that establishes your right to be in the USA. On that one, you must consult an immigration lawyer and find out what you need to do. You certainly can get replacement green cards (not cheap), but admitting you don't have yours could cause you problems. People often seize documents for a reason And what makes me think that is, the uncle is a grown adult and the daughter's elder, and I thought that meant something in the Philippines. He is supposed to be more adult and more responsible. As such, he should be responsible for his own documents. Yet, this seems to be in the daughter's hands; this raises red flags. Maybe what she did was a harmless prank. But usually, taking an immigrant's documents is done for an entirely evil reason. Either they are forcing them into indentured servitude (also called "trafficking") - so if he is now in a situation where he is being extorted to do work in a worse situation or worse wage than he'd take willingly, then he is a trafficking victim, and the taking documents is part of the plot. The US has some legal protections for trafficking victims. Or they are "setting him up" for failure in some other way - for instance, out of idle malice, the niece might be planning to call immigration and report him as being illegal, hoping he'd be found with no green card, and deported for not having it.

immigration,passport

law-stackexchange-questions-answers.json

law-stackexchange-qa-86000

Anonymous manufacturers

Some manufacturers are not putting their names on their products: no contact numbers nor e-mail address for support to keep in touch with the manufacturer if something happens to your bought item(s). Is there any legal requirement for the manufacturer to make themself known?

Sort of. In the US, an example of a labeling requirement is 16 CFR Part 1101. In certain circumstances, there must be "public disclosure of information from which the identity of a manufacturer or private labeler of a product can be readily ascertained". Not everything is subject to this mandatory disclosure – it is driven by safety of consumer products. The Consumer Product Safety Commission summarizes some of the requirements here, and the strongest requirements are on "child products". A train car-load of pig iron would not be subject to such labeling (but then, you would probably know the manufacturer from the contract that you had to buy the iron). You can garner all of the safety regulations from 16 CFR Ch. II. 16 CFR Ch. I is the regulations established by the FTC under the Fair Packaging and Labeling Act. This requires all "consumer products" to have a label, especially Part 500. This only applies to commodities in a package or with a label (not hardware from a bin or bulk sim-cards). §500.5 is the section that says that you have to say who the manufacturer is.

business,consumer-protection,product-liability,warranty

law-stackexchange-questions-answers.json

law-stackexchange-qa-92501

Can a founder of a non-profit company in Germany (gGmbH) receive a salary?

Unlike a normal GmbH, a founder/partner (Gesellschafter) of a gemeinnützige GmbH (or a UG) may, according to the tax code, not receive any profits: Die Mitglieder oder Gesellschafter (Mitglieder im Sinne dieser Vorschriften) dürfen keine Gewinnanteile und in ihrer Eigenschaft als Mitglieder auch keine sonstigen Zuwendungen aus Mitteln der Körperschaft erhalten. -- § 55 Abs. 1 Nr. 1 Satz 2 AO Roughly translated: The members or partners (members within the meaning of these regulations) may not receive any portion of the profits and in their capacity as members, may not receive any other benefits from the funds of the corporation. However, people can be hired by a non-profit company and some websites indicate that Geschäftsführer (CEOs) can be paid, and even a Gesellschafter (partner) may be a CEO, for instance: Würde sich nun ein geschäftsführender Gesellschafter ein zu hohes Gehalt auszahlen, könnte das als verdeckte Gewinnausschüttung gewertet werden -- firma.de - Der Geschäftsführer einer gGmbH: Das müssen Sie wissen If a managing partner were to receive too high a salary, this could be interpreted as hidden profit distribution. Does the tax code above not explicitly exclude a partner from receiving a salary, even as a "CEO"?

The crucial phrase is "in ihrer Eigenschaft als Mitglieder". This restricts the prohibition on receiving benefits from the gGmbH to benefits you'd receive because you are a partner. It is common to have more than one legal relationship with a (g)GmbH, and being a CEO or otherwise employed by one is a typical situation. The snippet from the law does not restrict what benefits you may receive in your CEO role, just those in your partner role. The distinction is also relevant for regular GmbHs: If you are the CEO of a GmbH as well as a partner, then your salary as CEO is taxed differently than your share of the profits. But typically the tax on salary will be higher than the tax on profits, so there is little incentive here to overpay yourself.

germany,tax-law