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[ { "answer_id": 91719, "body": "<p>Yes, you can put <em>pretty much anything</em> you like into the co-op statutes.\nYou are actually interested in whether it <em>makes a difference</em>, though, whether the sheriff will come enforce a court order if it came to a trial.</p>\n<blockquote>\n<ul>\n<li>a rule that every owner must live in their property, or</li>\n<li>that everyone who owns a property in the building must also live in the building, or</li>\n</ul>\n</blockquote>\n<p>By virtue of indirect effect of basic rights (<em>mittelbarer Wirkung von Grundrechten</em>) a court will never issue an order mandating Diya to live in her apartment, Art. 11 GG.\nThe sheriff will not forcefully “shove” her into her apartment:\n“You <em>must</em> live here now!”</p>\n<blockquote>\n<ul>\n<li>that the majority of homes must be owner-occupied, or</li>\n</ul>\n</blockquote>\n<p>Similar, but Art. 2 I GG.\nVacancy of apartments is legal in Germany.</p>\n<blockquote>\n<ul>\n<li>that new rentals are not allowed, or</li>\n</ul>\n</blockquote>\n<p>As soon as Diya is recorded in the <em>Wohnungsgrundbuch</em> (apartment register) as the new owner of units B and C, she incontestably assumes the <em>role</em> of owner about said units.\nIf she rents them out despite the co-op statutes forbidding so, she does nothing illegal (that means breaking <em>state</em>/<em>federal</em> <em>law</em>).\nAfter all she <em>is</em> indeed the owner, so there is no fraud involved, § 263 Ⅰ StGB.</p>\n<p>The fact that she agreed to <em>not</em> rent out is a matter between Diya and the co-op.\n<em>No court</em> will evict the new tenants from units B and C, because Diya has breached <em>her</em> obligations.</p>\n<p>However, it <em>might</em> be a just cause to oust Diya from the co-op, § 17 WEG.\nYet still it requires <em>severe</em> grounds as it <em>essentially</em> means exercising eminent domain, Art. 14 Ⅲ GG.\nI tentatively claim it won’t work out as long as Diya pays her share in maintenance and the tenants chosen by Diya are well-behaved.</p>\n<blockquote>\n<ul>\n<li>something similar?</li>\n</ul>\n</blockquote>\n<p>You will need something that produces <em>evidence</em>.\n“Diya does not live in unit B” is a claim that needs corroboration in court.</p>\n<blockquote>\n<p>[…] restrict long-term rentals <em>in general</em>. […]</p>\n</blockquote>\n<p>Tenancy agreements are by default unlimited in time.\nShort-term rents are sort of “forbidden” except if <em>justified</em> by one of the reasons named in § 575 Ⅰ BGB.\nHence restricting long-term rentals borders on a blanket-ban on <em>all</em> rentals.</p>\n", "score": 3 }, { "answer_id": 91651, "body": "<p>It would seem this is not possible.</p>\n<p>From the <a href=\"https://www.gesetze-im-internet.de/woeigg/BJNR001750951.html#BJNR001750951BJNG000102360\" rel=\"nofollow noreferrer\">Gesetz über das Wohnungseigentum und das Dauerwohnrecht (Wohnungseigentumsgesetz - WEG)</a> (Act on the Ownership of Apartments and the Permanent Residential Right):</p>\n<blockquote>\n<p>§ 13 Rechte des Wohnungseigentümers aus dem Sondereigentum<br />\n(1) Jeder Wohnungseigentümer kann, soweit nicht das Gesetz entgegensteht, mit seinem Sondereigentum nach Belieben verfahren, insbesondere dieses bewohnen, vermieten, verpachten oder in sonstiger Weise nutzen, und andere von Einwirkungen ausschließen.</p>\n</blockquote>\n<p>From the <a href=\"https://www.gesetze-im-internet.de/englisch_woeigg/englisch_woeigg.html#p0050\" rel=\"nofollow noreferrer\">translation by Iyamide Mahdi in cooperation with the Language Service of the Federal Ministry of Justice</a> (based on an older version of the law, but this paragraph appears to not have changed):</p>\n<blockquote>\n<p>§ 13 Rights of the Apartment Owners<br />\n(1) Every apartment owner shall have the right, in the absence of conflicting laws or third party rights, to deal at will with the parts of the building forming part of the separately owned property and in particular to occupy them, rent them out, lease them out or use them in any other manner, and to exclude others from interfering.</p>\n</blockquote>\n<p>I am not a lawyer, but from my reading, it is not possible to restrict by declaration of division or community ordinance the rights of owners to rent out or lease out their property.</p>\n", "score": 0 } ]

[ "rental-property", "germany", "homeownership" ]

[ { "answer_id": 91716, "body": "<p>&quot;Object&quot; doesn't necessarily denote inanimacy. Consider the sentence <em>Alice likes Bob.</em> Grammatically, <em>Bob</em> is the object of the sentence. Apart from grammatical analysis, we can also say that Bob is the object of Alice's affection.</p>\n<p>In other words, a more general sense of <em>object</em> is &quot;something toward which something else is directed.&quot; (In modern idiomatic English, you will probably more likely hear <em>objective</em> used for that, especially when the object/objective is an abstract goal.)</p>\n<p>The concept at use here is defined in Black's law dictionary (second edition) under the phrase <em>objects of a power:</em></p>\n<blockquote>\n<p>Where property is settled subject to a power given to any person or persons to appoint the same among a limited class, the members of the class are called the &quot;objects&quot; of the power. Thus, if a parent has a power to appoint a fund among his children, the children are called the &quot;objects&quot; of the power.</p>\n</blockquote>\n<p>Analogous to Bob being the object of Alice's affection because the affection is directed toward Bob, the children in the example are the objects of the power because the power is applied to the children.</p>\n", "score": 1 } ]

[ "legal-terms", "trusts-and-estates" ]

[ { "answer_id": 55593, "body": "<p>In England and Wales, falsely suggesting a sale or discount price would be contrary to the Consumer Protection from Unfair Trading Regulations 2008.</p>\n<p><a href=\"https://www.hants.gov.uk/business/tradingstandards/consumeradvice/goodsandservices/pricinglaw\" rel=\"noreferrer\">https://www.hants.gov.uk/business/tradingstandards/consumeradvice/goodsandservices/pricinglaw</a></p>\n<blockquote>\n<p>practices that have been widely used by businesses for many years are\nnow deemed under the Guide as “less likely to comply” or, in other\nwords, more likely than not to be viewed as misleading and in breach\nof the CPUT Regulations.</p>\n<p>So what is now <strong>less likely to comply</strong>?</p>\n<ul>\n<li><p>Price establishing for 28-days within a 6-month period</p>\n</li>\n<li><p>Using a reference price that applied many months (at least more than 2 months) prior to the promotion.</p>\n</li>\n<li><p>Using a reference price when only a minimal amount of product actually sold at that price. There is now an expectation that a<br />\nbusiness will have sold a “significant number” of units at the higher\nprice in order to make a price comparison.</p>\n</li>\n</ul>\n</blockquote>\n<p><a href=\"https://marketinglaw.osborneclarke.com/advertising-regulation/no-more-28-day-rule-pricing-and-promotions-under-the-spotlight/\" rel=\"noreferrer\">https://marketinglaw.osborneclarke.com/advertising-regulation/no-more-28-day-rule-pricing-and-promotions-under-the-spotlight/</a></p>\n", "score": 6 } ]

[ "software", "licensing" ]

[ { "answer_id": 91713, "body": "<p>The &quot;rule which might exclude the merits of the case from consideration&quot; referred to in this passage is the rule that &quot;a sealed bond [was] incontrovertible evidence of the debt, and so payment was no defence.&quot;</p>\n<p>Strict application of a rule about &quot;incontrovertible evidence&quot; can result in absurdity when the proposition which is legally &quot;incontrovertible&quot; – in this case, that the debt evidenced by the sealed bond continued to exist – is actually false. <a href=\"https://en.wikipedia.org/wiki/Principle_of_explosion\" rel=\"nofollow noreferrer\">From falsehood, anything follows.</a></p>\n", "score": 1 } ]

[ "england-and-wales", "equity" ]

[ { "answer_id": 75304, "body": "<h2>The court can appoint a <a href=\"https://www.gov.uk/government/organisations/official-solicitor-and-public-trustee\" rel=\"nofollow noreferrer\">government trustee</a></h2>\n<p>All common law governments have an office called something like the Public Trustee that can act as a trustee of last resort. They work to a schedule of fees payable by the trust. Often they also provide their services commercially.</p>\n<p>They are often the same office that acts as the public guardian of “wards of the state”.</p>\n<p>They don’t have the right to refuse a court appointment.</p>\n<p>Of course, for an unsustainable trust, the court can order it would up instead and have the assets distributed to the beneficiaries.</p>\n", "score": 3 }, { "answer_id": 75320, "body": "<blockquote>\n<p>Can't a court fail to appoint a trustee? For example, can't a court\nfail to find anyone willing to be a trustee — particularly if the\ntrust appears too complicated or controversial, and/or the trustee\nwould not be recompensed enough?</p>\n</blockquote>\n<p>There are circumstances under which a court can find that a trust should be terminated prior to its express terms (beyond the Rule Against Perpetuities or its modern equivalent).</p>\n<p>For example, a court can terminate a trust because the amount of the trust estate is too small to be practical to manage in trust form.</p>\n<p>In order to decline to appoint a trustee, the court would, in practice, have to find valid grounds to dissolve the trust. The inability of the court or parties to locate anyone who would consent to serve as trustee (including the lack of eligibility to have a government trustee appointed) would be one factor among many that might be considered in a case like that.</p>\n<p>In the alternative, if there was one particular provision of the trust that made it impossible to find a trustee for an otherwise valid trust (e.g. compensation was limited to 1 British pound per year for a trust owning hundreds of profitable rental properties), the Court could exercise its powers in equity to reform the offending trust provision.</p>\n<p>But if a court declined to appoint a trustee for a viable trust just because it didn't want to do so, this would be an abuse of discretion which would be grounds for an appeal of that ruling that would very likely prevail.</p>\n<p>Also, while, absent grounds to dissolve the trust, a court has a duty to appoint a successor trustee, that doesn't mean that the court has a duty to do so immediately.</p>\n<p>For example, suppose that the trustee died, and the beneficiaries of the trust filed a petition with the appropriate court to have a successor trustee appointed, but due to a staffing shortage on the court and scheduling conflicts of the counsel for the parties in setting a hearing on the matter, a trustee can be appointed no sooner than seven months later. The court's delay would only rarely be something that could be raised in an interlocutory emergency request for a writ (or whatever it is called these days) insisting that the court take action immediately on the matter in order to prevent urgent harm.</p>\n", "score": 3 }, { "answer_id": 91709, "body": "<p>I am startled that Graham Virgo didn't expound this in his textbook! Perhaps you ought try another better textbook? <a href=\"https://www.bloomsbury.com/uk/trusts-law-9781137606723/\" rel=\"nofollow noreferrer\"><em>Trusts Law</em> (2017) by Charlie Webb &amp; Tim Akkouh</a> explain this at page 302, just like <a href=\"https://law.stackexchange.com/a/75304\">Dale M's answer</a>.</p>\n<blockquote>\n<p>The first question to be addressed concerns the role of trustee. In the first instance,\nthe choice of trustees is (in relation to intended trusts) a matter for the settlor. He\ncan decide how many trustees he would like and who they will be. The law imposes\nfew limitations on this freedom. One is that a child cannot act as trustee: section 20\nof the Law of Property Act 1925. Another is that, in respect of trusts of land, there\nmay be no more than four trustees: section 34 of the Trustee Act 1925. Those chosen\nby the settlor to act as trustees are free to refuse. However, if they do, this will not\nlead to the failure of the trust. <strong>The principle is that a trust will not fail for want of\na trustee and the court will ensure that another, willing trustee is appointed. In the\nlast resort, the trust will be taken on by the Public Trustee, a corporate trustee provided\nby the state. [emphasis added]</strong></p>\n</blockquote>\n", "score": 1 } ]

[ "england-and-wales" ]

[ { "answer_id": 91705, "body": "<p>The invalidity of laws that are inconsistent with the <em>Charter</em> is by virtue of section 52(1) of the <em>Constitution Act, 1982</em>, which came into force with the bulk of the <em>Charter</em>. It states that:</p>\n<blockquote>\n<p>The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.</p>\n</blockquote>\n<p>This might be read as immediately applying by its own force to render laws inconsistent with the <em>Charter</em> to be void. And language to this effect has been even used by the Court, saying that a provision inconsistent with the Constitution is &quot;invalid from the moment it is enacted&quot; (e.g. <em>Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2088/index.do\" rel=\"nofollow noreferrer\">2003 SCC 54</a>). But for Section 52 to have effect &quot;requires the exercise of judicial power to declare the law to be unconstitutional&quot; (<em>R. v. Sullivan</em>, <a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19390/index.do\" rel=\"nofollow noreferrer\">2022 SCC 19</a> at para. 54). That a law is inconsistent with the Constitution is &quot;revealed through litigation, specifically the judgment that declares the inoperability of the impugned law&quot; (<em>Sullivan</em> at para. 55). Section 52 has no practical effect aside from Courts or other decision-makers declining to apply law that is inconsistent with the Constitution. Whether a law was void as soon as the <em>Charter</em> was enacted is not really a meaningful question nor even detectable until a Court declares the law to be invalid.</p>\n<p>The Court has also clarified that declarations of invalidity are not necessarily retroactive to the moment of enactment (internal citations removed):</p>\n<blockquote>\n<p>[60] ... Mr. Sullivan points to the idea that an unconstitutional law is invalid from the moment it is enacted. But the strict enforcement of such a principle “cannot easily be reconciled with modern constitutional law”. Instead, it is subject to a number of exceptions and s. 52(1) must be read “in light of all constitutional principles”. In <em>Albashir</em>, my colleague Karakatsanis J. explained that declarations of unconstitutionality are generally retrospective, consistent with the notion that a law is unconstitutional from its enactment. However, other constitutional principles may require a purely prospective declaration of unconstitutionality or a suspended declaration. Similarly, the legal effect of a s. 52(1) declaration by a superior court must be defined with reference to constitutional supremacy, the rule of law, and federalism.</p>\n</blockquote>\n<p>I'll say this one more way: while it's true that some laws were immediately inconsistent with the <em>Charter</em>, s. 52(1) did not have any observable effect until a court declared such laws to be invalid.</p>\n", "score": 3 } ]

[ "canada" ]

[ { "answer_id": 91703, "body": "<h2>How is the Mental Health Act relevant?</h2>\n<p>It sets out the law relating to removing a person’s decision making ability over their own life and placing it in the hands of a guardian and, possibly, confine them to an institution against their will. The question is not whether a person is mentally ill, it’s whether that illness prevents them from making decisions about their life.</p>\n", "score": 3 } ]

[ "united-kingdom", "medical", "time-periods" ]

[ { "answer_id": 91394, "body": "<p>Mark the mail delivered as &quot;addressee unknown, return to sender&quot; and give it to the postal delivery person next time around. If the mail stops getting through, the neighbor will update their address.</p>\n", "score": 12 }, { "answer_id": 91402, "body": "<p>Based on the description, there is no legal relief available.</p>\n<p>To quote:</p>\n<blockquote>\n<p>a tort is breach of a non-contractual duty which has caused damage to\nthe plaintiff giving rise to a civil cause of action and for which\nremedy is available.</p>\n</blockquote>\n<p>To establish a tort, you need to establish that damage has occurred. Since mail is simply being delivered to the correct location despite the address, and you don't claim any harm having occurred, it does not sound like you have suffered any damage, hence no legal relief is available.</p>\n<hr />\n<p>You added:</p>\n<blockquote>\n<p>Documents which establish proof of address s.a. Utility Bills - telephone, energy, water service lose clarity. If so inclined, one may call this behaviour causing loss of value to the property simply because it amounts to squatting - if only on paper.</p>\n</blockquote>\n<p>But you need to establish damage having happened. In general you would need to have receipts proving the amount of money you have lost. You don't have a bill to pay for losing clarity, hence you can't prove that you've suffered any damage.</p>\n", "score": 12 }, { "answer_id": 91393, "body": "<h2>None</h2>\n<p>Unless the neighbour was a company (which, since they died, they can’t be), or they are giving out false information (like the address) with the intention of committing a crime like fraud.</p>\n<p>You could, perhaps, have sought an injunction for them to stop but it seems unlikely the court would grant it since it doesn’t appear to have caused you or anyone else any harm. In any event, any remedy you might have had ended with the person’s death.</p>\n", "score": 5 }, { "answer_id": 91444, "body": "<p>Firstly, the fact that utility bills can be used to prove title to the property is in itself a cause for worry, and can also constitute a cause of action by itself. This is due to the mere fact that these documents, can in fact, constitute proof of address, for example, for <a href=\"https://cleartax.in/s/gst-registration-documents-checklist\" rel=\"nofollow noreferrer\">GST registration</a> of the individual.</p>\n<p>Further, you can refer to the following court cases which have treated utility bills as proof of title on a balance of probabilities.</p>\n<ol>\n<li><a href=\"https://www.lawyerservices.in/Nileshkumar-Hiralal-Modi-Versus-Hitesh-Kaushi-Kumar-Modi-2012-07-17\" rel=\"nofollow noreferrer\">Nileshkumar Hiralal Modi v/s Hitesh Kaushi Kumar Modi</a> at paragraphs 10 and 15.</li>\n<li><a href=\"https://indiankanoon.org/doc/79916882/\" rel=\"nofollow noreferrer\">Rabari Nagjibhai Maneklal vs Nilamben Upendrabhai Shah</a> at paragraph 56</li>\n</ol>\n<p>Since you are the owner of property with presumably a perfect title, you are entitled to file a suit for <strong>mandatory injunction</strong> which will prevent the neighbour from using your address, there being &quot;<em>no standard to ascertain the actual damage caused</em>&quot;. This relief is provided under <a href=\"https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00009_196347_1517807320084&amp;sectionId=30253&amp;sectionno=38&amp;orderno=42\" rel=\"nofollow noreferrer\">Section 38 of the Specific Relief Act, 1963</a>.</p>\n<p>You must also bear in mind that, if the neighbour also claims title, you may have to contest the title to the suit property since this remedy will not then be available to you, and instead you will have to claim for declaratory relief first as per the guidelines by the Supreme Court of India in paragraph 13 of <a href=\"https://indiankanoon.org/doc/540361/\" rel=\"nofollow noreferrer\">Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs &amp; Ors</a></p>\n", "score": 1 } ]

[ "india", "tort" ]

[ { "answer_id": 91601, "body": "<p>The critical consideration is that the permitted left turn must be onto a one-way roadway in that direction. One is not permitted to perform a left turn which involves crossing traffic from the left, which would also imply that it is not a one-way roadway.</p>\n", "score": 24 }, { "answer_id": 91618, "body": "<p>Intersections have a number of possible paths through them. Where those possible paths cross is called a <a href=\"https://highways.dot.gov/public-roads/januaryfebruary-2003/reducing-points-conflict\" rel=\"nofollow noreferrer\">conflict point.</a></p>\n<p>Canada drives on the right. That means that right turns only do not entail any conflict points, except for a merge into the lane you are joining. This means you only have three things to watch for: pedestrians, moose, and oncoming traffic in that lane. That is the rationale behind allowing &quot;right on red&quot; - given the <em>de minimis</em> number of conflict points involved, the driver workload is reasonable.</p>\n<p>As a matter of policy they allow 2 lanes of right on red, but that's not your question.</p>\n<p><a href=\"https://i.stack.imgur.com/Ss4do.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/Ss4do.png\" alt=\"enter image description here\" /></a><br />\n<a href=\"https://www.fhwa.dot.gov/publications/research/safety/04091/10.cfm\" rel=\"nofollow noreferrer\">source</a></p>\n<p>A &quot;left on red&quot; isn't going to work as a general rule, because of a much larger number of conflict points, mostly the worst kind, <em>crossing</em> conflict points. Is this too much workload for the driver? Yes - we know that, because <em>that was the whole reason why the intersection was upgraded from stop signs to traffic lights in the first place!</em> So a <em>general</em> left on red is unworkable.</p>\n<p>However, one-way streets to the left create a special situation. From a one-way to a <em>leftward</em> one-way has no conflict points except the &quot;merging&quot; one discussed with right turns. As such, &quot;left on red&quot; is allowed there. This is the situation being discussed in your first link. The first link isn't referring to left turns onto two-way streets.</p>\n<p>This isn't relevant to this conversation, but from a two-way to a leftward one-way <em>arguably</em> creates this favorable situation again; while there are crossing conflict points, they are only with your own street's traffic which is held by the red light. As such, some jurisdictions allow left turns from a 2-way to a 1-way. <strong>Alberta is not one of them</strong>, probably due to moose :)</p>\n<p>The simplest way to think of this is, &quot;you are allowed to turn into the nearest lane to you, if you don't cross any lanes at all&quot;, and in Alberta 2 lanes can do this at once.</p>\n", "score": 10 } ]

[ "canada", "traffic", "alberta" ]

[ { "answer_id": 91697, "body": "<p>The modern rule in the UK is that copyright lasts until the end of the calendar year following 70 years after the death of the author. So if the author died in or later than 1953, it would be under copyright under this general rule.</p>\n<p>However, this wasn't always the rule and the museum speaks of a copyright revived in the 1990s. So I went down that rabbit hole of historical UK copyright legislation. I personally find it interesting, but it turned out to not be entirely determinative.</p>\n<p>It all turns on publication date and date of death of the artist, neither of which I can find, with the museum only stating the artist was <a href=\"https://collection.sciencemuseumgroup.org.uk/people/cp20240/s-r-wyatt\" rel=\"noreferrer\">active in the 1930s</a>. But even assuming the most favourable facts for this to still be copyright under a &quot;revived&quot; copyright, the latest date I can find for copyright to still remain under that regime is end of 2015.</p>\n<hr />\n<p>Per <em>Copyright Act <strong>1956</strong></em> <a href=\"https://www.legislation.gov.uk/ukpga/1956/74/section/3/enacted\" rel=\"noreferrer\">s. 3(4)(a)</a>:</p>\n<blockquote>\n<p>in the case of an engraving, if before the death of the author the engraving had not been published, the copyright shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which it is first published;</p>\n</blockquote>\n<p>For the fact pattern I'm outlining, we must assume the author died before publication. As for the engraving bit, s. 48 defines that lithographs are engravings, and while I am far from an expert in this field, skimming the <a href=\"https://en.wikipedia.org/wiki/Lithography\" rel=\"noreferrer\">Wikipedia article on lithography</a>, it does seem quite possible the poster could be a lithograph.</p>\n<p>I'll note here since you bring up who precisely would be the owner of the original copyright, that it does seem likely that the poster was a <a href=\"https://en.wikipedia.org/wiki/Work_for_hire\" rel=\"noreferrer\">work for hire</a>, following the provisions of <a href=\"https://www.legislation.gov.uk/ukpga/1956/74/section/4/enacted\" rel=\"noreferrer\">s. 4(2)</a>. As such, the copyright would have indeed ultimately transferred to British Rail.</p>\n<p>Jumping ahead a bit, the more precise year which the museum states is &quot;the 1990's&quot; is 1995 (we'll get to why). So in order for copyright to have first expired as per the museum's statement and the authors active years, we must assume a publication date between 1930-1945 (or thereabouts, I'm not being super careful in this answer about the months things happen in, so there may be accumulation of off-by-one errors).</p>\n<p>Because of those years, I now have to quickly address why the <em>Copyright Act <strong>1911</strong></em> isn't relevant. The transitional provisions outlined in the <a href=\"https://www.legislation.gov.uk/ukpga/1956/74/schedule/SEVENTH/enacted\" rel=\"noreferrer\">Seventh Schedule</a> reveal that only for photographs are the copyright duration provisions maintained from the 1911 Act.</p>\n<hr />\n<p>Now we can jump into the modern law, the <em>Copyright, Designs and Patents Act <strong>1988</strong></em> (<em>CDPA</em>). The transitional provision in the <a href=\"https://www.legislation.gov.uk/ukpga/1988/48/schedule/1/enacted\" rel=\"noreferrer\">Schedule 1</a> s. 12(2)(b) directly maintains the 1956 copyright duration in this case which given our possible publication years, would have led to copyright expiry sometime between 1980-1995.</p>\n<p>However, in 1995, the UK passed <em>The Duration of Copyright and Rights in Performances Regulations <strong>1995</strong></em>. This was in accordance with European legislation harmonizing copyright duration, in <em><a href=\"https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A31993L0098\" rel=\"noreferrer\">Directive 93/98/EEC</a></em> (itself since replaced by <em><a href=\"https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32006L0116\" rel=\"noreferrer\">Directive 2006/116/EC</a></em>).</p>\n<p><em>Side Note: 1995 is a peculiar year for copyrights in Europe due to that directive and so is exactly where I started my research for this answer, because it caused weird quirks for copyright terms in some countries in some cases.</em></p>\n<p>For the UK, <a href=\"https://www.legislation.gov.uk/uksi/1995/3297/regulation/5/made\" rel=\"noreferrer\">s. 5</a> of the regulation amended the <em>CDPA</em>, basically establishing the general European standard of copyrights expiring 70 years after the author's death.</p>\n<p>More importantly for our case though is the regulations own section explaining in which cases the new copyright term expires. In <a href=\"https://www.legislation.gov.uk/uksi/1995/3297/regulation/16/made\" rel=\"noreferrer\">s. 16</a>:</p>\n<blockquote>\n<p>The new provisions relating to duration of copyright apply— (a) [...] (b) [...] (c) [...] (d) to existing works in which copyright expired before 31st December 1995 but which were on 1st July 1995 protected in another EEA state under legislation relating to copyright or related rights.</p>\n</blockquote>\n<p>Now, I'm not going to go through and look at all the EEA contries legislation to confirm, but it seems incredibly likely that one of them would have had engravings protected for life+70 in 1995, given that's what Europe has now standardized on (since we're assuming pre-publication death for an author who was active in the 1930s).</p>\n<p>Notably, <a href=\"https://www.legislation.gov.uk/uksi/1995/3297/regulation/17/made\" rel=\"noreferrer\">s. 17</a> even defines cases of expired works re-entering copyright as &quot;revived copyright&quot;, matching the terminology the museum's statement used.</p>\n<p>It would have been great if the 1995 regulation explicitly spelled out the relationship with <em>CDPA</em>'s Schedule 1 s. 12, but in judicial interpretation, newer legislation takes priority, so the 1995 law would control.</p>\n<p><em>Note: The answer is getting long enough so I'm not going to fully research/cite this, but for regulations vs. legislation, we have a weird case of a regulation amending a statute. I'm fairly certain this is due to UK Acts passed for European Community membership elevating regulations to primary legislation when they are passed for compliance with European law.</em></p>\n<p>So given our assumed facts, the poster would have revived copyright per the 1995 Regulations. However, you may note (as I belatedly did after first posting this answer) that even given revived copyright, that revived copyright is still life+70. And the assumptions made for copyright revival under this clause requires a posthumous publication date of 1945 at the latest. This means at best any copyright under these particular circumstances would have expired in 2015.</p>\n<hr />\n<p>There is a bit of a middle ground here. If the poster is not a lithograph, or the publication was not posthumous, the work would have gained a life+50 term per aformentioned <em>Copyright Act 1956</em> <a href=\"https://www.legislation.gov.uk/ukpga/1956/74/section/3/enacted\" rel=\"noreferrer\">s. 3(4)</a>. But then for copyright to expire and be revived, we still have to assume a 1945 death date at the latest.</p>\n<p>Alternatively, instead of copyright revival, it could have gotten extended from life+50 to life+70 per the 1995 Regulations <a href=\"https://www.legislation.gov.uk/uksi/1995/3297/regulation/16/made\" rel=\"noreferrer\">s. 16(c)</a>. But because we are more than 20 years from 1995, it mathematically works out that it doesn't matter anymore and we can just work with the life+70 rule.</p>\n<p>A combination of 1995 Regulations s. 16(c) and posthumous publication though does actually give another reasonable way for the work to still be under copyright. If published in 1988 before the <em>CDPA</em> entered into force, it would have followed the cited 1956 rules of copyright expiring 50 years after publication. The 1995 Regulations s. 16(c) specifies that longer existing terms can continue. So that results in 2038 as a latest possible year through this method.</p>\n<hr />\n<p>In the end I think there are two or three reasonable interpretations:</p>\n<ul>\n<li><p>The museum is correct the work is under copyright, but incorrect about the reason.</p>\n<ul>\n<li>It's instead because the work is under copyright because the author died after 1953 (or is still living), or</li>\n<li>The work is still covered under the 50 years after posthumous publication rule for engravings established in the <em>Copyright Act 1956</em> (publication years 1973-1988 for copyright expiry at the end of calendar years 2023-2038).</li>\n</ul>\n</li>\n<li><p>The museum is correct that copyright was revived, but I can't find a way for this to be true and for the work to still be under copyright (with 2015 the latest year I can find for the given facts).</p>\n</li>\n</ul>\n<p>Note that this is my own reading of legislation, please take it with a grain of salt.</p>\n<hr />\n", "score": 17 } ]

[ "copyright", "united-kingdom" ]

[ { "answer_id": 91548, "body": "<p>Yes, the <a href=\"https://www.law.cornell.edu/constitution/amendmentxiv\" rel=\"noreferrer\">Fourteenth Amendment</a> makes a person born on U.S. soil a U.S. citizen at the moment of birth.</p>\n<blockquote>\n<p>All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.</p>\n</blockquote>\n<p>This is not a &quot;loophole,&quot; because it is exactly what the drafters of the Fourteenth Amendment were trying to achieve.</p>\n<p>There are narrow exceptions because of the &quot;subject to the jurisdiction thereof&quot; clause:</p>\n<blockquote>\n<p>The children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince. ... Thus the children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.</p>\n</blockquote>\n<p><a href=\"https://casetext.com/case/inglis-v-trustees-of-sailors-snug-harbour\" rel=\"noreferrer\"><em>Inglis v. Trustees of Sailor's Snug Harbour</em>, 28 U.S. 99, 155-56 (1830)</a>.</p>\n", "score": 33 }, { "answer_id": 91547, "body": "<p>Not a loophole but the intent of the constitution.</p>\n<blockquote>\n<p>Fourteenth Amendment, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.</p>\n</blockquote>\n<p>It might seem odd to you because many other countries are less generous with their citizenship.</p>\n<p>Do note the caveat. It means children born to foreign diplomats do not get automatic citizenship.</p>\n", "score": 18 }, { "answer_id": 91567, "body": "<p>Yes, children born in the territory of the United States automatically become U.S. citizens by the <a href=\"https://constitution.congress.gov/browse/amendment-14/#:%7E:text=No%20State%20shall%20make%20or,equal%20protection%20of%20the%20laws\" rel=\"noreferrer\">14th Amendment</a>.</p>\n<p>It is not a &quot;loophole&quot; in that, while the child is a U.S. citizen, their parents can still be deported.</p>\n<p>The U.S.-born children of immigrants cannot sponsor their parents for a green card until they are at least 21 years of age or older. <a href=\"https://www.uscis.gov/sites/default/files/document/guides/A1en.pdf\" rel=\"noreferrer\">Source</a></p>\n<blockquote>\n<p>As a citizen of the United States, you may help a relative become\na lawful permanent resident of the United States by obtaining what\nis often referred to as a “Green Card.” To do so, you need to sponsor\nyour relative and be able to prove that you have enough income\nor assets to support your relative(s) when they come to the United\nStates.</p>\n</blockquote>\n<p>If eventually granted a green card, the parents must be a permanent resident for five years before they can apply for naturalization <strong>or</strong> be a permanent resident for at least 3 years and married to a US citizen (who is <a href=\"https://en.wikipedia.org/wiki/Legality_of_incest_in_the_United_States#:%7E:text=No%20person%20shall%20marry%20his,is%20not%20a%20criminal%20offense.\" rel=\"noreferrer\">not your descendant</a>). <a href=\"https://www.uscis.gov/forms/uscis-early-filing-calculator#:%7E:text=You%20may%20file%20Form%20N,married%20to%20a%20US%20citizen.\" rel=\"noreferrer\">Source</a></p>\n<p>A common (derogatory) term for this is &quot;Anchor Baby&quot;.</p>\n", "score": 10 }, { "answer_id": 91574, "body": "<p>Unfortunately yes. My daughter did not have the choice and became a citizen of this country. Now 30 years later she has lots of problems because of that citizenship. There is an association called Accidental Americans working for those citizens who do not want being citizens of the US. Check out the wiki page for Accidental Americans. Repudiating this citizenship is not easy and quite expensive.</p>\n", "score": 8 }, { "answer_id": 91559, "body": "<p>That all those born in the US having citizenship being a constitutional right is generally based on the Fourteenth Amendment, which says &quot;All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.&quot; There is some debate as to what exactly the &quot;subject to the jurisdiction thereof&quot; qualification means. It has been interpreted as not granting citizenship to the children of parents who have diplomatic immunity, and there are some of the position that it also requires the parents' presence in the US to be legal, and/or open and notorious, but that view has little support in the legal community. There is also the issue of what counts as &quot;the United States&quot;. While people in America Samoa are US nationals, courts have denied them citizenship. <a href=\"https://en.wikipedia.org/wiki/American_Samoan_citizenship_and_nationality#Federal_citizenship_controversy_(1960%E2%80%93present)\" rel=\"noreferrer\">https://en.wikipedia.org/wiki/American_Samoan_citizenship_and_nationality#Federal_citizenship_controversy_(1960%E2%80%93present)</a></p>\n<p>There are indeed people who travel to the US late in their pregnancy specifically to give birth in the US and thus have their children be US citizens. See <a href=\"https://en.wikipedia.org/wiki/Birth_tourism\" rel=\"noreferrer\">https://en.wikipedia.org/wiki/Birth_tourism</a> . There is also the term &quot;anchor baby&quot;, which is generally used in a derogatory manner to refer to children of immigrants who were born in the US (though not necessarily implying that the parents immigrated for the purpose of having the child in the US).</p>\n", "score": 7 }, { "answer_id": 91597, "body": "<p>IANAL, and this has already been well answered legally, but I wanted to give a personal example for historical context.</p>\n<p>My aunt's parents emigrated to the U.S. from Italy in 1934, having delivered their oldest son on the ship while crossing the Atlantic from Italy, and my aunt was born a year later (1935) in New Castle PA. Her older brother was thus not born in the U.S. and had to apply for citizenship years later. My aunt, on the other hand, was a citizen by birth, <em>even though her parents had not yet become citizens themselves</em> and never had to apply for it.</p>\n<p>My point being that this is nothing new or special in America, it has been going on for hundreds of years and has applied to many hundreds of thousands of citizens, new-born to parents who were not citizens.</p>\n", "score": 3 }, { "answer_id": 94748, "body": "<p>It seems worth mentioning that birthright citizenship in the United States is part of the aftermath of the Civil War of 1861–1861. Part of the outcome of the war was the abolition of slavery. Earlier the Supreme Court had ruled in the case of Scott v. Sandford that negroes are not citizens, regardless of whether they are enslaved or not. Everything about the status of persons of African descent was a big issue in the aftermath of the war. Before that, different states had different laws about who was a citizen, although there were also federal naturalization laws. The 14th Amendment was intended to supersede much of that.</p>\n", "score": 2 } ]

[ "united-states", "citizenship" ]

[ { "answer_id": 91414, "body": "<p><a href=\"https://supreme.justia.com/cases/federal/us/149/304/\" rel=\"nofollow noreferrer\">Nix v. Hedden</a>, 149 U.S. 304 (1893) is a famous &quot;error of fact&quot; case in the US. The situation was that there was an import tariff imposed on &quot;vegetables in their natural state&quot; brought in from outside the US, but not on &quot;Fruits, green, ripe, or dried, not specially enumerated or provided for in this act&quot; which were on a &quot;free&quot; list. Since imported tomatoes were taxed, it was said that tomatoes are fruits and not vegetables. The court ruled that <em>for legal purposes</em> the terms &quot;vegetable&quot; and &quot;fruit&quot; have their ordinary meaning, and are not held to a possibly variable scientific definition.</p>\n<p>Definitions were read from Webster's Dictionary, Worcester's Dictionary and the Imperial Dictionary, and witnesses with decades of experience in the produce trade were called who testified as to whether the words had &quot;any special meaning in trade or commerce, different from those read&quot;. Dictionary entries were read regarding the definition of the words pea, eggplant, cucumber, squash, pepper, potato, turnip, parsnip, cauliflower and so on.</p>\n<p>The court reasoned as follows based on the evidence. First,</p>\n<blockquote>\n<p>The passages cited from the dictionaries define the word ‘fruit’ as\nthe seed of plaints, or that part of plaints which contains the seed,\nand especially the juicy, pulpy products of certain plants, covering\nand containing the seed. These definitions have no tendency to show\nthat tomatoes are ‘fruit,’ as distinguished from ‘vegetables,’ in\ncommon speech, or within the meaning of the tariff act</p>\n</blockquote>\n<p>and since the terms do not have a special meaning in trade or commerce, they must receive their ordinary meaning. Observe that &quot;scientific definition&quot; is not even a contender in this discussion. The court observed that &quot;dictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court&quot;.</p>\n<p>The crux of the ruling is the following observation:</p>\n<blockquote>\n<p>Botanically speaking, tomatoes are the fruit of a vine, just as are\ncucumbers, squashes, beans, and peas. But in the common language of\nthe people, whether sellers or consumers of provisions, all these are\nvegetables which are grown in kitchen gardens, and which, whether\neaten cooked or raw, are, like potatoes, carrots, parsnips, turnips,\nbeets, cauliflower, cabbage, celery, and lettuce, usually served at\ndinner in, with, or after the soup, fish, or meats which constitute\nthe principal part of the repast, and not, like fruits generally, as\ndessert.</p>\n</blockquote>\n<p>In other words, specialized scientific definitions are not assumed to underlie the use of words selected by lawmakers. If lawmakers list &quot;fish, such as pike, capybara, and perch&quot;, then for purposes of that law and that law alone, capybara is defined to be a fish. Explicit redefinitions are fairly commonplace in writing laws, and lawmakers universally have the power to redefine words so that &quot;and means or and or means and, as necessary&quot;.</p>\n<p>An example of a deliberate statutory redefinition is the fact that a bee is a fish in California, for some purposes, see <a href=\"https://www.courts.ca.gov/opinions/archive/C093542S.PDF\" rel=\"nofollow noreferrer\">Almond v. Fish</a>. In the Fish &amp; Game Code, <a href=\"https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=FGC&amp;division=0.5.&amp;title=&amp;part=&amp;chapter=1.&amp;article=\" rel=\"nofollow noreferrer\">FGC §45</a>,</p>\n<blockquote>\n<p>“Fish” means a wild fish, mollusk, crustacean, invertebrate,\namphibian, or part, spawn, or ovum of any of those animals</p>\n</blockquote>\n<p>which means that worms and jellyfish, and insects, are legal fish. The <a href=\"https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=FGC&amp;division=3.&amp;title=&amp;part=&amp;chapter=1.5.&amp;article=1.\" rel=\"nofollow noreferrer\">Endangered Species Act</a> §2062 then says</p>\n<blockquote>\n<p>“Endangered species” means a native species or subspecies of a bird,\nmammal, fish, amphibian, reptile, or plant which is in serious danger\nof becoming extinct throughout all, or a significant portion, of its\nrange due to one or more causes, including loss of habitat, change in\nhabitat, overexploitation, predation, competition, or disease.</p>\n</blockquote>\n<p>Notice that under an interpretation of the law that ignores the statutory redefinition in §45, invertebrates and a number of chordates would not be protected by law. The court notes that this was a deliberate action by the legislature in 1969, in that\nenrolled bill reports in support of this modification included the argument that</p>\n<blockquote>\n<p>The expanded definition of fish will permit closer control and\nmonitoring of the harvest of species such as starfish, sea urchins,\nsponges and worms, and the ... Commission will be authorized to make\nregulations deemed necessary for proper protection and management of\nthese species</p>\n</blockquote>\n", "score": 45 }, { "answer_id": 91411, "body": "<p>When a statute presents a general category and says that category &quot;includes&quot; some specific examples, those specific examples are <em>deemed</em> to belong to that category for the purpose of the statute.</p>\n<blockquote>\n<p>Statutory definitions are also used to expand the usual scope of <strong>a word or expression</strong>, for example:</p>\n<blockquote>\n<p>In this section,</p>\n<p>&quot;fish&quot; includes shell fish, crustaceans, and marine mammals;</p>\n</blockquote>\n<p>...</p>\n<p>In these examples, the statutory definition enlarges the ordinary (or technical) meaning of the defined terms by including things that might normally be thought to fall outside their denotation.</p>\n<p>(Ruth Sullivan, <em>Statutory Interpretation</em>, 3rd ed. (2016), p. 81)</p>\n</blockquote>\n<p>And in the U.S. textualist context:</p>\n<blockquote>\n<p>Individual statutes often contain definition sections giving ordinary words a limited or artificial meaning.</p>\n<p>(Antonin Scalia &amp; Bryan A. Garner, <em>Reading Law: The Interpretation of Legal Texts</em>)</p>\n</blockquote>\n<p>But Ruth Sullivan notes, &quot;statutory definitions do not necessarily lighten the interpreter's load. Many simply add to the ordinary or technical meaning of the defined term, which must still be determined in the usual way&quot; (p. 82).</p>\n<p>There are many other competing canons and principles of interpretation. The fact that an unexpected example is listed may be read to imply that the general category is actually broader than its common meaning would normally convey. <strong>One cannot answer interpretation questions in the abstract</strong>. In <a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged &#39;canada&#39;\" aria-label=\"show questions tagged &#39;canada&#39;\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a>, the current approach to statutory interpretation is that:</p>\n<blockquote>\n<p>Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.</p>\n<p><em>Rizzo &amp; Rizzo Shoes Ltd. (Re)</em>, [1998] 1 S.C.R. 27 at <a href=\"https://canlii.ca/t/1fqwt#par21\" rel=\"noreferrer\">para. 21</a></p>\n</blockquote>\n<p>This approach has not been as universally accepted in the U.S., but given the inherent tensions between various <a href=\"https://en.wikipedia.org/wiki/Statutory_interpretation#Canons\" rel=\"noreferrer\">canons of interpretation</a> (same word–same meaning; <em>expressio unius</em>; etc.), it is similarly not possible to answer interpretive questions in the abstract. In all but the clearest cases (and even these would only be clear in context), to make any meaningful argument, one would need at least the full statute for examination.</p>\n", "score": 22 }, { "answer_id": 91420, "body": "<blockquote>\n<p>Does that make the capybara legally a &quot;fish&quot; for the purpose of that\nparticular law?</p>\n</blockquote>\n<p>Yes.</p>\n<blockquote>\n<p>How would that affect courts trying to make determinations about what\nother things not specifically enumerated are (legal) fish?</p>\n</blockquote>\n<p>They would do their best to find a general principle. You see something similar in the efforts of Jewish legal scholars trying to apply Biblical Kosher food requirements to situations not described in the Hebrew Bible with <a href=\"https://www.chabad.org/library/article_cdo/aid/113425/jewish/What-Is-Kosher.htm\" rel=\"nofollow noreferrer\">Talmudic arguments</a>.</p>\n<p>In Catholic Canon law (from which this particular example is drawn), which presents the same fish on Friday conundrum, they have a somewhat easier task, because the Pope is someone who has the capacity to resolve such questions in an absolutely authoritative manner even without coming up for a consensus reason for the distinction. Historically, <a href=\"https://www.mentalfloss.com/posts/lent-beavers-muskrats-capybaras-fish\" rel=\"nofollow noreferrer\">what happened was</a> this:</p>\n<blockquote>\n<p>During Lent, many Catholics deny themselves earthly pleasures to honor\nJesus's sacrifice. Abstaining from meat has nothing to do with animal\nrights; instead, it's supposed to be a break from an ingredient\ntraditionally viewed as indulgent and luxurious. That's why beef,\npork, and poultry are considered meat but fish isn't. Fish was thought\nof as a &quot;simple&quot; source of protein in the Middle Ages, whereas meat\nfrom land animals was considered rich and therefore more &quot;sinful.&quot;</p>\n<p>As is the case with the laws of most religions, Catholics have found\ncreative ways around this rule over the centuries. Between the 16th\nand 18th centuries, a clergyman in Venezuela wrote to the Vatican\nasking if it was alright to eat capybaras during times of fasting. The\nSouth American rodents (the largest on Earth) are certainly not fish,\nbut because they spend a lot of time swimming, the church decided to\nclassify them as such. The Vatican has also made exceptions for other\nsemi-aquatic mammals like beavers and muskrats. Reptiles that live in\nwater, like turtles and alligators, qualify as fish during Lent as\nwell.</p>\n</blockquote>\n<p>In general, it is always possible to devise a rule that includes all outlier terms in a list, although in some cases that rule will be more contrived than in others.</p>\n<p>For an example from non-religious law, the term &quot;commodities&quot; in which trading in future is regulated by the independent government agency known as the Commodity Futures Trading Commission (based in Chicago), includes all agricultural crops except onions. This is due to the <a href=\"https://en.wikipedia.org/wiki/Onion_Futures_Act\" rel=\"nofollow noreferrer\">Onion Futures Act of 1958</a> which was passed because there was a notorious incident in 1955 in which someone committed a massive market manipulation with the onion futures market that did massive harm to everyday people in the U.S. economy, even though, in principle, there is no good reason to regulate onion futures any differently from, for example, potato futures.</p>\n<p>Similarly, even if two bottles of wine have contents that are chemically indistinguishable from each other (a client of mine is actually in the business of making exact chemical replicas of high priced wines using mass spectrometry and similar precision chemical tests) <a href=\"https://michaelfatelaw.com/articles/californias-wine-labeling-laws/\" rel=\"nofollow noreferrer\">under U.S. law</a>:</p>\n<blockquote>\n<p>To be designated as a “California” wine, 100% of the grapes used in\nthe wine must be grown in that state. To bear a viticultural area\ndesignation such as “Napa,” “Sonoma,” or “El Dorado County,” 85% or\nmore of the grapes used must be grown in the designated area.</p>\n</blockquote>\n<p>So, it makes a factual distinction that doesn't really exist in a meaningful way from the perspective of a wine consumer.</p>\n<blockquote>\n<p>Would an attorney be able to get any mileage out of the argument that\nthe capybara is not in fact a fish, as noted by leading fish experts?</p>\n</blockquote>\n<p>No.</p>\n<p>The best the attorney could hope for would be that there is also a capybara fish which is not as well known as the capybara mammal. If that were the case, the attorney could argue that the reference was to the capybara fish and not to the capybara mammal. But, if that isn't the case, the attorney has no leg to stand on legally. And, if there is an argument like that to be made, the legislative history of a law or regulation, regulations interpreting a statute shortly after it was adopted, or long standing practice in interpreting a law since its inception that is never authoritatively included in an authoritative legal document, could clearly rule out that interpretation.</p>\n<blockquote>\n<p>Can a law or part of a law be struck down not for being wrong but just\nfor being false?</p>\n</blockquote>\n<p>Not really.</p>\n<p>In very rare instances, when the plain meaning of a law is absurd to the point of undermining the intent of the law expressed in other contexts the courts will interpret &quot;and&quot; to mean &quot;or&quot;, or &quot;shall&quot; to mean &quot;may&quot;, or &quot;do X&quot; to mean &quot;don't do X&quot; and will interpret it contrary to the plain reading on the grounds that it was a mere drafting error in the law. But this authority is virtually never used to invalidate a legal finding of fact.</p>\n<p>Indeed, sometimes the law compels us to ignore certain facts.</p>\n<p>For example, even if a parole eligibility model that included race as a factor was more accurate in predicting recidivism while on parole than the best available model that doesn't consider that factor, a parole eligibility model that considers race as a factor would be invalid as a matter of law.</p>\n<p>Similarly, even if it is factually true that someone was in possession of illegal drugs, juries in a criminal prosecution for possession of those illegal drugs cannot consider that undisputedly true factual evidence if it was obtained in violation of the 4th Amendment.</p>\n<p>The case of &quot;fish&quot; for the purpose of a particular law is much easier than that, however, because definitions can't be false by definition. There is no absolutely and universally true definition of any word. Instead, legal terms usually have multiple similar but not identical meanings.</p>\n<p>The situation where a word has multiple meanings is called in linguistics and legal theory: <strong>polysemy</strong>.</p>\n<blockquote>\n<p>Polysemy—the existence of multiple related meanings for the same word\nor phrase—is a frequent phenomenon in legal and lay language. Although\npolysemy sometimes arises by accident, it also can be strategic:\nframers of legal rules can advance private and public interests by\nassigning meanings to terms that are different from—though connected\nto—the meanings that those terms carry outside the law. Understanding\nthe functions of polysemy can help us design more effective legal\nrules and can shed light on ways in which legal actors translate\nlanguage into power.</p>\n</blockquote>\n<ul>\n<li>Daniel J. Hemel, &quot;Polysemy and the Law&quot; 76 Vanderbilt Law Review (Forthcoming 2023) available at the <a href=\"https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4264800&amp;dgcid=ejournal_htmlemail_nyu%3Alaw%3Aeconomics%3Aresearch%3Apaper%3Aseries_abstractlink\" rel=\"nofollow noreferrer\">Social Science Research Network</a>.</li>\n</ul>\n<p>Even if you are trying to conform to some meaningful and consistent concept in defining a legal term in a particular way, you can't really choose the correct definition until you know what the definition is seeking to distinguish from things outside the definition, i.e. the purpose of the law.</p>\n<p>Definitions that don't match the most common sense of word in plain language are common in both legal statute and regulation drafting, and in contractual drafting.</p>\n", "score": 17 }, { "answer_id": 91452, "body": "<blockquote>\n<p>Does that make the capybara legally a &quot;fish&quot; for the purpose of that particular law?</p>\n</blockquote>\n<p>Yes.</p>\n<hr />\n<p>I actually just dealt with this issue on the municipal level. A project of mine was before the Planning Board proposing an objectionable vice use. Pursuant to the zoning conditions, such a use could not be situated within 1,000 feet of a public park.</p>\n<p>Because of the proposed vice use there was some public outcry on the matter. In an effort to kill the project, members of the public focused upon a publicly accessible walking trail immediately behind the site which the general public perceived as being a public park. After all, it was a public walkway with various amenities to facilitate the public's use of the space for biking and walking. Testimony was provided by the public that police periodically patrol for loitering. From the perception of the general public, it was a park.</p>\n<p>Unfortunately, the zoning ordinance lacked a definition for 'public park', so the matter was referred to the Zoning Board for an official interpretation and it was deemed to not be a public park for the following reasons:</p>\n<ul>\n<li>The walking trail itself isn't actually public property, it's a private utility's right-of-way with an easement to permit the walking trail.</li>\n<li>The zoning ordinance does have a definition for right-of-ways which was likely initially crafted imagining public roads in mind, but regardless is applicable for this site.</li>\n<li>For the proposed use, the Township's Council needed to issue a letter approving the use at the specific location in order for a license to be issued <em>prior</em> to the Planning Board hearing (which the Council did). Given the conditional use requirements were set prior to the issuance of the letter, presumably, the Council did not perceive the walking trail as being a public park by virtue of them issuing the letter.</li>\n</ul>\n<p>Ultimately, the project was approved, against the wishes of some members of the public who insist that the trail is a public park. Regardless, their perception of it being a park is irrelevant for the purposes of what it is legally defined as.</p>\n", "score": 6 } ]

[ "interpretation", "judicial-review", "legislative-intent" ]

[ { "answer_id": 91686, "body": "<h2>No</h2>\n<p>The law (s111A) is clear that the right lane has right-of-way (except when it doesn't). This does not make it illegal for a car to merge from the left - it just makes it illegal to do so where that cannot be done safely. In a situation where traffic is zipper merging at low speed, this is not a problem.</p>\n", "score": 2 } ]

[ "canada", "traffic" ]

[ { "answer_id": 91694, "body": "<p>A law requiring you to explicitly lie to someone would be a form of compelled speech, which is a violation of the 1st Amendment's free speech clause. However, a &quot;lie&quot; in the legal sense would be a statement of fact that is objectively and demonstrably false. There are lots of disclosure laws that require lots of people in different professions to do and say all kinds of things to and for their clients that might even be widely regarded as stupid, but that does not make them lies.</p>\n<p>Taking the ACLU's claims at face value (I'm sure these laws exist but I'm not going to take the time to look them up), requiring doctors to disclose potential negative side effects of a drug or surgical procedure to a patient is clearly within the legislature's authority to do if they've determined that there is sufficient evidence to warrant it. It's ultimately up to the courts to decide, but courts generally give wide latitude to legislatures and administrative agencies in this regard unless the statute is egregiously unreasonable.</p>\n<p>Either way, the doctor does not have to assert the disclosures as statements of fact, and they are free to tell their patients that they do not believe them to be true, so there is no compelled speech involved.</p>\n<hr />\n<p>I'm not trying to express support or opposition to abortion here, so please don't start a dumpster fire in the comments. But the ACLU article you linked is a straight-up opinion piece. The ACLU believes that the statements are lies. There are a lot of weasel words just in the paragraph you quoted. Out of curiosity, I did a search on their claims.</p>\n<p>The top search result for &quot;abortion and breast cancer&quot; is <a href=\"https://www.cancer.org/healthy/cancer-causes/medical-treatments/abortion-and-breast-cancer-risk.html\" rel=\"nofollow noreferrer\">this article from the American Cancer Society</a>, which contains this statement:</p>\n<blockquote>\n<p>The results of studies looking at the possible link between breast cancer and induced abortion often differ depending on how the study was done. Cohort studies and studies that used records to determine the history of abortions have not found an increased risk. Some case-control studies, however, have found an increase in risk.</p>\n</blockquote>\n<p>In other words, we don't really know for sure. So it's not as &quot;factually wrong&quot; as the ACLU says.</p>\n<p>A search for &quot;abortion effects on future fertility&quot; yields <a href=\"https://pubmed.ncbi.nlm.nih.gov/2225607/\" rel=\"nofollow noreferrer\">this study from the U.S. National Institute of Health</a></p>\n<blockquote>\n<p>... Women whose pregnancy is terminated by dilatation and evacuation may have an increased risk of subsequent premature delivery and a low birthweight baby. Very little has been published and no conclusions can be made regarding the effects of instillation procedures and repeat abortions on future reproduction.</p>\n</blockquote>\n<p>So there's definitely a risk from a <em>particular kind</em> of abortion (a D&amp;E, which are performed usually for mid-late term pregnancies), but no significant risk from an instillation abortion (a vacuum catheter in early pregancy). This study is from 1990, so medication-induced abortions were not available then. It was just the first search result that wasn't a news article.</p>\n<p>And then there's the &quot;negative emotional response&quot; risk. I'm not even going to tackle that one it's so weaselly. What does that even mean exactly? &quot;...Mainstream medical associations have uniformly determined that this is false.&quot; Which medical associations? And what constitutes &quot;mainstream?&quot; I highly doubt there is uniformity of opinion.</p>\n<hr />\n<p>Bottom line is, no, a law cannot require you to lie. And the laws in this example are not lies per se.</p>\n", "score": 1 } ]

[ "united-states" ]

[ { "answer_id": 91691, "body": "<p>The legislation simply provides a novel conversion process for same-sex couples to convert their civil partnership to a marriage, with a date retroactive to the commencement of their civil partnership. See <a href=\"https://www.legislation.gov.uk/uksi/2014/3181\" rel=\"nofollow noreferrer\">the regulations</a> and the <a href=\"https://www.legislation.gov.uk/ukpga/2013/30/section/9/enacted\" rel=\"nofollow noreferrer\">provision of the legislation</a> allowing for this process to be created.</p>\n<p>There are no restrictions on access to marriage based on the sex of the couple. Any couple can still get married outside of the conversion process, even while in a civil partnership.</p>\n", "score": 4 } ]

[ "united-kingdom", "marriage" ]

[ { "answer_id": 91685, "body": "<p>The defendant Fox corporation (there are a variety of affiliated or formerly affiliated companies with very similar names) is organized under the laws of Delaware so lawsuits related to its activities anywhere in the world may be brought in that forum. This choice of venue denied Fox any means of contesting jurisdiction or venue.</p>\n<p>Also, the Delaware courts have a great level of expertise in handling litigation involving publicly held corporations. While this may not have been very important for a jury trial on the merits itself, this expertise was quite relevant in the pre-trial discovery phase of the trial which alleged widespread misconduct by the inner circle of a publicly held company's employees and officers.</p>\n", "score": 18 } ]

[ "jurisdiction", "delaware" ]

[ { "answer_id": 91671, "body": "<p>There is no law pertaining to top level domains, defining &quot;appropriateness&quot;. Instead, some organization is an administrator, and there is an understanding as to what the purpose of the domain is, but this is not legally enforceable. The TLDs com, org, net are open to anyone, whereas edu is limited in the US to accredited post-secondary institutions, however some non-educational commercial enterprises were grandfathered in. Insofar as registering a com-domain website does not entail &quot;an intent to make profit&quot; and registering an org-domain website does not entail &quot;an intent to not make a profit&quot;, there is no deception w.r.t. internet users. One would of course have to be truthful in registering the domain.</p>\n<p><a href=\"https://thenew.org/\" rel=\"noreferrer\">Public Interest Registry</a>, the administrator for org, does not even purport that businesses registered under org should be &quot;nonprofit&quot;.</p>\n", "score": 5 } ]

[ "canada" ]

[ { "answer_id": 77011, "body": "<blockquote>\n<p>The IRS requires taxpayers to swear under &quot;penalties of perjury&quot; to\ntheir statements and figures given concerning their income. Since\nobviously this constitutes a potential incrimination</p>\n</blockquote>\n<p>The privilege against self-incrimination applies to giving testimony that reveals that you have committed a crime, not to doing something prospectively in a way that does not violate criminal laws.</p>\n<p>The solution is that you may truthfully report the amount of income that you have on your tax return.</p>\n<p>Ordinarily, the information that you had a certain amount of income, without a specific description of its source, would not in and of itself be incriminating. So, it is not &quot;obvious that this constitutes potential incrimination[.]&quot;, at least in the general case.</p>\n<p>There might be some circumstance in which merely filling out the information on a tax return required by law and signing it under penalty of perjury would be incriminating, although this is far more narrow that your question suggests. In those circumstances, the solution would be to file an unsigned tax return accompanied by a disclaimer stating that you are not signing it under penalty of perjury as it would be potentially incriminating for you to do so would on a signed and attached explanation that explicitly claims the 5th Amendment privilege.</p>\n<p>There is actually an IRS form for doing that or similar things on: <a href=\"https://www.meadowscollier.com/form-8275-disclosure-statement-a-tax-practitioners-best-friend-forever\" rel=\"nofollow noreferrer\">IRS Form 8275</a>.</p>\n<p>This would result in serious civil tax penalties, but would probably protect you from a criminal tax law violation (at least for the failure to file offense, not necessarily from the failure to pay offense).</p>\n", "score": 4 }, { "answer_id": 91681, "body": "<p>The underlying principle is that the Fifth Amendment does <em>not</em> protect you from being required to testify as a witness in general, even if some or all of the questions could be about incriminating matters. Unless you are actually the defendant in the trial, you must appear to testify and be sworn, and then you may claim the privilege in refusing to answer each individual question that would incriminate you. But you may be asked other questions that do not incriminate you, and you are still required to answer those.</p>\n<p>This is how it works in court, and the same principle applies on tax returns. You are not on trial, and have not been charged with anything, so the Fifth Amendment does not give you the right to refuse to file a tax return at all, nor to file a tax return containing false statements. Rather, if the answer to one or more questions (line items) on the form would incriminate you, then you must state objections to those specific items, and truthfully fill in all the rest. Then signing the declaration that the information on your form is true, will not in itself incriminate you, nor would it perjure you (since it is a true statement), so you have no privilege against signing it.</p>\n<p><a href=\"https://casetext.com/case/united-states-v-schiff\" rel=\"nofollow noreferrer\">United States v. Schiff, 612 F.2d 73 (2d Cir. 1979)</a></p>\n<blockquote>\n<p>On appeal, the appellant emphasizes that a person filling out a tax form is a &quot;witness&quot; for purposes of the Fifth Amendment. Clearly, this is the rule. See Garner v. United States, 424 U.S. 648, 656, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976); United States v. Sullivan, supra. But the Fifth Amendment privilege does not immunize all witnesses from testifying. Only those who assert as to each particular question that the answer to that question would tend to incriminate them are protected. As the Court observed in Albertson v. Subversive Activities Control Board, 382 U.S. 70, 79, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965), the questions in the income tax return are neutral on their face and directed to the public at large rather than to a &quot;selective group&quot; inherently suspect of criminal activities, cf. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) (occupational and excise tax on gambling). Hence privilege may not be claimed against all disclosure on an income tax return.</p>\n</blockquote>\n", "score": 1 } ]

[ "united-states", "us-constitution", "fifth-amendment", "bill-of-rights" ]

[ { "answer_id": 91676, "body": "<p>The 5th Amendment is not a license to commit fraud. The right not to testify about your past crimes does not mean that you are allowed to be untruthful in the present.</p>\n", "score": 1 } ]

[ "united-states", "constitutional-law", "tax-law" ]

[ { "answer_id": 91645, "body": "<p>I am using 1960s and later as a cutoff for &quot;new&quot; in the absence of other clear guidance in the question (keep in mind that the common law goes back to before the 1600s in many cases). I'm also treating a judge made law innovation as &quot;new&quot; even if it was present in a handful of outlier cases in a handful of jurisdictions but was not widely used and widely adopted until much later.</p>\n<p>A few that come to mind are:</p>\n<ul>\n<li><p>The direct strict liability for defective products in torts originated in California in the 1960s.</p>\n</li>\n<li><p>The market share method of allocating damages for product liability in class action lawsuits when the exact manufacturer could not easily be determined because multiple manufacturers made the same defective product is a fairly recent innovation.</p>\n</li>\n<li><p>The widespread adoption of the common law implied duty of good faith and fair dealing in cases not governed by the Uniform Commercial Code is more recent than that.</p>\n</li>\n<li><p>The common law practice of treating installment land contracts upon which many payments have been made as mortgages under a lien theory is relatively recent.</p>\n</li>\n<li><p>The generalized and widespread adoption of unjust enrichment as a cause of action is a late 20th century judicial innovation.</p>\n</li>\n<li><p>The concept of a trust protector for express trusts is relatively recent (maybe seeing widespread adoption in the 1980s).</p>\n</li>\n<li><p>The outrageous conduct/intentional infliction of emotional distress tort is relatively recent (probably seeing wide use around the 1970s or 1980s).</p>\n</li>\n<li><p>The negligent misrepresentation tort is relatively recent.</p>\n</li>\n<li><p>the injurious falsehood tort (imposing fraud liability when fraud directed at a third-party harms the person seeking relief)</p>\n</li>\n<li><p>The intentional interference with contractual rights/business opportunity tort is relatively recent, at least in wide application.</p>\n</li>\n<li><p>Palimony causes of action.</p>\n</li>\n<li><p>Enforcement of domestic partnership agreements (previously disallowed as a matter of public policy).</p>\n</li>\n<li><p>The use of the contempt of court power to enforce unpaid child support and alimony judgments.</p>\n</li>\n<li><p>The erosion (but not complete abolition) of common law authority for someone to make decision for spouses and children as a &quot;natural guardian&quot; in the absence of a court order or written instrument.</p>\n</li>\n<li><p>The demise of college and university <em>in loco parentis</em> authority over college students.</p>\n</li>\n<li><p>The demise of the common law defense to assault for a husband's &quot;reasonable&quot; discipline of his wife.</p>\n</li>\n<li><p>The demise of marital tort immunities in many states (in other states this was statutory).</p>\n</li>\n<li><p>The demise of the heart balm torts in states where they were not abolished by statute.</p>\n</li>\n<li><p>The common law choice of law rules were revolutionized between roughly the 1960s and 1980s with the &quot;most significant relationship&quot; test largely replacing rigid black and white rules.</p>\n</li>\n<li><p>The tender year's doctrine was a common law innovation that came and went (in the face of constitutional gender equality norms that overruled it). It has been somewhat superseded by a weak primary caretaker presumption and by the concept that the best interests of the child are served by reproducing the pre-divorce/separation status quo to the extent possible.</p>\n</li>\n<li><p>Validating shrink wrap licensing and the theories of contract formation that go with website terms of service are fairly recent common law innovations.</p>\n</li>\n<li><p>Various common law legal theories of relief for revenge porn are quite recent. This is a currently developing area of the common law.</p>\n</li>\n</ul>\n<p>Some innovations that started with common law decisions were later widely codified:</p>\n<ul>\n<li><p>Putative marriage was a common law innovation before it was codified.</p>\n</li>\n<li><p>Time shares were a common law innovation before they were regulated on a statutory basis.</p>\n</li>\n<li><p>The concept of quasi-community property was a fairly recent innovation that was a common law concept before it was statutory.</p>\n</li>\n<li><p>The concept of derivatives is largely a common law innovation.</p>\n</li>\n<li><p>The common law reporter's privilege, in places where it does not arise from a shield law, dates mostly from the 1970s.</p>\n</li>\n<li><p>Implied warranties of habitability for residential real estate were originally a common law innovation although they have been codified in many jurisdictions now.</p>\n</li>\n<li><p>Limitations on the duration, allowability, and scope of non-competition agreements (some of which remains common law and some of which is now statutory).</p>\n</li>\n</ul>\n<p>It is somewhat hard to stick to the question's limitation on &quot;not looking for new interpretations of statutes, but purely for judge made law&quot; because lots of constitutional law and civil procedure, for example, have a very thin statute-like touchstone but have predominantly been a matter of judicial innovation. These include:</p>\n<ul>\n<li><p>The demise of notice pleading in the federal courts after decades without significant case law change and no new statutory language.</p>\n</li>\n<li><p>The dramatic narrowing of &quot;general jurisdiction&quot; after decades without significant case law change and no new statutory language.</p>\n</li>\n<li><p>The creation of the &quot;qualified immunity&quot; doctrine in civil rights cases.</p>\n</li>\n<li><p>The creation and then limitations of the <em>Bivens</em> remedy for civil rights violations by federal officials no spurred by new statutory language.</p>\n</li>\n<li><p>The &quot;fraud on the market&quot; theory of securities fraud liability.</p>\n</li>\n<li><p>The concept of insider trading.</p>\n</li>\n<li><p>The definition of &quot;security&quot; in the case of investment contracts.</p>\n</li>\n<li><p>The narrowing of defamation law in multiple respects.</p>\n</li>\n<li><p>The Miranda rule.</p>\n</li>\n<li><p>Case law regarding reasonable expectations of privacy under the 4th Amendment in light of new technologies (infrared, drones, DNA testing, etc.)</p>\n</li>\n<li><p>The &quot;major questions doctrine&quot; for judicial review of administrative action on constitutional grounds.</p>\n</li>\n<li><p>The development of sexual harassment claims from statutes prohibiting discrimination on the basis of sex.</p>\n</li>\n<li><p>The application of existing statutes and constitutional provisions to LGBT rights with no new statutory language.</p>\n</li>\n<li><p>The determination that juvenile life without parole violates the 8th Amendment.</p>\n</li>\n<li><p>The determination that the Second Amendment creates an individual right and that this right is applicable against state and local governments and not just the federal government.</p>\n</li>\n<li><p>The determination that the 6th Amendment allows for non-unanimous criminal case juries followed by a determination decades later that it does not allow for non-unanimous criminal case juries based upon the experience of Louisiana and Oregon that used those options.</p>\n</li>\n<li><p>The jurisdictional issues of when a state can impose sales taxes on mail order purchases (which involved a double flip of authority at the U.S. Supreme Court level).</p>\n</li>\n</ul>\n", "score": 3 }, { "answer_id": 91644, "body": "<p>See <em>Air &amp; Liquid Systems Corp. v. DeVries</em> <a href=\"https://supreme.justia.com/cases/federal/us/586/17-1104/#tab-opinion-4067382\" rel=\"nofollow noreferrer\">586 U.S. ___ (2019)</a>. This was a maritime law tort case, where the Court explicitly acknowledged that &quot;[i]n maritime tort cases, we act as a common-law court.&quot;</p>\n<p>The Court recognized a new duty to warn for a manufacturer where:</p>\n<blockquote>\n<p>(i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger.</p>\n</blockquote>\n<p>In this case, the manufacturer's product required integration with an asbestos product.</p>\n", "score": 1 }, { "answer_id": 91648, "body": "<h2>The tort of Invasion of Privacy</h2>\n<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged &#39;australia&#39;\" aria-label=\"show questions tagged &#39;australia&#39;\" rel=\"tag\" aria-labelledby=\"tag-australia-tooltip-container\">australia</a></p>\n<p>Only … not quite yet. This is an area of law which is currently developing with two District Court judgements in Victoria and Queensland stating that the tort exists but, since both settled before appeal, we have no appellate court decisions. The High Court has said in obiter that it is not closed to the idea that such a tort might exist but it hasn’t yet been of material interest in any case they have addressed.</p>\n<p><a href=\"https://www.sydney.edu.au/content/dam/corporate/documents/sydney-law-school/research/publications/slrv43n2jun2021lerchfinal.pdf\" rel=\"nofollow noreferrer\">Aiden Lerch, ‘The Judicial Law-Making Function and a Tort of Invasion of Personal\nPrivacy’ (2021) 43(2) Sydney Law Review 133.</a></p>\n", "score": 0 }, { "answer_id": 91649, "body": "<p>In patent law there are two kinds of doctrines called “double patenting”. One is a statutory prohibition (that originates in the word “a” in the constitution) on two patents covering the same invention, the other is actually called “judicially created double patenting”. It limits patents in the case where one is obvious from the other. In that situation you can get two patents as long as it isn’t possible that the term is extended beyond what it would be for a single patent or result in an alleged infringer potentially needing to fight two different owners.</p>\n<p>It was created by Judge Rich in In re Zickendraht, 319 F.2d 225 (C.C.P.A. 1963) and solidified by other cases shortly thereafter.</p>\n<p>More recently there have been a string of SCOTUS cases that have drastically expanded the meaning of “abstract” in in patent law, although Justice Thomas wrote that there was no reason to belabor over defining it.</p>\n", "score": 0 } ]

[ "united-states", "common-law", "legal-history" ]

[ { "answer_id": 85762, "body": "<p>TLDR: &quot;Compact&quot; is a legal fiction to get the right to build a building. It's pretty much useless.</p>\n<p>The &quot;compact car parking space&quot; is about <em>entitlements</em> aka the right to build, which is decided <strong>at the local</strong> level. Cities <em>often</em> require a minimum number of parking spaces for a development. This then requires defining a minimum space size and aisle size. And builders pressure cities to allow a percentage of &quot;compact&quot; spots with smaller space and sometimes aisle size. An example of code in Pinole, California (exurban San Francisco, and the kind of place you need a car to get by).</p>\n<blockquote>\n<p>A. Up to twenty-five percent (25%) of the required number of parking spaces may be sized for compact cars.<br />\nB. Compact car parking spaces shall be at least eight (8) feet in width and sixteen (16) feet in length, and shall be clearly marked, “COMPACT CARS ONLY,” “COMPACT,” or “C.”<br />\nC. Compact car spaces shall be distributed throughout the parking lot.<br />\nD. Where a section of the parking lot is restricted to compact parking with an angle of 90 degrees, the aisle width may be reduced from the standard twenty-three (23) feet to twenty- one (21) feet. Such compact sections should be located so as to minimize the distance from the section to the appropriate building or activity.</p>\n</blockquote>\n<p><em>Note absence of state-level standard, even in California.</em> The takeaway here is this a <em>local</em> matter and will be subject to <em>local</em> enforcement if any.</p>\n<p><strong>Police do not (by default) have standing to enforce on private property</strong>. Some departments are willing to sign contracts with (larger) parking lot owners to enforce on their property - this will be the case at a large mall, typically. Such consent is a double-edged sword, and smaller entities will think twice about doing it.</p>\n<p>Even when they do, &quot;Is a car a compact car?&quot; is too vague and slippery a question, because again <em>it is defined on a local level</em>. This is <a href=\"https://www.seattlepi.com/local/transportation/article/Getting-There-An-SUV-is-a-compact-if-it-fits-1185241.php\" rel=\"nofollow noreferrer\">a vexation</a> to people who find Tacomas and Dodge Chargers parked in the compact spots.</p>\n<p>Your best bet is to appeal to the private property owner. <strong>The host makes the rules, and they can make ANY rule they want</strong>. And yeah, they can enforce it with towing, as long as the parker has a reasonable opportunity to know those rules, and the rule is sane enough that a judge doesn't call it a predatory tow. Penalty tows HURT - they are many times the cost of regular old rescue tows. They can say &quot;your vehicle may only park in the Designated Loser Spot for the next month as punishment&quot;, or &quot;pay a $60 fine <em>or don't bring the vehicle back here</em>&quot; or just &quot;banned for a month&quot;, with towing-on-sight being the penalty for noncompliance. So it really depends on the righteousness of the property owner.</p>\n<p>Remember though - the property owner only created those spots to get a license to build. So now that they have their entitlement, they're not emotionally invested in the principle.</p>\n", "score": 2 } ]

[ "united-states", "oregon", "parking" ]

[ { "answer_id": 91672, "body": "<p><a href=\"https://hallellis.co.uk/causation-loss-damages/\" rel=\"nofollow noreferrer\">This solicitors' site</a> gives some good information and examples relating to legal causality - and in particular the difference between causality and the opportunity to suffer loss.</p>\n<p>The bicycle owner may have a claim against the owner of the garage if it could be shown there was a reasonable expectation of security. Factors affecting this would include whether the bicycle owner had been made aware the garage was no longer secure (and the manner in which they were advised : hand delivered letters to residents or their flats would work in the garage owner's favour. A big sign saying &quot;This door is not secure&quot; would not), whether the garage owner had offered alternative storage or advice (such as &quot;keep it in your flat&quot;), and whether the action taken by the garage owner was really the only - or most reasonable - course.</p>\n<p>In turn, the garage owner may be able to take further action against the driver to recover the damages of that legal action. Factors in this case would include whether the driver could be held accountable for the bicycle owner or garage owner's responses to the incident, and include those points in the paragraph above. This is likely to be where a break in causation occurs.</p>\n<p>The question uses the word &quot;careless&quot; - it's worth mentioning that &quot;There was an accident&quot; is not sufficient to establish carelessness, but if there was a specific legally established carelessness this could be relevant in the garage owner's case against the driver.</p>\n<p>The bicycle owner is unlikely to be be successful in an attempt to to take direct legal action against the driver or the driver's insurer - unless it can be shown that they were the thief.</p>\n", "score": 2 } ]

[ "united-kingdom", "insurance", "theft" ]

[ { "answer_id": 91667, "body": "<p>There is an FAQ at the FMLA web site here:</p>\n<p><a href=\"https://www.dol.gov/agencies/whd/fmla/faq\" rel=\"nofollow noreferrer\">FLMA FAQ</a></p>\n<p>In that page there is this paragraph:</p>\n<blockquote>\n<p>Qualifying conditions (Q) When can an eligible employee use FMLA\nleave?</p>\n<p>A covered employer must grant an eligible employee up to a total of 12\nworkweeks of <strong>unpaid, job-protected leave</strong> in a 12 month period for one\nor more of the following reasons:</p>\n<p>for the birth of a son or daughter, and to bond with the newborn\nchild; for the placement with the employee of a child for adoption or\nfoster care, and to bond with that child; to care for an immediate\nfamily member (spouse, child, or parent – but not a parent “in-law”)\nwith a serious health condition; to take medical leave when the\nemployee is unable to work because of a serious health condition; or\nfor qualifying exigencies arising out of the fact that the employee’s\nspouse, son, daughter, or parent is on covered active duty or call to\ncovered active duty status as a member of the National Guard,\nReserves, or Regular Armed Forces. The FMLA also allows eligible\nemployees to take up to 26 workweeks of unpaid, job-protected leave in\na “single 12-month period” to care for a covered servicemember with a\nserious injury or illness.</p>\n</blockquote>\n<p>The next question is what is a &quot;serious&quot; medical condition. That's also covered in the FAQ:</p>\n<blockquote>\n<p>Serious health condition (Q) What is a serious health condition?</p>\n<p>The most common serious health conditions that qualify for FMLA leave\nare:</p>\n<p>conditions requiring an overnight stay in a hospital or other medical\ncare facility; conditions that incapacitate you or your family member\n(for example, unable to work or attend school) for more than three\nconsecutive days and have ongoing medical treatment (either multiple\nappointments with a health care provider, or a single appointment and\nfollow-up care such as prescription medication); chronic conditions\nthat cause occasional periods when you or your family member are\nincapacitated and require treatment by a health care provider at least\ntwice a year; and pregnancy (including prenatal medical appointments,\nincapacity due to morning sickness, and medically required bed rest).</p>\n</blockquote>\n<p>While a &quot;stroke&quot; is not specifically mentioned, the resulting medical conditions after a stroke might certainly fall under the FMLA.</p>\n<p>If you believe you are entitled to such benefits, you should start with your HR department.</p>\n", "score": 1 } ]

[ "united-states", "labor-law" ]

[ { "answer_id": 91589, "body": "<h2>When you own something, you get to decide what you do with it</h2>\n<p>There is no obligation to make a copyrighted work available and the fact that it isn’t is not a defence to a copyright infringement.</p>\n<p>Brenda Books is entitled to either damages or an account of profits. Arguably, they have suffered no damage, so Alan’s profits are the better target. In some jurisdictions, such as the United States, statutory damages (a set dollar amount for each infringement) is available even if there are no damages or profits.</p>\n", "score": 26 }, { "answer_id": 91595, "body": "<h2>In the contrary: Copyright can be strengthened by not publishing</h2>\n<p>Unpublished works are protected the same as published works and usually, that is the author's death+70 years. In <a href=\"https://guides.libraries.indiana.edu/c.php?g=158548&amp;p=1486030\" rel=\"nofollow noreferrer\"><em>some cases</em></a> - unpublished and author unknown - it is creation+120 years and corporate published works are 90 years.</p>\n<p>While copyright lasts, the law dictates that it is the absolute <strong>exclusive</strong> right of the copyright holder to make prints outside of some exceptions. Whether they are printing the work or not does not matter: as long as the right lasts, it's exclusive. The act of refusing to sell a published item does nothing for the strength of their claim in itself.</p>\n<p>On the other hand, refusing to publish an unpublished work <strong>does</strong> strengthen their claim for damages, as an unpublished work that Alan illegally brought to market does not need to be registered - it is still unpublished for the courts!</p>\n<h2>Fair Use?</h2>\n<p>In the context of the question, the work has been published, but not offering it does not lessen Brenda Books' claim that it was an infringement.</p>\n<p>To overcome the infringement claim as the defendant, there <em>might</em> be a fair use argument by satisfying the balancing test, but the copyright owners' rights in the text are not diminished by there possibly being <em>some</em> ways that allow republishing part or the whole of the work within the confines of <a href=\"https://www.copyright.gov/fair-use/\" rel=\"nofollow noreferrer\">fair use</a>/<a href=\"https://www.lib.sfu.ca/help/academic-integrity/copyright/fair-dealing\" rel=\"nofollow noreferrer\">fair dealing.</a></p>\n<p>The problem for Alan is, that unwillingness to grant a license and then not being able to prove fair use/dealing means he should be well aware that he is infringing, possibly even stepping his problem up to wilful infringement in case fair use/dealing is not found. in the US can be penalized with 150 000 USD plus attorneys fees.</p>\n<p>A rough estimation of the <strong>fair use</strong> factors:</p>\n<ul>\n<li>Making copies <em>for sale</em> would weigh extremely against Alan, for <em>archival purposes</em> it would weigh for Alan. (see <a href=\"https://law.justia.com/cases/federal/appellate-courts/ca2/13-4829/13-4829-2015-10-16.html\" rel=\"nofollow noreferrer\">Authors Guild v. Google, Inc., (2d Cir. 2015)</a>)</li>\n<li>The amount taken, impact on the market, and nature of the work count against Alan - making a finding of fair use <em>very</em> tricky.</li>\n</ul>\n<p>But.... how did Google get away with copying the whole books? It hinges on the whole copy being searchable, very much transformed, and that the users <em>can't</em> get access to the full text as long as the work is under copyright. From the court of appeals' judgement on the Google case:</p>\n<blockquote>\n<p>(1) Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.</p>\n</blockquote>\n<p>A rough look at the <strong>fair dealing</strong> factors:</p>\n<ul>\n<li>The purpose of the copy might cut against Alan most of the time, the mere usage type cuts against, use is ongoing, the whole book is copied, the means are not exactly required, the nature of the book cuts against <em>and</em> it is market usurpation...</li>\n</ul>\n<p>In short: I don't see how Alan might manage fair dealing unless it would be very much the Google Books example. Making copies even for a 0 profit would not fly.</p>\n", "score": 17 }, { "answer_id": 91602, "body": "<h2>It Doesn’t</h2>\n<p>There are many reasons why a copyright holder might want to take books out of print. The descendants of Theodor “Dr. Seuss” Geisel, for example, recently took a couple of his books out of print on the grounds that they thought some of the lines had become inappropriate by modern standards. The Arthur Conan Doyle estate has never allowed the original version of the first Sherlock Holmes novel to be published, on the grounds that it would only damage the author’s reputation. Mark Twain left instructions for how many years after his death to keep some of his writings from being published, based on how much longer he expected the people he wrote about (and their children) to live and how controversial what he said was by the standards of the time.</p>\n<p>In cases like that, the fact that a <em>samizdat</em> version would be popular and widely-read would, from the perspective of the author’s heirs, be the harm they were trying to prevent.</p>\n<p>As you know, a trademark can be lost if it is not used and defended, but this cannot happen to a copyright. So, when DC acquired the rights to Captain Marvel from Fawcett Comics, and allowed the trademark to lapse, Marvel Comics was able to create a different character named “Captain Marvel,” it took the trademark for itself, and now DC has to call the original, “Shazam!” However, no one but DC can reprint the original Captain Marvel comics, which remain under copyright.</p>\n<p>Proving “A-ha! You let the book go out of print because you thought it wouldn’t sell well, but it did!” would not do someone any good when the jury awards damages. Under U.S. federal law (17 U.S. Code § 504(b))</p>\n<blockquote>\n<p>The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.</p>\n</blockquote>\n<p>So, if the pirate edition sold well, the legitimate rights-holder is still entitled to all the profits from it. If the rights-holder claimed a large amount of damages from lost opportunities to sell the book, but the other party can show that the publisher really believed it would not make them any money, that might be helpful. However, the injured party could still claim statutory damages. In a case like this, it’s risky, but the pirates might try to claim that the public deserved to have the work available. When someone infringes copyright knowingly, “the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000,” (17 U.S. Code § 504(c)(2)) so it matters how sympathetic the judge and jury are to them.</p>\n", "score": 10 }, { "answer_id": 91596, "body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged &#39;canada&#39;\" aria-label=\"show questions tagged &#39;canada&#39;\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>Copyright explicitly applies &quot;whether published or unpublished&quot; (<em>Copyright Act</em>, <a href=\"https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-42/latest/rsc-1985-c-c-42.html#sec5_smooth\" rel=\"noreferrer\">s. 5</a>).</p>\n<p>However, in the fair dealing analysis, the fact that a work is unpublished (if not confidential) weighs in favour of finding that what would otherwise be infringement is a fair dealing (see <em>CCH Canadian Ltd. v. Law Society of Upper Canada</em>, <a href=\"https://canlii.ca/t/1glp0#par58\" rel=\"noreferrer\">2004 SCC 13 at para 58</a>):</p>\n<blockquote>\n<p>The nature of the work in question should also be considered by courts assessing whether a dealing is fair. Although certainly not determinative, if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work — one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair. See <em>Beloff v. Pressdram Ltd.</em>, [1973] 1 All E.R. 241 (Ch. D.), at p. 264.</p>\n</blockquote>\n<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a> <a href=\"/questions/tagged/united-kingdom\" class=\"post-tag\" title=\"show questions tagged &#39;united-kingdom&#39;\" aria-label=\"show questions tagged &#39;united-kingdom&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-kingdom-tooltip-container\">united-kingdom</a></p>\n<p>The situation is the reverse in the U.K. and U.S.: &quot;[i]n the United Kingdom and the United States, if a work is unpublished, it weighs <em>against</em> fair dealing&quot; (Giuseppina D'Agostino, &quot;Healing Fair Dealing? A Comparative Copyright Analysis of Canada's Fair Dealing to U.K. Fair Dealing and U.S. Fair Use&quot; (2008) <a href=\"https://www.canlii.org/en/commentary/doc/2008CanLIIDocs166\" rel=\"noreferrer\">53:2 McGill L.J. 309</a> at p. 358).</p>\n<p><strong>For works that were previously published but now out of print, this weighs in favour of fair use in the U.S.</strong>¹ See e.g. Revision Notes to <a href=\"https://www.govinfo.gov/content/pkg/USCODE-2021-title17/pdf/USCODE-2021-title17-chap1-sec107.pdf\" rel=\"noreferrer\">17 U.S.C. §107 at p. 28</a>. See also <em>Authors Guild v. Google, Inc.</em>, (2d Cir. 2015), which affirmed a fair use finding. The district court said (see <a href=\"https://casetext.com/case/authors-guild\" rel=\"noreferrer\">954 F. Supp. 2d 282</a> (S.D.N.Y. 2013)):</p>\n<blockquote>\n<p>It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life.</p>\n</blockquote>\n<hr />\n<p>^{1. As always for fair use, <a href=\"https://law.stackexchange.com/questions/7683/in-the-us-when-is-fair-use-a-defense-to-copyright-infringement\">simply as one of the several factors</a>.}</p>\n", "score": 9 } ]

[ "copyright" ]

[ { "answer_id": 91623, "body": "<p>In theory, what Dale says. However, in practice:</p>\n<h2>Nope, and that's <em>why</em> the trader is in Timbuktu.</h2>\n<p>And I apologize profusely to the Malian people, I have every reason to think it is a fine country in which citizens obey international laws and honor claims, <strong>unlike certain other countries</strong>. In anglo/Five Eyes nations, Timbuktu tends to simply be used as a metaphor for &quot;a country far, far away and different in its ways than us&quot;.</p>\n<p>If Bob is regularly buying things in the USA or Timbuktu, then either Bob works for Aperture Science and is using portals, or more likely <strong>Bob is using mail order. And now, we get to the nut of it</strong>.</p>\n<p>Most mail order sales are done by mail-order sellers who deal in volume. Those people choose their jurisdictions and venues carefully. <em>And they have help</em>.</p>\n<blockquote>\n<p>Do European or British consumer rights legislations bind the American/Malian trader to protect Bob, as the GDPR would?</p>\n</blockquote>\n<p><strong>No! That's WHY they're in Timbuktu!</strong> (or, wherever they actually are; generally behind what I'll call the Red Curtain.) <strong>The point of being there is to be untouchable by civil action or government penalty</strong> due to that government's non-enrollment in international agreements, and outright obstruction of such actions.</p>\n<p>Yes, they and their legal team have crunched the question of &quot;what happens when a European or Briton sues us? What happens when an Anglo or EU government tries to action us?&quot; Their companies are structured so they slough those off at minimal real loss. Ever notice how many sellers have a company name that looks like they rolled their face across a keyboard? That's a sockpuppet shell company, and they have thousands of them. If their other layers of defense fail, they simply fold that company and create another. Their government lets them do this, because they chose jurisdictions wisely.</p>\n<p>A huge fraction of mail order sales are done on this basis, typically through web sites which purport to be &quot;only a marketplace connecting buyers to sellers&quot;... even though some of those marketplaces also provide warehousing and shipping services to the third party (&quot;only a warehouse&quot; and &quot;only a drop-ship firm&quot;)... and even though they are known for selling their own products, and use the smallest text on the page to mention that this particular item is from a third party. <em>Not mentioning any names</em>.</p>\n<p>This type of &quot;be fully complicit in selling junk, while the seller of record hides behind the Red Curtain and uses arrays of shell companies to limit exposure&quot; has become systemized in much of the mail order world.</p>\n<p>Another scheme I've seen is to trick American consumers into being the seller of record; these people end up &quot;holding the liability bag&quot;, and are typically not insured and not collectible in any practical way.</p>\n<p>Of course you have lovely companies like Eaton, Midnight Solar, Harsco Rail, Roshel, ILSCO, etc. who will meet GDPR simply because it's the right thing to do, even if they don't have feet on the ground inside the EU or UK against which those governments might action. But nobody asks if they're subject to GDPR, do they?</p>\n", "score": 16 }, { "answer_id": 91606, "body": "<h2>Yes</h2>\n<p>The <a href=\"https://www.legislation.gov.uk/ukpga/2015/15/contents/enacted\" rel=\"noreferrer\">Consumer Rights Act 2015</a> applies to most contracts between traders and consumers that are subject to the jurisdiction of English and Welsh, Scottish, or Northern Irish courts. All this requires is sufficient nexus between the contract and the jurisdiction - if either the trader or the consumer is located in say, Nottingham, that’s sufficient.</p>\n<p>The Act cannot be contracted out of so even if the contract is to be governed under the law of another jurisdiction the CRA still applies. This is not an uncommon occurrence in the modern world. For example, an English trader sells to a person in Australia using a contract under Californian law (because most of their customers are American) will be subject to the UK Consumer Rights Act, Australian Consumer Law, and Californian contract law. Depending on the temperament of the judge, this will either be the best or the worst case of their life.</p>\n", "score": 10 }, { "answer_id": 91664, "body": "<p>Under UK law there is a very useful consumer protection provided by section 75 of the consumer credit act 1974. If I buy an item or service that costs between £100.01 and £29999.99 and use my <strong>credit card</strong> to pay for at least £0.01 towards the purchase and the supplier <strong>anywhere in the world</strong> fails to deliver then the UK based credit card company is liable to return the entire cost of the purchase, <strong>not just the part that was charged to the credit card</strong><br />\nAs a result there is no need to sue the supplier that is not under the jurisdiction of UK law.</p>\n", "score": 5 } ]

[ "united-kingdom", "european-union", "consumer-protection", "jurisdiction" ]

[ { "answer_id": 84909, "body": "<p>The &quot;public interest&quot; from a charging perspective is <em>not</em> the same as public popularity. From the <a href=\"https://www.cps.gov.uk/legal-guidance/charging-directors-guidance-sixth-edition-december-2020\" rel=\"noreferrer\">charging guide</a>, prosecutors:</p>\n<blockquote>\n<p>should consider each of the questions set out in paragraphs 4.14 (a) to (g) of the Code to determine the relevant public interest factors for and against prosecution. These factors, together with any public interest factors set out in any further relevant guidance or policy issued by the DPP, should enable prosecutors and police decision makers to form an overall assessment of the public interest.</p>\n</blockquote>\n<p>Those public-interest factors are listed <a href=\"https://www.cps.gov.uk/publication/code-crown-prosecutors\" rel=\"noreferrer\">here</a> (and each is further elaborated):</p>\n<ul>\n<li>How serious is the offence committed?</li>\n<li>What is the level of culpability of the suspect?</li>\n<li>What are the circumstances of and the harm caused to the victim?</li>\n<li>What was the suspect’s age and maturity at the time of the offence?</li>\n<li>What is the impact on the community?</li>\n<li>Is prosecution a proportionate response?</li>\n<li>Do sources of information require protecting?</li>\n</ul>\n", "score": 7 } ]

[ "criminal-law", "england-and-wales", "legal-terms", "prosecution" ]

[ { "answer_id": 83323, "body": "<p>The beginning of the tenancy is defined in <a href=\"https://www.legislation.gov.uk/ukpga/1988/50/section/45\" rel=\"nofollow noreferrer\">section 45(2) of the Housing Act 1988</a> as:</p>\n<blockquote>\n<p>the day on which the tenancy is entered into or, if it is later, the day on which, under the terms of any lease, agreement or other document, the tenant is entitled to possession under the tenancy.</p>\n</blockquote>\n<p>(This applies to the statutory instrument because it is made under section <a href=\"https://www.legislation.gov.uk/ukpga/1988/50/section/21B\" rel=\"nofollow noreferrer\">21B</a> of the 1988 Act, and definitions carry over from primary to secondary legislation in this way.) The definition probably matches what people would expect.</p>\n<p>Section 21B, and the 2015 Regulations, just say that the landlord has to give this information to their tenant. But it follows that if the tenancy has begun, then the landlord's obligation also begins. It binds from day 1. Therefore, the government is justified in saying in the booklet:</p>\n<blockquote>\n<p>The landlord, or the letting agent, should give the current version of this guide to the tenant when a new assured shorthold tenancy starts.</p>\n</blockquote>\n<p>Because of all the other paperwork involved, it's most common for the booklet to be given as part of the bundle of documents when the tenancy agreement is signed - so, along with the inventory and so on. This is typically not too distant in time from when the tenant is entitled to actually move in, and landlords will often only sign on the day itself even if the tenant has completed their part of the formalities earlier.</p>\n<p>Perhaps your doubt is about whether it is &quot;OK&quot; for the landlord to provide the booklet before the actual start date of the tenancy, as opposed to waiting until the tenancy is in effect. In the same way, we could imagine a prospective tenant wanting to see the energy performance certificate well before agreeing to sign anything. Does the landlord have to give them another copy on day 1 of the tenancy, even though it's the same as the copy they already have?</p>\n<p>In fact, there <em>are</em> specific different rules for those other items of information.</p>\n<ul>\n<li>The most recent gas safety certificate must normally be given &quot;to any new tenant of premises ... before that tenant occupies those premises&quot; (<a href=\"https://www.legislation.gov.uk/uksi/1998/2451/regulation/36/made\" rel=\"nofollow noreferrer\">SI 1998/2451 reg.36(6)(b)</a>)</li>\n<li>The EPC must be given to any <em>prospective</em> tenant at the earliest opportunity, and in any event must have been given to &quot;the person who ultimately becomes the buyer or tenant&quot; (<a href=\"https://www.legislation.gov.uk/uksi/2012/3118/regulation/6/made\" rel=\"nofollow noreferrer\">SI 2012/3118 reg.6</a>, and compare the definition of &quot;prospective tenant&quot; in <a href=\"https://www.legislation.gov.uk/uksi/2012/3118/regulation/3/made\" rel=\"nofollow noreferrer\">regulation 3</a>).</li>\n<li>The EICR must similarly be given to new and prospective tenants before they occupy the premises (<a href=\"https://www.legislation.gov.uk/uksi/2020/312/regulation/3/made\" rel=\"nofollow noreferrer\">SI 2022/312 reg.3(e)</a>).</li>\n</ul>\n<p>So these are meant to be given before the tenancy begins. They are part of what the prospective tenant should know before deciding whether to sign the agreement. The government's <a href=\"https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1084131/Model_agreement_for_a_shorthold_assured_tenancy.pdf\" rel=\"nofollow noreferrer\">model tenancy agreement</a> has checklists for landlord and tenant in relation to these documents, plus the &quot;How to rent&quot; booklet. That is consistent with the idea that the tenant is meant to have this information on the day that the tenancy is to begin, whether that's because they're just being given it now, or because they've already seen it. Armed with all the knowledge, they can now proceed to signing the agreement.</p>\n<p>Indeed, the content of the &quot;How to rent&quot; booklet makes it less useful if it's provided after the agreement has started. A lot of the material is about searching for a property, making sure that you are prepared to sign, and avoiding bad behaviour by potential landlords. Even though it would meet the letter of the law to only get this information after signing (but still on the day), it also meets letter and spirit to get it on the day, <em>before</em> signing. Or if you had it even earlier, it would be a bold argument to say that the landlord hadn't given you the information just because they emailed it to you a week before the tenancy actually began - especially if you have checked the appropriate little box on the tenancy agreement to say you received it.</p>\n<p>Nonetheless, because the only practical consequence for landlords is their ability to serve a s.21 notice, it's also common for them to play it safe and send another copy of the booklet before sending the notice itself. They will also often send updated copies as they arise, even though the regulation doesn't require it; some insurers ask for this just to really cement the chance of making a proper s.21 notice.</p>\n<p>I'm not aware of judicial precedent on <em>early</em> delivery of the booklet, but we can get some guidance from a recent Court of Appeal decision on s.21A, <a href=\"https://www.judiciary.uk/wp-content/uploads/2020/06/Approved-judgment-Trecarrell-House-Ltd-v-Rouncefield-18-06-2020.pdf\" rel=\"nofollow noreferrer\">Trecarrell House v Rouncefield [2020] EWCA Civ 760</a>. This case examined the nature of breaches and remedies that prevent serving an eviction notice. The conclusion was that if the tenant received a gas safety certificate &quot;before or with&quot; the s.21 notice, then the landlord has fulfilled their obligation - they are not irreparably in breach just becuse they did not give that information at the beginning. What matters for the Housing Act is that the tenant received it by the time that it was needed for the s.21 process. Likewise, it would seem that if the tenant had the &quot;How to rent&quot; booklet from the landlord before the beginning of their tenancy, then the landlord is not in breach - because the tenant has the information the whole time even though the act of giving the booklet predated the tenancy itself.</p>\n", "score": 3 } ]

[ "england-and-wales", "landlord", "assured-shorthold-tenancy" ]

[ { "answer_id": 91622, "body": "<p>It depends on the nature of the documents. <a href=\"https://www.law.cornell.edu/uscode/text/18/798\" rel=\"noreferrer\">This law</a> specifies that it is illegal to disclose or publish etc. classified information</p>\n<blockquote>\n<p>concerning the nature, preparation, or use of any code, cipher, or\ncryptographic system of the United States or any foreign government</p>\n</blockquote>\n<p>and there are 4 such subcategories. Violation results in imprisonment up to 10 years. This is an ordinary prohibition. Government employees may also be given access to classified information whose disclosure is not criminal in the general case, but would be illegal for the government employee to disclose owing to his position, under <a href=\"https://www.law.cornell.edu/uscode/text/18/1924\" rel=\"noreferrer\">this law</a>.</p>\n", "score": 9 }, { "answer_id": 91639, "body": "<p>While there are narrow exceptions, the general rule is that a member of the media who receives leaked material that the media member did not solicit is free of legal liability.</p>\n<blockquote>\n<p>On June 30, 1971, the Supreme Court decided, 6–3, that the government\nfailed to meet the heavy burden of proof required for prior restraint\ninjunction. The nine justices wrote nine opinions disagreeing on\nsignificant, substantive matters.</p>\n<p><em>Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free\npress is the duty to prevent any part of the government from deceiving\nthe people and sending them off to distant lands to die of foreign\nfevers and foreign shot and shell.</em></p>\n<p>— Justice Black's opinion in <em><a href=\"https://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States\" rel=\"noreferrer\">New York Times Co. v. United\nStates</a></em>, 403 U.S. 713 (1971) (a.k.a. the <a href=\"https://en.wikipedia.org/wiki/Pentagon_Papers\" rel=\"noreferrer\">Pentagon Papers</a>\ncase).</p>\n</blockquote>\n<p>(via the Pentagon Papers link).</p>\n<p>There is also a non-binding Justice Department policy of not prosecuting reporters in connection with leaks of government information and of <a href=\"https://www.justice.gov/opa/pr/attorney-general-garland-announces-revised-justice-department-news-media-policy\" rel=\"noreferrer\">not trying to obtain information in their cases from reporters except in a few narrow kinds of cases</a>.</p>\n<p>As user6726 notes <a href=\"https://law.stackexchange.com/a/91622/9517\">in another answer</a>, this immunity from liability isn't absolute.</p>\n<p>But protections from liability for reporters who do published leaked confidential government information is also much broader even than in most countries that have strong protections for freedom of the press.</p>\n<p>Very few members of the media have been prosecuted successfully for leaking confidential information since this landmark 1971 ruling, although many government officials and members of the U.S. military have been successfully prosecuted and convicted for leaking confidential information to members of the media in the same time period.</p>\n<p><strong>The Related Issue Of A Reporter's Privilege</strong></p>\n<p>Closely related to this question is the issue of whether there should be a <a href=\"https://www.rcfp.org/reporters-privilege/\" rel=\"noreferrer\">reporter's privilege</a> (a.k.a. &quot;shield laws&quot;) allowing them to not disclose their confidential sources which is recognized in some, but not all, U.S. jurisdictions.</p>\n<p>Many reporters have been incarcerated for contempt of court for refusing to disclose their confidential sources, despite being compelled to disclosure this pursuant to a valid subpoena, in various U.S. jurisdictions when courts determine that the reporter lack a reporter's privilege.</p>\n<p><a href=\"https://i.stack.imgur.com/LVv9d.png\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/LVv9d.png\" alt=\"enter image description here\" /></a></p>\n<p><em>The image is from the &quot;reporter's privilege&quot; link.</em></p>\n<p>The <a href=\"https://www.rcfp.org/introduction-to-the-reporters-privilege-compendium/\" rel=\"noreferrer\">federal courts haven't reached a perfect consensus on the issue</a> in the wake of an ambiguous ruling on the question by the U.S. Supreme Court known as the <em>Branzburg</em> case was decided in 1972 with a fractured ruling on an only partially related issue.</p>\n<blockquote>\n<p>in the decades since <em>Branzburg</em> was decided, most federal appellate\ncourts have recognized some form of a qualified privilege for\njournalistic materials. The U.S. Courts of Appeal for the Seventh and\nEighth Circuits are the only circuits that have not yet definitively\ndone so. But the First, Second, Third, Fourth, Fifth, Sixth, Ninth,\nTenth, Eleventh, and D.C. Circuits have recognized a privilege in at\nleast some cases, derived from the First Amendment. And at least the\nThird Circuit has also described the privilege as arising from federal\ncommon law.</p>\n</blockquote>\n", "score": 6 } ]

[ "united-states", "us-federal-government", "non-disclosure", "journalism", "freedom-of-press" ]

[ { "answer_id": 91619, "body": "<p>Yes, it can. <a href=\"https://www.legalservicesindia.com/article/1058/Relation-Between-Part-III-And-Part-IV-Of-Constitution-Of-India-Changing-Trends.html\" rel=\"nofollow noreferrer\">This analysis</a> is IMO very informative of the role of Part IV in Indian law, especially considering a comparison to the related concept of constitutional (fundamental) rights. Fundamental rights are justiceable, directive policies are not. Contraventions of rights can be rescinded by courts, but the courts cannot declare any law to be void because it violates these directives. The directives neither give nor take away legislative power: they are suggestions.</p>\n", "score": 3 } ]

[ "indian-constitutional-law" ]

[ { "answer_id": 91612, "body": "<p>There's no such right, but a government could create such a right just as it's possible to guarantee a right to telephone service or to public libraries. Some governments do this, some don't. Rights of this nature are not so fundamental as to be found in documents such as the <a href=\"https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights\" rel=\"nofollow noreferrer\">Universal Declaration of Human Rights</a>.</p>\n", "score": 3 }, { "answer_id": 91614, "body": "<p>It depends on what country you are in, naturally. In the US, you have a right to access an AI, at least as long as you correctly understand what that right is. It is not illegal to access an AI, though there is no guarantee that you will <em>provided</em> access, free or otherwise. If you can find an AI and find a way to access it, you will not be punished in any manner.</p>\n<p>The government can by law restrict your freedom to exercise rights, even in clearly-articulated constitutionally guaranteed rights, such as that right guaranteed by the 2nd Amendment. Rights in the modern legal view are not absolute, they can be subordinated to other governmental concerns. You have the right to dispose of your property as you see fit, with some exceptions such as setting your house on fire without a burn permit (depending on local ordinances).</p>\n<p>Restrictions on your exercise of your rights, especially those that are constitutionally protected, require a compelling government interest. Your right to access an AI follows from First Amendment, as does your right to read books, watch movies, buy a computer on which to read and write books and watch or produce movies.</p>\n<p>Note, however, that this depends on a particular Natural Law understanding of rights, as facts intrinsic to being a person, and not as a boon from the sovereign, which is the more traditional view of the notion of &quot;rights&quot;. Both perspectives exist in legal systems, and the choice between these viewpoints is purely political.</p>\n", "score": 2 }, { "answer_id": 91638, "body": "<p>In <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged &#39;germany&#39;\" aria-label=\"show questions tagged &#39;germany&#39;\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a>, the <strong>freedom of speech</strong> is matched by a <strong>freedom to listen</strong>, the right to inform oneself &quot;from publicly available sources.&quot; (<a href=\"https://www.gesetze-im-internet.de/gg/BJNR000010949.html\" rel=\"nofollow noreferrer\">Art. 5 GG</a>)</p>\n<p>These freedoms are not unlimited. Just as speech can be limited by a prohibition of slander, there is no right to play heavy metal at maximum volume when normal people want to sleep. Yet no limitation of these freedoms may touch the &quot;core&quot; of a freedom. Notably, the words of the freedom <em>of</em>\nspeech imply that the speaker would be a human, while the freedom <em>to</em> listen does not imply that the speaker must be human. But ChatGPT is much too young to have created established legal precedent.</p>\n<p>On the other hand, there is talk in Europe of banning or more likely regulating AI. Such regulations might well be constitutional if they are seen as necessary and proportionate in the protection of <em>other</em> constitutional rights. I can see two issues here:</p>\n<ul>\n<li>The owner of the AI, not in Europe, may be <strong>unwilling to comply</strong> with regulations because doing so would be incompatible with the business model. AI may have started as a research project, or a proof-of-concept, but sooner or later owners will have to monetize it to afford the operation. Their model could be paywalled access, or targeted advertising, or the generation and sale of user profiles. The latter two might become prohibited.</li>\n<li>The owner of the AI may be <strong>unable to comply</strong> with regulations because they require things the AI is unable to do. For instance, there are suggestions that any decision by an AI which affects humans must be documented in a way that is comprehensible to human auditors. The owner of the AI might be unable to keep the AI from prohibited actions, and the system might be incomprehensible to humans.</li>\n</ul>\n", "score": 1 } ]

[ "human-rights", "artificial-intelligence" ]

[ { "answer_id": 91508, "body": "<p>Depends on where you are, and what law would be broken and why.</p>\n<p>In <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged &#39;germany&#39;\" aria-label=\"show questions tagged &#39;germany&#39;\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a>, there is the concept of <em>rechtfertigender Notstand</em> (justifying emergency). If there is a present danger to a <em>Rechtsgut</em> (legally protected interest), one can take necessary and proportional steps against another legally protected interest.</p>\n<p>Say I walk through a winter landscape and there is a person who has broken through the ice of a lake (a present danger of the loss of life). Nearby is a yard with a ladder leaning on a shed. I would be allowed to enter the yard (normally trespas) and take the ladder (normally theft) in the rescue attempt (life counts for more than a ladder, using a ladder is necessary/appropriate for an ice rescue).</p>\n<p>The details are, as usual for Law SE, complicated.</p>\n", "score": 37 }, { "answer_id": 91517, "body": "<p>While the question asks generally about &quot;necessity&quot;-type defenses, there is a need to distinguish between two separate concepts.</p>\n<h2>Good Samaritan laws</h2>\n<p><a href=\"https://en.wikipedia.org/wiki/Good_Samaritan_law\" rel=\"noreferrer\">Good samaritan laws</a> &quot;offer legal protection to people who give reasonable assistance to those who are, or whom they believe to be injured, ill, in peril, or otherwise incapacitated&quot;.</p>\n<p>The typical example would be attempting CPR on an unconscious person and breaking one of their ribs. Breaking someone’s rib would usually be a tort, but as long as the rescue attempt was done in a &quot;reasonable&quot; manner, the rescuer will not be on the hook for medical costs. What is &quot;reasonable&quot; varies across jurisdictions.</p>\n<p>Those laws usually imply a subjective element. If a random person at the site of a car crash moves an unconscious body on the curbside to free the road for traffic, that’s probably reasonable. If a first-aid instructor does it, less so (such a person would know that trauma victims should not be moved unless strictly necessary). If the same first-aid instructor moves an unconscious body away from a riverside bed during heavy rain, that might be reasonable; even if it later turns out the rain subsided and no flood occurs, that was a reasonable concern at the time the decision had to be taken.</p>\n<p>At <a href=\"/questions/tagged/common-law\" class=\"post-tag\" title=\"show questions tagged &#39;common-law&#39;\" aria-label=\"show questions tagged &#39;common-law&#39;\" rel=\"tag\" aria-labelledby=\"tag-common-law-tooltip-container\">common-law</a>, those laws only apply when the rescuer has no duty of care. For instance, suppose a ferris wheel I was riding suddenly catches fire. The ferris wheel operator stops the wheel, sets up mattresses below and asks patrons to jump down onto them to get to safety. By doing so, I break my rib. The ferris wheel operator might not be on the hook for my broken rib, assuming the &quot;jump onto mattresses&quot; rescue plan was the only one available at the time. However, the ferris wheel owner still had a duty of care towards patrons, and should have provided a safe environment that did not require jumping from the height of the wheel. I can therefore still sue for medical expenses. The Good Samaritan law does not &quot;erase&quot; liability caused by creating the dangerous circumstances in the first place.</p>\n<p><a href=\"/questions/tagged/civil-legal-system\" class=\"post-tag\" title=\"show questions tagged &#39;civil-legal-system&#39;\" aria-label=\"show questions tagged &#39;civil-legal-system&#39;\" rel=\"tag\" aria-labelledby=\"tag-civil-legal-system-tooltip-container\">civil-legal-system</a> would roughly follow the same principles (no tort during a reasonable rescue attempt). The only significant addition is (in most but not all civil law countries) a duty to rescue. The rescue only need be &quot;reasonable&quot; - for instance, if you see a child drowning in the river, you must call the emergency services, but you usually do not have to try to go into the water yourself (because that would put yourself at risk). However, the risk calculation changes depending on whether you are an eighty-year-old teacher or a thirty-year-old Olympic swimmer.</p>\n<p>Those laws are about limiting the liability of the rescuer towards the rescued. They do not cover relations with third parties (such as a bad guy on the scene).</p>\n<h2>Self-defense</h2>\n<p>Self-defense is the act of defending against a threat via violent (and otherwise illegal) means. The exact scope of self-defense varies across jurisdictions, but to my knowledge it always extends to defending <em>others</em> against a &quot;bad guy&quot;, not necessary oneself. (The English &quot;self&quot;-defense is a bit misleading in that respect. The French, Spanish or Italian term translates to &quot;legitimate defense&quot;; the German or Dutch term translates to &quot;necessity/urgency defense&quot;.) The scope of what is allowed under which circumstances depends a lot across jurisdictions.</p>\n<p>In general, the defense requires a reasonable subjective belief that the threat is imminent (you don’t get to shoot a murderer fleeing the scene), and that the countermeasures taken be proportionate (you don’t get to shoot a brat who is tickling your child).</p>\n<p>Some jurisdictions and circumstances require that no otherwise-legal course of action be reasonable (typically, when defending against a threat to yourself, that you cannot flee the scene). Others allow it regardless. Some jurisdictions and circumstances allow lethal action against a threat towards goods; others do not.</p>\n", "score": 26 }, { "answer_id": 91636, "body": "<p>One of the reasons the US Constitution protect the right to a jury trial is that juries will sometimes recognize their right and duty to acquit people who have violated a statute whose enforcement in the case before them would be offensive to principles of justice and freedom. If all twelve jurors, seeing the defendant's actions, would be inclined to admit that they would likely have done the same thing in the defendant's situation, they should unanimously vote for acquittal regardless of what the statutes may say.</p>\n<p>Judges and prosecutors don't want jurors to be aware of this right and duty, but it nonetheless may influence decisions about what cases to prosecute. If the public as a whole would believe that the defendant behaved in a manner contrary to statute, but justice and freedom would be ill served by a conviction, prosecuting the defendant could attract attention to the jury's rights and duties--attention that prosecutors really don't want.</p>\n", "score": 0 } ]

[ "criminal-law", "court", "rules-of-court", "good-samaritan" ]

[ { "answer_id": 91635, "body": "<p>Presumably by &quot;is illegal&quot; you mean &quot;violates copyright law&quot;. Copyright infringement is simply &quot;copying / distributing without authorization&quot;, which refers to the original work and not some other work. The act of originally writing a book is not &quot;copying&quot; (likewise &quot;taking a picture&quot;, etc), so the act of writing a book using pirated software is also not copying and not infringement. Nevertheless, the scope of remedies for the original infringement is not limited to just the cost of the infringed work. Under <a href=\"https://www.copyright.gov/title17/92chap5.html\" rel=\"noreferrer\">17 USC 504(b)</a>,</p>\n<blockquote>\n<p>The copyright owner is entitled to recover the actual damages suffered\nby him or her as a result of the infringement, and <strong>any profits of the\ninfringer that are attributable to the infringement and are not taken\ninto account in computing the actual damages</strong>.</p>\n</blockquote>\n<p>This is sufficiently open-ended that profits from the sale of an original work created using infringed software could be attributable to the infringement.</p>\n", "score": 5 } ]

[ "copyright", "software" ]

[ { "answer_id": 91631, "body": "<p>Currently there is nowhere in the USA where polygamy is legal. So regardless of their sexual or gender expression or orientation, being married to MORE THAN ONE person at the same time is illegal.</p>\n<p>If, however, it turned out that someone had more than one spouse at their death, I'm sure that property distribution would be a matter for the probate court to sort out.</p>\n<p>As far as legally-married &quot;trans spouses&quot;, for lack of a better term, I don't see why that would that impact inheritance in any way?</p>\n", "score": 9 } ]

[ "united-states", "marriage", "inheritance" ]

[ { "answer_id": 4631, "body": "<p>Like many US legal questions, there is a <a href=\"https://www.fas.org/sgp/crs/misc/94-166.pdf\">Congressional Research Service report</a> about this.</p>\n\n<p>It is not generally a violation of US law to do things in another country where the only connection with the US is that the offender is a US citizen. However, there are a number of general situations where the US has jurisdiction over federal crimes if either the victim or offender is a US citizen: if a place isn't within the jurisdiction of any country (e.g. Antarctica); a place used by a US government entity (like an embassy or airbase); crimes by American soldiers and those employed by or accompanying the military; etc. These are considered to be within the special maritime and territorial jurisdiction of the US.</p>\n\n<p>Other laws apply if they say so. For instance, any US national committing war crimes inside or outside the US can be punished under US law; ditto for treason. The Foreign Corrupt Practices Act makes it illegal for a US national to bribe a foreign official anywhere outside the US for business reasons (if it's inside the US, there are more requirements). For instance, you aren't allowed to pay kickbacks to a foreign government's acquisition officer to buy your product. The CRS report has more (it doesn't include the FCPA, but that appears to be an oversight).</p>\n\n<p>Note that extraterritorial jurisdiction doesn't just apply if the person is a US national. US laws can also confer it if the victim is a US national, if the offense has a significant US component, if it's directed towards the US, if it's in violation of international law and the offender later <em>turns up</em> in the US, etc.</p>\n\n<p>For your scenarios:</p>\n\n<ol>\n<li><p>Dual citizenship doesn't matter. A US citizen is a US citizen, and is required to obey all laws that apply to US citizens, unless those laws explicitly exempt dual citizens. A dual citizen isn't treated differently by the government; as far as the US government is concerned, their US citizenship is all that matters (except for certain specific purposes like security clearances). In <a href=\"https://supreme.justia.com/cases/federal/us/343/717/\">Kawakita v. United States</a>, a US-Japanese dual citizen was convicted of treason against the US for aiding Japan in WWII.</p></li>\n<li><p>Depends. Plenty of these laws have no requirement that anything related to the crime actually happen in the US; for sex tourism, the subsection about traveling in foreign commerce for the purposes of engaging in illicit sexual conduct is followed by a subsection about <em>engaging</em> in illicit sexual conduct in foreign places. \"Travel with the purposes of X\" or \"with intent to X\" means you must have intended to do X at the time you traveled, but most extraterritorial laws don't control travel with intent to X (they cover X directly).</p></li>\n<li><p>Depends on the law. Some laws (like child sex tourism) apply to any permanent resident of the US as well as any citizen. Some apply to anyone, because they're based on a conspiracy started in the US. Others apply just to US nationals; a noncitizen isn't bound by them (for instance, no one but a US national can be charged with treason against the US, for obvious reasons). Still others apply to anyone who later turns up in the US, even if that is literally the only connection between the US and the offense (this is basically reserved for crimes against international law, like genocide).</p></li>\n</ol>\n", "score": 15 } ]

[ "united-states", "criminal-law" ]

[ { "answer_id": 91579, "body": "<p>Each state has its own system of designating different kinds of schools, but the term &quot;charter school&quot; generally refers to a public school that is subject to less central administrative supervision than an ordinary public school.</p>\n<p>But the relationship between a student and a school in a charter school, unlike a private school, is not primarily contractual in nature. The charter school has a contractual relationship with the school district (of which the students may sometimes be third-party beneficiaries), but the student does not have a contractual relationship with the school.</p>\n", "score": 13 }, { "answer_id": 91577, "body": "<p>In Washington, <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=28A.150&amp;full=true\" rel=\"noreferrer\">RCW 28A.150.010</a> answers the question as follows:</p>\n<blockquote>\n<p>Public schools means the common schools as referred to in <a href=\"https://leg.wa.gov/CodeReviser/Documents/WAConstitution.pdf\" rel=\"noreferrer\">Article IX\nof the state Constitution</a>, charter schools established under chapter\n<a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=28A.710\" rel=\"noreferrer\">28A.710 RCW</a>, and those schools and institutions of learning having a\ncurriculum below the college or university level as now or may be\nestablished by law and maintained at public expense.</p>\n</blockquote>\n<p>So, yes, they are &quot;public schools&quot;.</p>\n<p>The question of whether a school is &quot;considered private&quot; is likely to mislead a person investigating laws regarding schools, because law &quot;deem&quot; or &quot;declare&quot;, but also do so in specific ways and for specific purposes. The primary consideration underlying charter schools is the fact that the states have all assign to themselves the duty to provide &quot;free public education&quot;, which is built into state constitutions. The Washington Constitution says &quot;The legislature shall provide for a general and uniform system of public schools&quot;, and it also mentions &quot;common schools&quot;, whereas Delaware's Constitution does not mention &quot;common schools&quot;. Nobody's constitution spells out explicitly what a &quot;public school&quot; is – that's where specific laws come into play. By defining charter schools to be a kind of public school, the legislature has brought those schools within the scope of the state's duty, in a manner that does not exist for e.g. Catholic schools.</p>\n<p>There are states (e.g. North Dakota) that don't have charter schools at all. Among the states that do have such schools, the very concept presupposes access to public funds (in North Dakota, would-be charter schools are simply 'private schools'). It is not essential that a legislature declare a charter school to be a public school (as opposed to a common school), what is essential is providing public funding, and <em>some</em> level of government oversight.</p>\n", "score": 7 } ]

[ "school-law" ]

[ { "answer_id": 91626, "body": "<p>If you have sufficient grounds to fear that someone is about to infringe on one of your rights, you can go to court to obtain an injunction against that person. This is a court order to refrain from some particular action. In many cases, the point of this is just to have the legal debate on whether the anticipated action is actually legal or not before it happens rather than after. However, the punishment for violating the injunction is set by the relevant judge based on how important it is to dissuade the target from actually doing the thing, and how extensive the punishment needs to be in order to achieve this.</p>\n<p>After a few rounds of your guy doing the copyright infringement, getting an injunction against him doing it again should be quite straight-forward. And if he violates that, it would be reasonable to ask for a significantly higher fine next time, and then more, and more.</p>\n<p>Injunctions could also involve preparatory actions, eg prohibit the guy to even approach a computer, if this is deemed necessary to prevent reoffending.</p>\n", "score": 9 }, { "answer_id": 91629, "body": "<blockquote>\n<p>do the law and/or the copyright owner actually have any teeth to stop this person from continuing to distribute, or can they just ride out the punishments and continue in perpetuity?</p>\n</blockquote>\n<p>Most copyright enforcement is not criminal. Typically, the copyright holder will sue for damages rather than depend on a prosecutor to bring criminal charges. Civil damages may be calculated from actual profits of the infringer and losses of the copyright holder or they may be awarded according to a statutory scheme where the maximum is $150,000 (<a href=\"https://www.law.cornell.edu/uscode/text/17/504\" rel=\"noreferrer\">17 USC 504</a>).</p>\n<p>Even if the enforcement in a particular case <em>is</em> criminal, <a href=\"https://www.law.cornell.edu/uscode/text/18/2323#c\" rel=\"noreferrer\">18 USC 2323(c)</a> requires the court to award restitution to the victim. The maximum financial cost to the infringer, therefore, is greater than $250,000 per offense.</p>\n<p>Even the $250,000 limit for the criminal fine may be exceeded if the infringer's profit or the copyright holder's loss exceeds $125,000, thanks to <a href=\"https://www.law.cornell.edu/uscode/text/18/3571#d\" rel=\"noreferrer\">18 USC 3571(d)</a>:</p>\n<blockquote>\n<p>Alternative Fine Based on Gain or Loss.—\nIf any person derives pecuniary gain from the offense, or if the offense results in pecuniary loss to a person other than the defendant, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss, unless imposition of a fine under this subsection would unduly complicate or prolong the sentencing process.</p>\n</blockquote>\n<p>Even though the infringer may be able to afford this without any difficulty, the copyright holder will receive at least as much income from the restitution or civil award as would have been due under a license for the copyright.</p>\n<p>But at its root, this question seems to be more about the ability of the courts to enforce <a href=\"https://www.law.cornell.edu/uscode/text/17/502\" rel=\"noreferrer\">injunctions</a>. Courts' ability to enforce injunctions is discretionary, so if the statutory maximum fine for a felony seems insufficient to deter a billionaire from committing copyright infringement, the court can issue an injunction and enforce it with a fine that would be sufficient. <a href=\"https://www.law.cornell.edu/uscode/text/18/401\" rel=\"noreferrer\">18 USC 401</a>:</p>\n<blockquote>\n<p>A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—</p>\n<p>...</p>\n<p>(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.</p>\n</blockquote>\n", "score": 5 }, { "answer_id": 91627, "body": "<h2>Of course</h2>\n<p>Providing you are willing to accept the sanction, you can do anything you want: murder, genocide, making tea the way Americans do, and copyright violation.</p>\n<p>This sign:</p>\n<p><a href=\"https://i.stack.imgur.com/IvQdm.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/IvQdm.png\" alt=\"No Parking\" /></a></p>\n<p>Merely advisory providing you don't mind being fined, having your car clamped and possibly towed.</p>\n", "score": 1 } ]

[ "united-states", "copyright", "intellectual-property" ]

[ { "answer_id": 91104, "body": "<blockquote>\n<p>Isn't there tension between these two parts of the opinion?</p>\n</blockquote>\n<p>There is perhaps some tension, but the resolution of that tension is clear. There is certainly no self contradiction.</p>\n<p>The most obvious tension is between the chief justice's line of reasoning and Justice Ginsburg's. It may be described thus:</p>\n<ol>\n<li><p>Justice Ginsburg would uphold the statute by interpreting it as a tax, avoiding the need to consider whether it is authorized as a command under the commerce clause.</p>\n</li>\n<li><p>Chief Justice Roberts notes that the statute reads on its face as a command and says that this requires the court to find that this &quot;more natural&quot; reading is &quot;not authorized&quot; before it can consider other interpretations under the &quot;duty to construe a statute to save it, if fairly possible.&quot; Only by following this line of reasoning may the court consider whether the provision may be upheld under the power of taxation.</p>\n</li>\n</ol>\n<p>The reasoning paraphrased in the first paragraph of this question explains that the court may go beyond congress's labels -- the claimed basis of its authority -- when it interprets a statute. The quotation from the opinion explains that it is however necessary to consider congress's claimed source of authority first, before moving on to other possible sources.</p>\n<p>There is a bit of a chicken-and-egg nature to this: if we don't consider (and reject) the commerce clause argument, we can't justify the statute as a tax, but if we can't justify it as a tax, we have to consider the commerce clause argument. Ginsburg's reasoning would avoid this paradox.</p>\n<p>Therefore, to the extent that a chicken-and-egg paradox is &quot;tension,&quot; yes, there's internal tension in Roberts' reasoning, but not outright contradiction. The more significant tension is between Ginsberg's desire to avoid considering the commerce clause justification and Roberts' reasoning that requires it.</p>\n", "score": 5 }, { "answer_id": 91621, "body": "<p>There is no contradiction.</p>\n<p>Congress's invoked authority cannot be read as taxing authority, strained reading or otherwise. Congress intended a penaltly / command, there are no two ways around this. Roberts found that the penalty as such is unauthorised but Woods v. Cloyd W. Miller Co. allows a statue to be upheld on constitutional authority other than which Congress invoked. Nonetheless, Roberts in Part III-D limits Woods v Miller's implications to only saving constructions.</p>\n<p>As first resort one must always consider the invoked authorities, which Roberts says &quot;reads more naturally&quot;. (Not that his saving construction is a &quot;less natural&quot; or &quot;strained&quot; reading of the invoked authority. It in fact altogather disregards Congress's intended invoked authority as Woods v Miller allows. But Roberts considers the most &quot;natural&quot; reading of a statute's authority, and thus the required first resort, to be that which follows invoked authorites.) Only afterwards may other options be considered.</p>\n", "score": 0 } ]

[ "constitutional-law", "tax-law", "us-supreme-court", "health-insurance" ]

[ { "answer_id": 91615, "body": "<p>Yes, &quot;other directions&quot; refer to the layout of the roadway beyond the traffic signal appropriate for vehicles facing the aforementioned traffic control light. One could have a right turn lane immediately after the traffic control light and realistically, there could be a green arrow for that lane as well as a green arrow for left turns (more common).</p>\n<p>When crossing traffic from the other direction is not a factor, the green arrows provide for movement of vehicles that might otherwise be required to be detained.</p>\n<p>Your linked site references a flashing green signal, which I have not seen in the USA, probably because it is the equivalent of a non-flashing green signal.</p>\n", "score": 1 } ]

[ "traffic" ]

[ { "answer_id": 91610, "body": "<p>Since 1999, <a href=\"https://erskinemay.parliament.uk/section/4985/explanatory-notes/\" rel=\"nofollow noreferrer\">explanatory notes</a> have been included with most Acts. Explanatory notes are:</p>\n<blockquote>\n<p>created by the government department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Public Acts except Appropriation, Consolidated Fund, Finance and Consolidation Acts.</p>\n</blockquote>\n<p>They &quot;provide a summary of and background to the bill and explain its various provisions.&quot;</p>\n<p>You can look up any U.K. public Act <a href=\"https://www.legislation.gov.uk/ukpga\" rel=\"nofollow noreferrer\">here</a>. Those with explanatory notes will provide a link titled &quot;explanatory notes.&quot; For example, <a href=\"https://www.legislation.gov.uk/ukpga/2010/15/notes\" rel=\"nofollow noreferrer\">here</a> are the explanatory notes for the <em>Equality Act 2010</em>.</p>\n", "score": 2 } ]

[ "united-kingdom", "legislative-intent", "legislation" ]

[ { "answer_id": 91608, "body": "<p>From the <a href=\"https://www.legislation.gov.uk/ukpga/2010/15/notes\" rel=\"nofollow noreferrer\">explanatory notes</a>:</p>\n<blockquote>\n<ol start=\"3\">\n<li><p>Domestic discrimination law has developed over more than 40 years since the first Race Relations Act in 1965. Subsequently, other\npersonal characteristics besides race have been protected from\ndiscrimination and similar conduct, sometimes as a result of domestic\ninitiatives and sometimes through implementing European Directives.</p>\n</li>\n<li><p>The domestic law is now mainly contained in the following legislation (where applicable, as amended):</p>\n<ul>\n<li><p>the Equal Pay Act 1970;</p>\n</li>\n<li><p>the Sex Discrimination Act 1975;</p>\n</li>\n<li><p>the Race Relations Act 1976;</p>\n</li>\n<li><p>the Disability Discrimination Act 1995;</p>\n</li>\n<li><p>the Employment Equality (Religion or Belief) Regulations 2003;</p>\n</li>\n<li><p>the Employment Equality (Sexual Orientation) Regulations 2003;</p>\n</li>\n<li><p>the Employment Equality (Age) Regulations 2006;</p>\n</li>\n<li><p>the Equality Act 2006, Part 2;</p>\n</li>\n<li><p>the Equality Act (Sexual Orientation) Regulations 2007.</p>\n</li>\n</ul>\n</li>\n<li><p>The main European Directives affecting domestic discrimination legislation are:</p>\n<ul>\n<li>Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin;</li>\n<li>Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation;</li>\n<li>Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods\nand services;</li>\n<li>European Parliament and Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal<br />\ntreatment of men and women in matters of employment and occupation<br />\n(recast). Also relevant in this context is Article 157 of the Treaty<br />\non the Functioning of the European Union.</li>\n</ul>\n</li>\n</ol>\n<p>...</p>\n<ol start=\"21\">\n<li>The Act does not itself implement EU Directives for the first time. It replaces earlier legislation which has implemented EU Directives, most of which is set out in paragraph 4 above.</li>\n</ol>\n</blockquote>\n", "score": 0 } ]

[ "united-kingdom", "european-union", "discrimination", "equality-act-2010", "european-council" ]

[ { "answer_id": 91527, "body": "<blockquote>\n<p>Some claims are dismissed as de minimis while others are said to be\nfrivolous. Are these two notions completely synonymous?</p>\n</blockquote>\n<p>No. they aren't even that similar in meaning.</p>\n<blockquote>\n<p>If not then what’s the difference between them?</p>\n</blockquote>\n<p><strong>Frivolous</strong> means not having a basis in the law or a sincere and reasonable effort to extend the law. Sometimes the term frivolous is also used in a broader sense to include not having a factual basis, even though it would be a valid lawsuit if the facts alleged were true. But a narrower definition calls something without a factual basis <strong>groundless</strong> and calls something without a legal basis <strong>frivolous</strong>.</p>\n<p>For example, a lawsuit for breach of contract in circumstances where you are suing over a contract you wanted to enter into with someone even though you acknowledge that they didn't agree to that contract would be frivolous. You can only sue for breaches of contracts that are actually entered into and it is frivolous to bring a lawsuit when you don't argue that a contract was formed.</p>\n<p>A lawsuit alleging that a contract was entered into with someone and breached when, in fact, the other party to the alleged contract never interacted with the person bringing the lawsuit would be groundless, and within a broader sense of the term, frivolous as well.</p>\n<p><strong>De minimis</strong> means that the magnitude of the harm is so small that the courts won't entertain a lawsuit to address the wrong even though the harm would otherwise be something that someone could bring a lawsuit over.</p>\n<p>For example, if you sued someone for negligence for slightly bumping into when you were walking down a crowded sidewalk, even though you suffered no physical injury, and you weren't even made to fall or drop something as a result, that might be a lawsuit that is dismissed because the harm was <em>de minimis</em>.</p>\n<p>Whether a claim can be dismissed for alleging only <em>de minimis</em> harm varies by the nature of the cause of action. Some legal theories will award nominal damages (e.g. $1), if you prevail on the other elements of the claim but show only nothing more than <em>de minimis</em> harm.</p>\n<p>For example, in Colorado, proof of damages are not necessary to prevail on a claim for breach of contract or negligence <em>per se</em>, and nominal damages will be awarded even if you fail to show damages.</p>\n<p>Other legal theories make a showing of more than <em>de minimis</em> harm one of the elements that must be proved as part of the cause of action for there to be any legal liability at all.</p>\n<p>For example, in Colorado, a showing of more than <em>de minimis</em> damages is necessary in a negligence claim.</p>\n<p>This is a distinction which matters a lot in cases where an award of costs and/or attorney fees depends upon which party prevails on particular causes of action.</p>\n<p>In the federal courts, there is an additional subject-matter jurisdictional threshold of &quot;standing&quot;, as a matter of constitutional law, which requires a showing that the person bringing a claim suffered &quot;actual injury&quot; which arguably involved more than a <em>de minimis</em> harm. But federal courts have recognized that at least for some kinds of lawsuits, standing is present even when the claim is only for nominal damages.</p>\n<p>A lawsuit seeking a remedy for a <em>de minimis</em> harm would rarely be considered to be frivolous.</p>\n", "score": 3 } ]

[ "legal-terms", "any-jurisdiction" ]

[ { "answer_id": 91588, "body": "<p>There is nothing extraterritorial about these laws. If a company sells a good or provides a service to individuals based in the EU, then this good or service has to comply with EU laws.</p>\n<p>This concept is self-evident for physical goods that are produced anywhere in the world and then sold in the EU and the GDPR just applies this concept to services provided over the internet. The same legal concept also holds in all other major jurisdictions.</p>\n<p>The only thing that makes this more complicated for the GDPR is the actual enforcability of these laws but that is a technical issue not a legal one.</p>\n", "score": 4 } ]

[ "united-kingdom", "gdpr", "european-union", "jurisdiction", "extraterritorial-jurisdiction" ]

[ { "answer_id": 5883, "body": "<p>To use Texas as an example:</p>\n\n<blockquote>\n <p>Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:</p>\n \n <p>(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; </p>\n \n <p>(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or</p>\n \n <p>(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.</p>\n</blockquote>\n\n<p>If no reasonable person would think the contact is offensive, and no injury is involved, no assault was committed. This is a fairly common definition of \"assault.\"</p>\n", "score": 10 }, { "answer_id": 5911, "body": "<p>This has been a long-considered matter. Under common law, unwanted incidental touching - say, in the context of a public space - is not illegal per se.</p>\n\n<p>In <em>Cole v. Turner</em> (1704) 87 ER 907, Holt CJ said that:</p>\n\n<blockquote>\n <p>First, the least touching of another in anger is a battery.<br>\n Secondly, if two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery.<br>\n Thirdly, if any of them use violence against the other, to force his way in a rude in ordinate manner, it will be a battery; or any struggle about the passage to that degree as may do hurt, will be a battery...</p>\n</blockquote>\n\n<p>Now, I'm not sure how far American common law has diverged from English common law in this respect; it's possible that some US court has held that even such trivial contact is battery. However, I would think it unlikely, as such contact happens in the course of everyday life - a test later applied by English courts - and to make such contact tortious would likely be extremely detrimental to the functioning of modern society.</p>\n\n<p>There's some discussion in comments about whether the fact that some contact is <em>incidental</em> or <em>deliberate</em> makes a difference - I submit that it does not, on the basis that unless we are incapacitated and unable to make decisions regarding the movements of our own bodies, all actions we take are deliberate.</p>\n\n<p>It is also not simply a case of <em>implied consent</em> because then one could just hold up a sign purporting to withdraw such consent, and then bring actions in battery against everyone who brushes past them in a crowd.</p>\n\n<p>As for specific criminal statutes, I can't prove a negative, but I haven't found anything that would criminalize the incidental touching of another, even in crowded places. As in Texas law, criminal assault generally requires some element of intent to harm or provoke, or the knowledge that such actions are likely to harm/provoke.</p>\n", "score": 8 }, { "answer_id": 5878, "body": "<p>Actually, as a general matter, unwanted 'touching' or if you prefer, incidental bodily contact, is most certainly NOT unlawful.</p>\n\n<p>You have no valid expectation of a sphere of invincibility in public. </p>\n", "score": 4 } ]

[ "united-states", "criminal-law", "tort" ]

[ { "answer_id": 25770, "body": "<p>First, I don't know what \"Sir is\" means - I assume it is a typo of \"sue us\" and answer on that basis. Also, you don't tell us where you are and local law differs - I will assume US law.</p>\n\n<p>They can't sue you successfully - that's not how the \"Online Copyright Infringement Liability Limitation Act\" works.</p>\n\n<p>The way it works is:</p>\n\n<ol>\n<li>You give the \"online service provider\" (YouTube) a notice of the claimed infringement that complies with section 512.</li>\n<li>YouTube must expeditiously remove or disable access to the allegedly infringing material and take reasonable steps to promptly notify the alleged infringer of the action.</li>\n<li>The alleged infringer then has the right to object to the takedown.</li>\n<li><p>If they do, you have 14 days to bring a lawsuit in the district court alleging breach of copyright:</p>\n\n<ol>\n<li>If you don't then YouTube will restore the material - essentially you have given up your claim that the material infringes your copyright,</li>\n<li>If you do then the court will decide if the material does or does not breach copyright. The alleged infringer can raise a <a href=\"https://en.wikipedia.org/wiki/Fair_use\" rel=\"nofollow noreferrer\">fair use</a> defense if they like and they may or may not be right. If you win, you get damages, if you lose, you pay damages. In practice, you and the alleged infringer may opt for an out of court settlement instead.</li>\n</ol></li>\n</ol>\n", "score": 3 }, { "answer_id": 26221, "body": "<p>Copying of entire articles, as you've described, doesn't fall within the fair use exception. Since you've already sent a DMCA takedown notice and received a counter notification, your next step is to file a copyright infringement lawsuit, or at least have a lawyer send a cease and desist letter threatening as much to the infringer. The counter notification should have included </p>\n\n<blockquote>\n <p>(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.</p>\n</blockquote>\n\n<p>That information tells you which district court to file suit in and the alleged infringer has waived any argument that the court lacks personal jurisdiction over them. 17 U.S.C. 512(g)(3)(D). Further, the statute allows you to seek statutory damages in lieu of actual damages. Statutory damages are set by the court and range between $750 and $30,000 per infringed work with the potential to be increased to up to $150,000 per infringed work when the infringement is found to be willful. 17 U.S.C. 504(c)(1)-(2). You may also be able to recover your costs and attorneys fees, but this is at the discretion of the judge. 17 U.S.C. 505.</p>\n\n<p>There are some circumstances where the hosting site can also be liable for the infringement, but those claims are difficult to win. Ultimately, you should consult an attorney to discuss your claim in more detail. You definitely have not forfeited or waived your claim, nor does the amount of time you've waited so far create an estoppel claim. </p>\n", "score": 1 } ]

[ "copyright" ]

[ { "answer_id": 36324, "body": "<p>It is unlikely that those requirements would be held to be unconstitutional. A fundamental right such as the right to bear arms can only be restricted in specific ways (<a href=\"https://www.law.cornell.edu/wex/strict_scrutiny\" rel=\"nofollow noreferrer\">\"strict scrutiny\"</a>) – compelling government interest (keeping people from getting shot accidentally), being narrowly tailored and the least restrictive. If, for example, the law also required passing an exam on the history of firearms, that would be overly broad. If the registration fee were $2,000, that would be too restrictive. But the law says that</p>\n\n<blockquote>\n <p>The sheriff may charge a new application processing fee in an amount\n not to exceed the actual and reasonable direct cost of processing the\n application or $100, whichever is less. Of this amount, $10 must be\n submitted to the commissioner and deposited into the general fund.</p>\n</blockquote>\n\n<p>The application fee is not just for the actual cost of applying for the permit, it also includes what looks like a $10 revenue source, and that sort of looks like an unnecessary restriction. I expect, though, that the state would argue that this $10 is necessary to defray actual long-haul expenses that could not be recovered given the $100 limit imposed by the law.</p>\n\n<p>The law does not actually require a person to pay for a training course, it just requires a person to take a course (or hold employment as a peace officer in the sate within the year). </p>\n", "score": 4 } ]

[ "constitutional-law", "human-rights", "firearms" ]

[ { "answer_id": 91583, "body": "<h2>Not in the example</h2>\n<p>Alice is a customer of ACME. ACME is the Data Controller. ACME contracts Fastmail as a <em>Data Processor</em>.</p>\n<p>Data Processors are different from Data controllers.</p>\n<h2>Yes in general</h2>\n<p>Let's say Alice is a customer of Amazon Prime and watches Twitch. The accounts are linked. Twitch and Amazon are joint Data Controllers on some data (though one is a subsidiary of the other).</p>\n<p>Now, Alice links her account for a game. Both Amazon/Twitch and the game now are both data controllers on <em>some</em> data (usually: user name on both platforms and some kind of ID are shared), but they don't share <em>all</em> data either has.</p>\n<p>The game and Amazon as well as Twitch are Data Controllers, each with different data amounts and in some cases, jointly administring <em>some</em> data.</p>\n", "score": 1 } ]

[ "gdpr", "data-ownership", "data" ]

[ { "answer_id": 91443, "body": "<p>There is no parallelism between <a href=\"https://fingfx.thomsonreuters.com/gfx/legaldocs/myvmojgodvr/ND%20Texas%20Abortion%20Pill%20Ruling%202023-04-07.pdf\" rel=\"nofollow noreferrer\">the Texas decision</a> and the proposed lawsuit. In the anti-mifepristone lawsuit, there exists a statute granting the FDA authority to regulate and review new drugs, and a <a href=\"https://www.ecfr.gov/current/title-21/chapter-I/subchapter-A/part-10/subpart-B/section-10.30\" rel=\"nofollow noreferrer\">petition procedure</a> whereby citizens can state ground for the Commissioner of Food and Drugs to consider a regulatory action. There is no statutory basis on which a ban of meat-eating could be created by executive action. Congress cannot be sued for not passing a law (failure or refusal of Congress to pass a particular law is not justiciable). If, for example someone were to submit a petition to the FDA urging such a regulation, the petition would have to be denied because the FDA does not have statutory authority to issue such a regulation.</p>\n<p>As argued <a href=\"https://adamunikowsky.substack.com/p/mifepristone-and-the-rule-of-law-9c4\" rel=\"nofollow noreferrer\">here</a>, the anti-mifepristone plaintiffs lack standing in that case, so one can expect that to be a substantial issue in the subsequent appeal.</p>\n", "score": 3 } ]

[ "standing" ]

[ { "answer_id": 91576, "body": "<p>The basic legal principles are as follows. First, a government may pass a law criminalizing an act, for example <a href=\"https://uploads.guim.co.uk/2023/03/01/Motion_Seeking_Leave_of_Parliament_to_Introduce_a_Private_member%27s_Bill_Entitled_%27Anti-Homosexuality_Bill%27_(1).pdf\" rel=\"nofollow noreferrer\">this Ugandan law</a> which penalizes homosexual acts, their attempt, and aiding and abetting same. Second, a government has the subpoena power to compel a party to provide evidence to be used in a criminal prosecution, unless there is some specific restriction enacted in the country – I find no applicable restrictions in Uganda. In principle, the government could subpoena records of an internet service, in order to find violations of the law.</p>\n<p>Enforcement of the subpoena is relatively simple within the country, but enforcement against a website in Norway, for example, would be virtually impossible, in that Ugandan courts do not have authority in Norway and Norwegian courts will not recognize such an order. Uganda is not a party to the <a href=\"https://en.wikipedia.org/wiki/Hague_Service_Convention\" rel=\"nofollow noreferrer\">Hague Service Convention</a>, so the Norwegian courts will simply not consider the subpoena.</p>\n", "score": 4 }, { "answer_id": 91573, "body": "<p>If being homophobic is in the nature of a government, and in the nature of a majority of voters (irrelevant in a dictatorship) then they can change laws according to their prejudices. So they might not be able to subpoena such a dating site successfully today, but they may be able to change laws so that it is possible in the future.</p>\n<p>Note that many western governments had homophobic laws in the past, which means it would possible to them to create homophobic laws again, except at this point in time they wouldn't get support from their voters. In 1950 there were no LGBT dating sites, but if there had been, I'm quite sure there would have been subpoenas.</p>\n", "score": 0 } ]

[ "international", "harassment", "subpoena" ]

[ { "answer_id": 91529, "body": "<p><strong>The picture you posted is of a yellow sign mislabeled as orange.</strong></p>\n<p>While some tints can be distorted depending on computer screens and color settings and individual perceptions may vary, verification of this specific example can be made by the context provided in your link.</p>\n<p>Below you can see the published example of a construction area sign:</p>\n<p><a href=\"https://i.stack.imgur.com/D6LjO.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/D6LjO.png\" alt=\"enter image description here\" /></a></p>\n<p>Several places below that is the one you posted in your question:</p>\n<p><a href=\"https://i.stack.imgur.com/PxbIO.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/PxbIO.png\" alt=\"enter image description here\" /></a></p>\n<p>As you can clearly see the colors are distinctly different, yet the color description is the same. It's apparent that the graphic artist who created this copied their work and changed the color, but forgot to change the text. <em>Trust your eyes!</em></p>\n", "score": 3 } ]

[ "traffic" ]

[ { "answer_id": 25061, "body": "<p>The <a href=\"https://en.m.wikipedia.org/wiki/History_of_trial_by_jury_in_England\" rel=\"noreferrer\">origin of the jury</a> is a complex mix of Saxon, Danish and Norman custom which morphed and melded along with English Common Law, which is the basis of the law in all ex-British colonies including the USA.</p>\n<p>Danish towns in the north and east of England had hereditary “law men”, often 12 in number who decided legal disputes. In parallel the West Saxons (Wessex) in the south and west charged 12 theigns in each area with keeping the peace. When the Normans conquered (who were also of Viking origin) they adopted and adapted the existing legal structures.</p>\n<p>In the 12th century, Henry II established that a jury of 12 should decide land disputes. Meanwhile other juries of various sizes were formed to investigate crimes and bring charges - this is the origin of the Grand Juries that still live on in some jurisdictions in the USA although they have been replaced by a judge in other common law jurisdictions (and some states in the USA).</p>\n<p>Ultimately the jury that brought charges and the jury that decided guilt were split and the size was standardised. However, it is incorrect to say that it is always 12: some jurisdictions have different numbers for different purposes. For example, <a href=\"https://www.law.cornell.edu/rules/frcp/rule_48\" rel=\"noreferrer\">rule 48</a> of the US Federal rules for civil procedure sets the number at not less than 6 and not more than 12.</p>\n<p>The jury system continues to evolve with various jurisdictions adopting different numbers, majority verdicts and judge only trials.</p>\n<p>There is nothing special or “scientific” about 12: it is what it is because it is what it is.</p>\n", "score": 14 }, { "answer_id": 36591, "body": "<p>It isn't 12, for federal trial courts it's at least 6 and no more than 12. <a href=\"https://www.law.cornell.edu/rules/frcp/rule_48\" rel=\"nofollow noreferrer\">https://www.law.cornell.edu/rules/frcp/rule_48</a> For grand juries it's more <a href=\"https://www.uscourts.gov/services-forms/jury-service/types-juries\" rel=\"nofollow noreferrer\">https://www.uscourts.gov/services-forms/jury-service/types-juries</a>. In az it's 6,8, or 12 depending on the matter being considered. <a href=\"https://law.justia.com/codes/arizona/2005/title21/00102.html\" rel=\"nofollow noreferrer\">https://law.justia.com/codes/arizona/2005/title21/00102.html</a>. I can't go through all the states but it's not always 12. </p>\n", "score": 3 } ]

[ "united-states", "jury", "legal-history" ]

[ { "answer_id": 91476, "body": "<p>Some interesting reasoning about standing aside (which antivaxxers etc. will love though, because it stipulates that the FDA refusing to collect <em>all</em> side effects statistics [even starting 16 years later] gives standing to sue on the original approval), the Texas' judge estimation of success on the merits is essentially relying on the finding that &quot;Pregnancy is not an illness&quot; (p. 40) and essentially repeated on p. 44 as &quot;Chemical Abortion Drugs do not provide a Meaningful Therapeutic Benefit&quot;, so that in the Judge's estimation drugs for terminating pregnancy can be held to a [much] higher safety standard than the FDA decided by itself. This ultimately phrased as (p. 57):</p>\n<blockquote>\n<p>The Court does not second-guess FDA's decision-making lightly. But here, FDA\nacquiesced on its legitimate safety concerns in violation of its statutory duty based on plainly unsound reasoning and studies that did not support its conclusions.</p>\n</blockquote>\n<p>It's followed by another finding that there was likely political interference by the Clinton administration with the FDA's decision.</p>\n<p>This a rather partial summary since the order involves several FDA decisions, the details of which which I'm glossing over here (like the fact that the decision to not collect all side effects stats for mifepristone is rather more recent, being taken in 2016--but nonetheless the judge found that consequently the original 2000 decision was reopened as well, and can the object of the suit too.)</p>\n", "score": 4 }, { "answer_id": 91470, "body": "<h2>This is an order for a preliminary injunction</h2>\n<p>It requires the FDA to temporarily suspend its approval of the drug until the case is resolved on its merits; nothing of substance has been decided yet.</p>\n<p>The judgement is well laid out and easy to follow with headings telling us what each part is about. It starts with background facts and the legal issues to be decided are in the first paragraph on page 6. The judgement then goes onto issues of standing (the plaintiffs have standing), if the action is too early or too late (no), if the plaintiffs are likely to succeed on the merits (yes), if there is a substantial risk of harm (yes), if an injunction would serve the public interest (yes), if what the plaintiffs asked for is the appropriate solution (no), therefore the injunction is granted (in part).</p>\n<p>I can’t see anything that indicates bias. I can see a judge that is pissed off that the FDA apparently failed in its statutory duty to respond to complaints in the time the law requires. That was, rightly, held against the FDA in their arguments that the proceedings were time barred - you can’t delay a process by your own inaction and then say “you can’t sue me because you’re too late.”</p>\n", "score": 1 }, { "answer_id": 91570, "body": "<p>Contrary to how much of the media has been been presenting it, the judge was not ruling on the medical safety or effectiveness of the drug. There were 2 main issues that the plaintiffs claimed:</p>\n<ul>\n<li>The FDA did not follow the proper processes when they approved the drug and subsequently relaxed the conditions for dispensing it (increasing the availability from the first 7 weeks of pregnancy to the first 10 weeks).</li>\n<li>They violated the <a href=\"https://en.wikipedia.org/wiki/Comstock_laws\" rel=\"nofollow noreferrer\">Comstock Act</a> when they approved sending abortion pills by mail.</li>\n</ul>\n<p>KFF.org has a summary of this decision, as well as the contrary ruling in Washington state, <a href=\"https://www.kff.org/policy-watch/q-a-implications-of-two-conflicting-federal-court-rulings-on-the-availability-of-medication-abortion-and-the-fdas-authority-to-regulate-drugs/\" rel=\"nofollow noreferrer\">here</a>.</p>\n<p>Yesterday (April 14, 2023), the Texas ruling was put on temporary hold by US Supreme Court Justice Samuel Alito. One of the contentious issues is whether the plaintiffs have standing to make this complaint.</p>\n", "score": 0 } ]

[ "texas", "federal-courts", "abortion" ]

[ { "answer_id": 91554, "body": "<p>An Art 15 Subject Access Request (SAR) “shall not adversely affect the rights and freedoms of others.”</p>\n<p>It would be a grave violation of privacy for an email provider to search its users' account contents. It is therefore likely that the email provider would refuse to fulfil that subject request, unless required to perform a search via a court order. Instead, the SAR could be directed to the account holder (Alice or Dave), if they are subject to the GDPR.</p>\n<p>Depending on the exact legal framework, emails might be protected under confidentiality of communications rules, making such searches similarly illegal to wiretapping. At least in <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged &#39;germany&#39;\" aria-label=\"show questions tagged &#39;germany&#39;\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a>, I am fairly certain that an email provider would be criminally liable if they were to disclose emails from their users' email accounts to a third party.</p>\n", "score": 9 }, { "answer_id": 91566, "body": "<p>I am not a lawyer and I am not aware of such a case being decided in court yet. So this i my interpretation of the law:</p>\n<blockquote>\n<p>Suppose Bob emails Alice, and both use Hotmail for their e-mail provider. Bob then deletes the message from his sent mail folder.</p>\n</blockquote>\n<p>You are assuming the inner workings of Hotmail. The law does not care what is visible in your &quot;sent mail&quot; folder. The law cares about what is in Hotmails databases.</p>\n<blockquote>\n<p>Could Bob issue a subject access request (SAR) to Hotmail for the message</p>\n</blockquote>\n<p>Yes, Bob could. If this email Bob wrote is still saved in Hotmails system in connection to Bobs personal data (in this case their email address in the &quot;from&quot; field clearly identifying it as valid personal data).</p>\n<blockquote>\n<p>(provided it is in fact still) held by Hotmail in Alice's inbox?</p>\n</blockquote>\n<p>Again, you are assuming Hotmails data structure is an exact copy of your user interface. I can guarantee you, it is not. Whether it is visible in Alice's inbox is not relevant here. The only relevant point is whether PII was saved. It was, so an SAR should be able to retrieve it. Even if the email is no longer visible in <em>either</em> persons inbox, if it is still held in Hotmails database, it is subject to an SAR.</p>\n<p>So with the SAR, no data about Alice would be given out. As the sender (or even receiver) of the mail, you already know it's contents, and you will only get to know whether hotmail still holds a copy of it. That says nothing about whether Alice read it, deleted it, printed it out and put it on display. Anything. It doesn't even say if Hotmail ever delivered it to her or if their email address even exists at Hotmail. Privacy of Alice is not breached here.</p>\n<blockquote>\n<p>Or suppose Charlotte emails Dave, who uses a different email provider from him. Could she submit an SAR to Dave’s email provider for the message she sent to him, provided it is held by them?</p>\n</blockquote>\n<p>Yes, she could. Assuming she can prove that the PII (email address in the &quot;from&quot; field) is hers, she should get that email as a reply to the SAR.</p>\n<hr />\n<p>Now, these were the clear cut cases. Where obvious PII in a field to hold that PII was concerned. It does get muddier down the road. What if Alice forwards the mail, and her mail program puts Bob's original sender email in the emails message text like &quot;forwarded from Bob@example.com:&quot;. Is that still PII? It certainly still is Bob's email address that identifies Bob. But it is not in a field that identifies it as an email address to Hotmail. Hotmail is not required to search their customers non-PII fields (so any field that the provider did not ask for PII and is not using for purposes that would make it obvious they expect PII, for example &quot;favorite pizza toping&quot; or &quot;message text&quot;) for accidential PII insertion. A SAR is about what <em>Hotmail</em> knows about you, not what Alice or the person she forwards this information too, knows about you. To Hotmail, this is message text. Could it potentially contain PII? Sure. Literally anything <em>could</em>. Do they know it does? No. That is what counts.</p>\n<p>Lets take an example here. 1673. That is a random number I just typed. By the nature of 4 digit numbers only being available for 10000 unique instances, I can practially guarantee you that this is somebodies credit card PIN. So is it PII? If I enter it into a field where the data holder <em>knows</em> it's a credit card PIN, sure. Right now, in this post? No. Even if someone reads this post and goes &quot;what, wait, how did they know <em>my</em> PIN?!?&quot; It's not PII. It's just a number. Only the accompanying information that this number indeed <em>is</em> somebodies PIN would make it PII.</p>\n<p>A good example of this might be Facebook or other invasive no-privacy corporate entities. If they <em>do</em> parse message texts, and they <em>do</em> have a table that says &quot;this message from Alice contained Bob's email address&quot; then that could be part of an SAR. I guess a judge would have to decide where Alice's rights to privacy end and Bob's start to take priority. My personal guess is that if Alice <em>agreed</em> to have her data spyed on this way by their message service, they would side with Bob, who is not even a party to that contract and had his PII taken and saved without his consent.</p>\n", "score": 1 } ]

[ "gdpr", "data-protection", "data", "subject-access-request" ]

[ { "answer_id": 91555, "body": "<p>It is possible. Your basis for legal action would be the <a href=\"https://ncua.gov/regulation-supervision/manuals-guides/federal-consumer-financial-protection-guide/compliance-management/lending-regulations/homeowners-protection-act-pmi-cancellation-act\" rel=\"nofollow noreferrer\">Homeowner's Protection Act</a>, <a href=\"https://www.law.cornell.edu/uscode/text/12/chapter-49\" rel=\"nofollow noreferrer\">12 USC Ch. 49</a>, which requires removing the PMI requirement in circumstances that relate to the 80% interest threshold. The specific requirements are in <a href=\"https://www.law.cornell.edu/uscode/text/12/4902\" rel=\"nofollow noreferrer\">§4902</a>. One of the triggers is the <a href=\"https://www.law.cornell.edu/uscode/text/12/4901\" rel=\"nofollow noreferrer\">&quot;cancellation date&quot;</a>, which relates to the initial amortization schedule, basically the day when by making regular payments the loan is reduced to 80% of the initial value (not the loan amount). This completely ignores later appraisals, though the bank can require proof that the value of the property has not declined (and that evidence is &quot;of a type established in advance and made known to the mortgagor by the servicer promptly upon receipt of a request under paragraph (1))&quot;). The law excludes inflationary changes in equity, where e.g. one has an initial 5% interest that swells to a 20% interest over a few years because of inflation. Refinancing is always a legal option, but maybe not the ideal financial choice depending on interest rate differences and refinancing costs.</p>\n<p>If this is about Canada, there may be different laws.</p>\n", "score": 4 } ]

[ "real-estate", "insurance" ]

[ { "answer_id": 91552, "body": "<p>I don't think that GDPR applies here.</p>\n<p>There are three actors: Alice, Bob, and the Platform. Bob published Alice's personal data through the Platform. Then, we have to consider who of them would be the data controller for this processing activity. Only the controller would be responsible under GDPR for compliance and for handling data subject requests.</p>\n<p>I will take it as a given that the scenario involves the processing of Alice's personal data.</p>\n<p>I also want to highlight the detail that neither Alice nor Bob are in a country where GDPR applies.</p>\n<p>Clearly, the Platform is the data controller for most aspects of their service. However:</p>\n<ul>\n<li>Controller is whoever determines the purposes and means of processing (Art 4(7)).</li>\n<li>The GDPR does not apply to processing by a natural person in the course of a purely personal or household activity (Art 2(2)(c)), which includes “social networking and online activity undertaken within the context of such activities” (Recital 18).</li>\n<li>The GDPR would only apply to processing activities that occur in the context of an European establishment of the controller, or when those activities are related to the offering of goods or services to people who are in Europe.</li>\n</ul>\n<p>This leads me to the following conclusions:</p>\n<h3>Only Bob is the data controller for message contents.</h3>\n<p>When Bob posts a message, the Platform does not exert control over the message contents. The Platform is controller for how they process Bob's and Alice's messages, but it does not control the purposes and means for processing conducted via such messages.</p>\n<p>Bob used the Platform for the processing activity of publishing Alice's personal data, and is the controller of that activity.</p>\n<h3>Alice cannot rely on GDPR against Bob due to issues of territorial scope.</h3>\n<p>In a nutshell, Art 3 GDPR says that GDPR can only apply if one end of the subject–controller relationship is in Europe. Since the Platform is EU-based, both Alice and Bob are protected by GDPR with respect to the platform's processing activity.</p>\n<p>However, this is irrelevant when considering the Alice–Bob relationship. Bob does not have an European establishment, so is not subject to GDPR per Art 3(1). Bob does not offer goods or services to people who are in Europe, so is not subject to GDPR per Art 3(2).</p>\n<p>Even if Bob were to offer goods or service to people in Europe, Alice wouldn't be covered by GDPR because Bob's processing of Alice's data wouldn't be “related” to such offering, unless perhaps this Platform is some kind of marketplace.</p>\n<h3>Bob might have to comply if he was EU-based.</h3>\n<p>If Bob was EU-based, things would be more interesting. Now, Bob would clearly be in the GDPR's Art 3 territorial scope, but we must also consider the Art 2 material scope.</p>\n<p>If Bob is an individual and not a company, Bob might invoke the household exception that exempts normal social media use. However, taking into account CJEU case law from <em>Rynes</em> and <em>Lindqvist</em>, making the data public is unlikely to fall under this narrow exemption.</p>\n<p>So in this alternative scenario, Bob might be in scope of the GDPR as a data controller, and would then have to comply with its requirements.</p>\n<h3>Even if GDPR were to apply, deletion may not be required.</h3>\n<p>“Only a Sith deals in absolutes”, and the GDPR is very much not a Sith. It is based around foundational principles in Art 5, and these must be carefully balanced with other rights.</p>\n<p>Bob might have an Art 6(1)(f) <em>legitimate interest</em> in publishing a “name and shame” post. This would depend on the specific context, though.</p>\n<p>Bob might be covered by an Art 85 GDPR exception for <em>freedom of expression and information</em>, in particular if the data was published for journalistic purposes. However, such exemptions must be provided by member states.</p>\n<p>Bob might not have to fulfil an Art 17 erasure request if none of the deletion criteria are met, in particular if Bob's legitimate interest in publication would override Alice's objection, or if publication is necessary for exercising the right of freedom of expression and information.</p>\n<p>These carve-outs for freedom of expression are important, e.g. to prevent a public figure from abusing GDPR to silence public criticism.</p>\n<h3>The Platform <em>might</em> have an obligation to provide safety features.</h3>\n<p>As discussed above, I don't think that the Platform is a controller regarding Bob's publication.</p>\n<p>However, data controllers have general obligations to ensure the compliance and security of their own processing, which requires the adoption of appropriate technical and organizational measures. In particular, the Platform must ensure data protection by design and by default (Art 25).</p>\n<p>Perhaps this could be interpreted to require safety features on the Platform, such as content visibility settings and moderation flags. However, it is not reasonable to interpret this in a way that would force the Platform to censor or delete otherwise-legal content.</p>\n<h3>GDPR is the wrong mechanism here.</h3>\n<p>GDPR is a fairly high-profile law, and is sometimes used in ways that it wasn't designed for. For example, the right to access is sometimes used as a kind of Freedom of Information device, and misunderstandings about the GDPR's territorial scope often see international data controllers being wrongly threatened with it.</p>\n<p>This scenario is different in that it could be legitimately viewed as a data protection issue between Alice and Bob, if that relationship were subject to GDPR.</p>\n<p>But it is not appropriate to use the GDPR against the Platform here, since the Platform is not the data controller for the processing activity in question. Instead, Alice would have to find some other reason why the Platform would be liable in some way. For example, if Bob's message were to constitute some kind of illegal doxxing, and Swedish rules were to hold platforms liable when they are informed of illegal user content, then Alice would likely be able to get Bob's content taken down.</p>\n<p>Alice could also consider whether some other rights were violated by Bob's message. For example, if Bob's message was defamatory, violated personality rights, or breached some duty to confidentiality of communications, then Alice might be able to get Bob to take the content down. But this would depend primarily on the laws in Bob's location.</p>\n<p>Someone mentioned the issue of copyright. Mere data such as a name is not covered by copyright. However, if Bob published material written by Alice, and this publication is not covered by a copyright exception, then it might be possible to get Bob's post taken down. There is a small hiccup here that Alice might have already given the Platform the necessary rights to publish her writing via the Platform terms of service.</p>\n", "score": 2 }, { "answer_id": 91539, "body": "<p>Edited. As the question was initially asked, I assumed that Bob had simply re-posted the message from Alice with personal details. Since that is not the case, the copyright to the original message does not help here.</p>\n<p>What is left is a case of <a href=\"https://en.wikipedia.org/wiki/Doxing\" rel=\"nofollow noreferrer\">doxing</a>, and it should be irrelevant <em>where</em> Bob got Alice's contact details and that Alice is also a user of the platform.</p>\n<p>To comply with GDPR in a structured way, the platform will have documented what data they store, and why, and how they process and handle it. For instance, they might have IPs in their access logs, and keep those just for a day for technical troubleshooting. Afterwards, there is no more reason to have them, so there is every reason to delete them. Billing information might be kept a certain number of years, <em>even if the data subject makes a deletion request</em>, to comply with tax regulations. Account information is kept until the account is deleted, and so on.</p>\n<p>In this documentation, the content of a message by some user (i.e. Bob) would be <strong>associated with that user's account</strong>, even if it is about a different person who may or may not be a user of the platform (i.e. Alice). The platform did stop there, not even trying to make a judgement if the content did disclose Alice's personal data. I'm not quite convinced by the suggestion by <a href=\"https://law.stackexchange.com/questions/91532/publishing-personal-data-obtained-on-a-swedish-server-gdpr-implications/91552#91552\">amon</a> that Bob is the data controller and the platform is merely the data processor regarding this content, but the (usually reasonable) classification of the data keeps it out of scope for Alice's requests.</p>\n<p>Various countries have anti-doxing laws, usually criminal laws to prevent harassment and intimidation.</p>\n", "score": 0 } ]

[ "gdpr", "personal-information", "sweden" ]

[ { "answer_id": 91469, "body": "<h2>Purchase by tender is optional</h2>\n<p>Businesses can and do by from each other on many basis - they may pay a list price, they may place an order without knowing the price, they may ask for quotations (from one or many suppliers), they may negotiate a price, they may hold an auction, they may hold a formal tender process.</p>\n<p>There is no law that says which they may use in what circumstances. If they want to have a formal tender for the supply on 1 paperclip, they can. If they want to order 78 A380 Airbuses without agreeing an upfront price, they can.</p>\n", "score": 1 } ]

[ "legal-tender" ]

[ { "answer_id": 91550, "body": "<p>I don't know of any cases where a court <em>has</em> done this, but the law would permit it in an appropriate circumstance.</p>\n<p>Under <a href=\"https://casetext.com/statute/united-states-code/title-28-appendix/federal-rules-of-civil-procedure/rules-of-civil-procedure-for-the-united-states-district-courts/rule-54-judgment-costs\" rel=\"noreferrer\">Fed. R. Civ. P. 54(c)</a> federal courts in the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a> may grant relief beyond what the complaint demands:</p>\n<blockquote>\n<p>Final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.</p>\n</blockquote>\n<p>The same is true in <a href=\"/questions/tagged/new-york\" class=\"post-tag\" title=\"show questions tagged &#39;new-york&#39;\" aria-label=\"show questions tagged &#39;new-york&#39;\" rel=\"tag\" aria-labelledby=\"tag-new-york-tooltip-container\">new-york</a> under <a href=\"https://casetext.com/statute/consolidated-laws-of-new-york/chapter-civil-practice-law-and-rules/article-30-remedies-and-pleading/section-3017-demand-for-relief\" rel=\"noreferrer\">N.Y. C.P.L.R. Law § 3017</a>:</p>\n<blockquote>\n<p>The court may grant any type of relief within its jurisdiction appropriate to the proof <em>whether or not demanded</em>.</p>\n</blockquote>\n", "score": 14 }, { "answer_id": 91561, "body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>Yes, it is possible for the jury to award more than is asked for, whether it was one dollar or another value.</p>\n<p>In fact, in <a href=\"https://en.wikipedia.org/wiki/Bollea_v._Gawker\" rel=\"noreferrer\">Bollea v. Gawker</a>, the plaintiff asked for $100 million. The jury awarded $115 million in compensatory damages and $25 million in punitive damages.</p>\n<p>(I will note that there was a lot of discussion that this showed the jury was uncommonly disgusted with Gawker.)</p>\n", "score": 12 }, { "answer_id": 91551, "body": "<p>In <a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged &#39;france&#39;\" aria-label=\"show questions tagged &#39;france&#39;\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a>, the court is bound by the parties’ claims. See <a href=\"https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006070716/LEGISCTA000006149635/#LEGISCTA000006149635\" rel=\"noreferrer\">articles 4 and 5 du code de procédure civile</a>:</p>\n<blockquote>\n<p>L'objet du litige est déterminé par les prétentions respectives des parties. (...)\nLe juge doit se prononcer sur tout ce qui est demandé et seulement sur ce qui est demandé.</p>\n</blockquote>\n<blockquote>\n<p>The dispute is determined by the claims of all parties. (...)\nThe judge must rule on all which is asked, and only that which is asked.</p>\n</blockquote>\n<p>Say I borrow your car, I return it with a broken window, and we end up at trial.</p>\n<p>You claim that (1) you had to pay a mechanic €500 to fix the window and (2) you underwent significant emotional distress when seeing the broken window, worth €1 million. I claim that the window was already damaged when I borrowed the car, so I should not be held liable for anything; furthermore, in any case, the window could have been fixed for €100, and you did not have any significant emotional damage worth paying for.</p>\n<p>The judge must rule within the bounds of your claims (1) and (2) (in that example I have not put forward any counterclaim). All the following would be grounds for a successful appeal:</p>\n<ul>\n<li>the judge rules I owe you €250 for the broken window, and does not say anything about emotional distress. Or alternatively, that €1m for emotional damages is absolutely ridiculous and dismisses the case without saying anything about the repair cost. That would be <em>infra petita</em> (ruling on less than what was asked); each claim must be addressed separately (if only to say, &quot;and because of the same reasoning, claims 2, 7 and 11 also fail&quot;).</li>\n<li>the judge rules I owe you €1000 for the broken window, and nothing for emotional distress. That would be <em>ultra petita</em>: they cannot give you more than what you asked for each item (even if the combined result is within the claim).</li>\n<li>the judge rules I owe you €300 for the broken window, nothing for emotional distress, and €200 in lost wages for the day you missed work due to having to fix the car. That would be <em>extra petita</em>: they cannot rule on anything that was not raised specifically by the parties (again, even if it fits within the &quot;global envelope&quot; of the claims).</li>\n</ul>\n<p>I have never seen a general claim &quot;for any relief that would be just and proper&quot; (or similar). I suspect such a claim would be dismissed, but could not quickly find any case law on the subject. I would say it violates a combination of article 4 and <a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006410099/2017-09-01\" rel=\"noreferrer\">article 6</a> - you must make specific claims and bring proof to establish each claim.</p>\n", "score": 11 }, { "answer_id": 91545, "body": "<p>Typically, a Prayer for Relief (the part of the lawsuit documents that includes the listed Relief) will request &quot;Any other damages as the court sees fit&quot; which allows for this. To my knowledge, it's not usually given beyond the damages sought, but does give the judge the ability to add on damages not directly sought.</p>\n", "score": 4 } ]

[ "civil-law", "any-jurisdiction", "civil-judgment", "civil-damages", "nominal-damages" ]

[ { "answer_id": 91557, "body": "<p>If it is not actually in the contract, it cannot be considered to be a breach of contract.</p>\n<p>There are two kind of private schools: approved, and non-approved. An approved private school is subject, in Washington State, to <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=28A.195&amp;full=true\" rel=\"nofollow noreferrer\">Chapter RCW 28a.195</a>. The state board of education can take action against an approved private school which does not conform to the applicable regulations. This does not create a private cause of action, so you cannot sue the school for violating the regulation, instead you <a href=\"https://app.leg.wa.gov/wac/default.aspx?cite=180-90-170\" rel=\"nofollow noreferrer\">complain to the BoE</a>, who may take action, and if the issue is not corrected, the approval may be withdrawn. The advantage of being an approved school is that this satisfies the <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=28a.225&amp;full=true\" rel=\"nofollow noreferrer\">compulsory education statute</a>, unlike your local Sunday school, nursery school, or any other kind of things calling itself a school. This does not preclude the possibility that a contract with a private school will include some clause to the effect that the school promises to comply with BoE regulations. <a href=\"https://defendinged.org/resources/private-school-rights/\" rel=\"nofollow noreferrer\">This page</a> provides a collection of possibly real enrollment contracts – my cursory reading did not locate any promise to adhere to state regulations</p>\n<p>There is a separate question herein, that it may be <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9.04\" rel=\"nofollow noreferrer\">deceptive advertising</a> to imply that you are an approved school when you are not approved.</p>\n", "score": 5 }, { "answer_id": 91558, "body": "<h2>No</h2>\n<p>Unless the breach of the law is <em>also</em> a breach of contract. This is the general position under contract law and is not specific to private schools.</p>\n<p>So, for example, if the school does not pay the taxes it is required to pay then, unless and until it causes them to fail to perform their obligations under the contract, it is not a breach. It is also not a breach of contract if their actions cause you to be in breach of the law, although, here you may have remedies outside contract law.</p>\n<p>Of course, a contract can make compliance with the law a contractural obligation and such clauses are common in B2B and G2B contracts. For <a href=\"https://www.finance.gov.au/government/procurement/clausebank/compliance-laws\" rel=\"nofollow noreferrer\">example</a>.</p>\n", "score": 2 } ]

[ "school-law" ]

[ { "answer_id": 70191, "body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<blockquote>\n<p><em>&quot;I know is it illegal for authorities to question a suspect when their lawyer isn’t present&quot;</em></p>\n</blockquote>\n<p>This is not really true, at least in the US. The suspect must explicitly ask for a lawyer. Even saying &quot;Maybe I should talk to a lawyer&quot; (ie <a href=\"https://supreme.justia.com/cases/federal/us/512/452/\" rel=\"nofollow noreferrer\">Davis v. U.S. (512 U.S. 453 (1994)</a>) isn't enough, they have to say &quot;I want a lawyer&quot;. Until they invoke the right, an officer can question all they want (provided they were informed of these rights, except for certain situations which are relatively complicated. See <a href=\"https://en.wikipedia.org/wiki/Miranda_warning\" rel=\"nofollow noreferrer\">Miranda Rights</a>).</p>\n<p>So no, an officer questioning you without a lawyer is neither a crime nor illegal. Once you invoke your Miranda right though, they have to respect that.</p>\n<p>With or without your lawyer, this is called interrogation. You can filter your responses through a lawyer, or waive your right to a lawyer and answer directly.</p>\n", "score": 10 }, { "answer_id": 70196, "body": "<h1><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged &#39;england-and-wales&#39;\" rel=\"tag\">england-and-wales</a></h1>\n<p><strong>I know it is illegal for authorities to question a suspect when their lawyer isn’t present.</strong></p>\n<p>This is not really true, at least in England and Wales.</p>\n<p>The right to free and independent legal advice (FILA) is defined by <a href=\"https://www.legislation.gov.uk/ukpga/1984/60/section/58?timeline=false\" rel=\"nofollow noreferrer\">s.58 of the Police and Criminal Evidence Act 1984</a> (PACE), but it is not an absolute right. It may be <em>delayed</em> - but not totally denied - under certain circumstances such as when a senior police officer reasonable believes that a consultation with a solicitor may, inadvertently or otherwise, lead to interfering with evidence, causing harm to others, tipping off other not yet arrested suspects, or hindering the recovery of property.</p>\n<p>Similar criteria also apply when an &quot;urgent interview&quot; is necessary to secure time-critical evidence.</p>\n<p>Any prosection evidence obtained unfairly by significant or substantial breaches of PACE may be excluded following a defence application under <a href=\"https://www.legislation.gov.uk/ukpga/1984/60/section/78?timeline=false\" rel=\"nofollow noreferrer\">s.78 of PACE</a>.</p>\n<p>One example of when access to a solicitor was unfairly denied is the investigation in to the <a href=\"https://en.m.wikipedia.org/wiki/Murder_of_Sian_O%27Callaghan\" rel=\"nofollow noreferrer\">murder of Sian Callaghan</a>. In essence, the officer concerned did not have an &quot;urgent&quot; need to conduct an interview.</p>\n<p><strong>If it is a crime, what is it called?</strong></p>\n<p>Unfair denial to FILA is called a &quot;<em>Breach of PACE</em>&quot; which is not a crime in-and-of-itself although there is the possibility of, for example, <a href=\"https://www.cps.gov.uk/legal-guidance/public-justice-offences-incorporating-charging-standard\" rel=\"nofollow noreferrer\">perverting the course of justice</a> or <a href=\"https://www.cps.gov.uk/legal-guidance/misconduct-public-office\" rel=\"nofollow noreferrer\">misconduct in a public office</a> offences.</p>\n", "score": 4 }, { "answer_id": 70199, "body": "<p>In the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a>, at least, there isn't a special term to capture this.</p>\n<p>If the suspect has requested a lawyer, but the police continue questioning, you could call that a &quot;<em>Miranda</em> violation,&quot; but tthat phrase could also refer to several other actions, such as failing to notify the suspect of his <em>Miranda</em> rights, or questioning him when he has not asked for a lawyer, but has invoked his right to remain silent.</p>\n", "score": 2 }, { "answer_id": 70229, "body": "<p>In the United States, if someone who has requested a lawyer is questioned by police despite their desire not to do so, in violation of their <em>Miranda</em> rights under the 6th Amendment, this is a &quot;civil rights violation&quot;.</p>\n<p>There are several remedies for this civil rights violation.</p>\n<p>It can trigger the exclusionary rule to exclude any statement obtained in that fashion from being used at trial against the person questioned. This happens routinely.</p>\n<p>It can be a basis for a lawsuit against the interrogating officer for money damages for violating a well established constitutional right. This would be in the form of a 1983 action if the official is a state or local officer, and in the form of a common law <em>Bivens</em> action is the official is a federal official. This would be quite rare.</p>\n<p>It could, in theory, also be the basis for a federal criminal prosecution of the interrogating officer for intentionally violating civil rights, although this would be almost unheard of unless the practice was pervasive.</p>\n<p>A civil rights violation such as this would also provide a valid basis for disciplining or even firing the law enforcement officers for good cause. This also almost never happens.</p>\n", "score": 2 } ]

[ "criminal-law", "police", "legal-terms", "law-enforcement" ]

[ { "answer_id": 19507, "body": "<p>You have raised two broad questions. The question about reasonable suspicion asks: <strong>when is evidence illegally obtained?</strong> That's difficult to answer, because it depends on the nature of the evidence and any statute which controlled the way in which it should have been collected. However, the focus of your question seems to be the second issue: <strong>what use can the government make of illegally obtained evidence?</strong> This is the subject of the exclusionary rule. The short answer is this:</p>\n<blockquote>\n<p>The exclusionary rule is a judicial remedy created for the purpose of deterring future unlawful conduct. The rule prohibits both direct and indirect use of illegally obtained evidence (&quot;fruit of the poisonous tree&quot;) in a criminal prosecution, but will only be applied where its deterrence benefits outweigh its substantial social costs.</p>\n</blockquote>\n<p>To give more insight into how the courts have applied this balancing test, I will summarise its history and rationale. I will then set out the modern formulation of the rule, and try to answer some of your specific hypothetical questions.</p>\n<h2>History and rationale of the exclusionary rule</h2>\n<p>The exclusionary rule originated in <a href=\"https://supreme.justia.com/cases/federal/us/232/383\" rel=\"nofollow noreferrer\"><em><strong>Weeks v. United States</strong></em></a>, 232 U.S. 383 (1914). The government searched Weeks' house without a warrant, seized letters and other property, and charged him with operating an illegal lottery. Weeks applied for the return of the property, but the district court held that &quot;the letters having come into the control of the court, it would not inquire into the manner in which they were obtained, but if competent would keep them and permit their use in evidence.&quot; Weeks was convicted. The Supreme Court reversed, holding that:</p>\n<blockquote>\n<p>If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution ... <strong>The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures</strong> and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, <strong>should find no sanction in the judgments of the courts</strong> which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.</p>\n</blockquote>\n<p>In <a href=\"https://supreme.justia.com/cases/federal/us/251/385\" rel=\"nofollow noreferrer\"><em><strong>Silverthorne Lumber Co. v. United States</strong></em></a>, 251 U.S. 385 (1920), the doctrine was extended to prevent <strong>indirect use</strong> of information derived from illegally obtained evidence, unless the information comes from an independent source. The government illegally searched Silverthorne's offices, and copied the records seized before the district court ordered their return. The district court also impounded the copies, so the government issued a regular subpoena to produce the original documents. The district court held Silverthorne in contempt for failure to comply with the subpoena. The Supreme Court reversed, holding that:</p>\n<blockquote>\n<p>The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely <strong>evidence so acquired shall not be used before the Court but that it shall not be used at all</strong>. Of course this does not mean that the facts thus obtained become sacred and inaccessible. <strong>If knowledge of them is gained from an independent source they may be proved like any others</strong>, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.</p>\n</blockquote>\n<p>The Court acknowledged the 'complexities' of this distinction in <a href=\"https://supreme.justia.com/cases/federal/us/308/338\" rel=\"nofollow noreferrer\"><em><strong>Nardone v. United States</strong></em></a>, 308 U.S. 338 (1939). This case introduced the term 'fruit of the poisonous tree,' and an exception to the doctrine where the connection between the illegality and the evidence presented is 'so attenuated as to dissipate the taint.' Nardone had been convicted of defrauding the revenue twice. The first conviction was based on evidence obtained from an illegal wiretap, and was reversed by the Supreme Court. Nardone was convicted again after a retrial, and argued that the conviction should be set aside because he was not permitted to &quot;examine the prosecution as to the uses to which it had put the [illegally obtained] information.&quot; Frankfurter J, delivering the opinion of the Court, quoted the above passage from <em>Silverthorne</em> and said:</p>\n<blockquote>\n<p>In practice this generalized statement may conceal concrete complexities. Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, <strong>such connection may have become so attenuated as to dissipate the taint</strong> ... The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed. Once that is established—as was plainly done here—the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a <strong>fruit of the poisonous tree</strong>. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin.</p>\n</blockquote>\n<h2>Development of modern limits to the exclusionary rule</h2>\n<p>The Court clarified the purpose of the doctrine in <a href=\"https://supreme.justia.com/cases/federal/us/414/338\" rel=\"nofollow noreferrer\"><em><strong>United States v. Calandra</strong></em></a>, 414 U. S. 338 (1974), declining to extend it to grand jury proceedings. The Court held that Calandra was required to answer questions put to him by a grand jury, even though the questions had been informed by the fruits of an illegal search. The Court said:</p>\n<blockquote>\n<p>The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim ... Instead, <strong>the rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures</strong> ... In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal\nconstitutional right of the party aggrieved.</p>\n</blockquote>\n<blockquote>\n<p>Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons ... the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.</p>\n</blockquote>\n<p>The Supreme Court endorsed a <strong>good faith exception</strong> to the exclusionary rule in <a href=\"https://supreme.justia.com/cases/federal/us/468/897\" rel=\"nofollow noreferrer\"><em><strong>United States v. Leon</strong></em></a>, 468 U.S. 897 (1984). Drugs were found in a search of Leon's house and car pursuant to a facially valid search warrant, but on review the district court found that there was no probable cause to issue the warrant. Therefore, the search was illegal although the officers executing it had acted in good faith. After reviewing the cases in which the Court had declined to apply the rule, the Court held that the evidence against Leon should not have been excluded:</p>\n<blockquote>\n<p>The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern ... We have now reexamined the purposes of the exclusionary rule and the propriety of its application in cases where officers have relied on a subsequently invalidated search warrant. Our conclusion is that the rule's purposes will only rarely be served by applying it in such circumstances. In the absence of an allegation that the magistrate abandoned his detached and neutral role, <strong>suppression is appropriate only if the officers were dishonest or reckless in\npreparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause</strong>.</p>\n</blockquote>\n<p>In <a href=\"https://supreme.justia.com/cases/federal/us/524/357\" rel=\"nofollow noreferrer\"><em><strong>Pennsylvania Bd. of Probation and Parole v. Scott</strong></em></a>, 524 U.S. 357 (1998), the Court cited <em>Leon</em> and explicitly endorsed the use of a balancing test in declining to extend the rule to State parole proceedings:</p>\n<blockquote>\n<p>[B]ecause the rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its <strong>deterrence benefits outweigh its\n&quot;substantial social costs&quot;</strong> ...</p>\n</blockquote>\n<blockquote>\n<p>A federal requirement that parole boards apply the exclusionary rule ... would severely disrupt the traditionally informal, administrative process of parole\nrevocation. The marginal deterrence of unreasonable searches and seizures is insufficient to justify such an intrusion. We therefore hold that parole boards are not required by federal law to exclude evidence obtained in violation of\nthe Fourth Amendment.</p>\n</blockquote>\n<p>The Court endorsed an even more circumspect approach to the rule in <a href=\"https://supreme.justia.com/cases/federal/us/579/14-1373/\" rel=\"nofollow noreferrer\"><em><strong>Hudson v. Michigan</strong></em></a>, 547 U.S. 586 (2006). The police executed a valid search warrant and found guns and drugs in Hudson's house, but the search was unlawful because the police did not knock and announce before entering. The Court declined to exclude the evidence obtained in the search, holding that:</p>\n<blockquote>\n<p><strong>Suppression of evidence, however, has always been our last resort, not our first impulse.</strong> The exclusionary rule generates &quot;substantial social costs&quot;, which sometimes include setting the guilty free and the dangerous at large. We have therefore been &quot;cautio[us] against expanding&quot; it, and &quot;have repeatedly emphasized\nthat the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.&quot; We have rejected\n&quot;[i]ndiscriminate application&quot; of the rule, and have held it to be applicable only &quot;where its remedial objectives are thought most efficaciously served,&quot;—that is, &quot;where its deterrence benefits outweigh its 'substantial social costs.'&quot; (citations omitted)</p>\n</blockquote>\n<h2>Current state of the law</h2>\n<p>As of June 2017, the last word on the rule is the Supreme Court's decision in <a href=\"https://supreme.justia.com/cases/federal/us/579/14-1373/\" rel=\"nofollow noreferrer\"><em><strong>Utah v. Strieff</strong></em></a>, 579 U.S. 232 (2016). Again, the Court reversed a State court's decision to suppress unlawfully obtained evidence in a criminal trial. The Court identified three exceptions to the exclusionary rule:</p>\n<blockquote>\n<p>First, the <strong>independent source doctrine</strong> allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. Second, the <strong>inevitable discovery doctrine</strong> allows for the admission of evidence that would have been discovered even without the unconstitutional source. Third, and at issue here, is the <strong>attenuation doctrine</strong>: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that &quot;the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.&quot; (citations omitted)</p>\n</blockquote>\n<p>Strieff was illegally stopped and asked for ID after leaving a house under surveillance by narcotics police. After discovering an outstanding arrest warrant for a traffic violation, the police lawfully arrested and searched Strieff and found him in possession of methamphetamine. The Court found that the exclusionary rule did not apply because of the attenuation doctrine:</p>\n<blockquote>\n<p>The three factors articulated in <a href=\"https://supreme.justia.com/cases/federal/us/422/590\" rel=\"nofollow noreferrer\"><em><strong>Brown v. Illinois</strong></em></a>, 422 U.S. 590 (1975), guide our analysis. First, we look to the &quot;<strong>temporal proximity</strong>&quot; between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Second, we consider &quot;<strong>the presence of intervening circumstances</strong>.&quot; Third, and &quot;particularly&quot; significant, we examine &quot;<strong>the purpose and flagrancy of the official misconduct</strong>.&quot; (citations omitted)</p>\n</blockquote>\n<blockquote>\n<p>[W]e hold that the evidence discovered on Strieff's person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff's arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff's arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell's illegal stop reflected flagrantly unlawful police misconduct.</p>\n</blockquote>\n<h2>Specific scenarios</h2>\n<ul>\n<li><strong>Can the past arrests serve as a basis for reasonable suspicion to stop a person?</strong></li>\n<li><strong>As a basis for inclusion of the person on an informal watch list?</strong></li>\n</ul>\n<p>As mentioned in the introduction, this question is not really about &quot;fruit of the poisonous tree.&quot; It is an anterior question about whether or not a police stop was unlawful. The court asks: would the facts available to the officer at the moment of the search warrant a man of reasonable caution in the\nbelief that the action taken was appropriate? <a href=\"https://supreme.justia.com/cases/federal/us/392/1\" rel=\"nofollow noreferrer\"><em><strong>Terry v. Ohio</strong></em></a>, 392 U.S. 1 (1968). Officers are permitted to consider criminal history, as the Fourth Circuit held in <a href=\"http://caselaw.findlaw.com/us-4th-circuit/1200285.html\" rel=\"nofollow noreferrer\"><em><strong>United States v. Sprinkle</strong></em></a>, 106 F.3d 613 (1997):</p>\n<blockquote>\n<p>A prior criminal record &quot;is not, alone, sufficient to create reasonable suspicion.&quot; Nevertheless, an officer can couple knowledge of prior criminal involvement with more concrete factors in reaching a reasonable suspicion of current criminal activity. (citations omitted)</p>\n</blockquote>\n<ul>\n<li><strong>As probable cause for a future search warrant or arrest warrant or wiretap?</strong></li>\n<li><strong>As basis for active surveillance without a stop or arrest or search warrant?</strong></li>\n<li><strong>What if law enforcement set up a sting operation targeted at this individual?</strong></li>\n</ul>\n<p>As with reasonable suspicion, evidence of the suspect's reputation and criminal history can be taken into account in establishing probable cause for an arrest or search warrant. However, a history of past arrests would probably not suffice in itself to &quot;warrant a man of reasonable caution in the belief that an offense has been or is being committed&quot;: <a href=\"https://supreme.justia.com/cases/federal/us/338/160\" rel=\"nofollow noreferrer\"><em><strong>Brinegar v. United States</strong></em></a>, 338 U.S. 160 (1949).</p>\n<ul>\n<li><strong>Could the suppressed evidence be used to counter an entrapment defense (which requires a showing that the defendant didn't have a propensity to commit the crime)?</strong></li>\n<li><strong>Could the suppressed evidence be used to impeach testimony in a criminal case that the defendant had never used drugs before?</strong></li>\n</ul>\n<p>If the evidence is <em>suppressed</em> then by definition it cannot be used adversely to the defendant. However, if the evidence is shown to have been obtained illegally, it will only be excluded where the deterrence benefits of exclusion outweigh its substantial social costs: <em>Pennsylvania Bd. of Probation and Parole v. Scott</em>. The evidence is more likely to be admitted if it falls into one of the three exceptions set out in <em>Utah v. Strieff</em>: independent source, inevitable discovery or attenuation. In considering attenuation, the court will pay particular attention to 'the purpose and flagrancy of the official misconduct.'</p>\n<p>Clearly, it is impossible to say, in general, whether unlawfully obtained evidence could be admitted to counter an entrapment defence or attack the defendant's character and credibility. Not only will the application of the exclusionary rule depend on a wide range of considerations, other rules of evidence may need to be applied (such as the rules against character evidence and extrinsic evidence on a collateral matter). Nevertheless, the cases cited above should give some insight into how the court will approach the fruit of the poisonous tree doctrine.</p>\n", "score": 24 } ]

[ "united-states", "criminal-law", "fourth-amendment" ]

[ { "answer_id": 91468, "body": "<h2>There must be a course of justice on hand that can be <a href=\"https://en.wikipedia.org/wiki/Perverting_the_course_of_justice\" rel=\"nofollow noreferrer\">perverted</a></h2>\n<p>It has been held that until: police start an investigation, prosecutors lay charges, or a plaintiff serves a claim on a defendant, there is no “course of justice” so no ability for it to be perverted. The threat of a lawsuit is <em>not</em> a lawsuit. So, for your example, whatever John does is not perverting the course of justice until he is advised that his employer <em>has</em> started civil action.</p>\n<p>Let’s assume that the dates John worked at his previous place are material and relevant to the case. All John has to do is ask his ex-employer to confirm those dates and, if the ex won’t cooperate, subpoena them - that is, have the court issue an order requiring the ex to produce the evidence.</p>\n<p>Similarly, if John needs to prove that his previous employer thought “you were always a great employee”; perhaps he had claimed us much in an interview to get his current job, he would just need to have the ex testify to that.</p>\n<p>It’s only if John suborns false evidence in the course of a legal proceeding that we are getting anywhere near perverting the course of justice.</p>\n", "score": 1 }, { "answer_id": 91461, "body": "<p>Would the reference be genuine and truthful? Using any false document in legal proceedings or to get or keep employment can lead to legal consequences.</p>\n<p>Using false documents or lying to get a job (exam results, qualifications, fake employment history, etc) is fraud, and can lead to criminal charges.</p>\n<p>If the reference is false or misleading in some way, for example the person never worked for the previous 'employer', or if they did but false dates are given, or the reference is untrue about the worker's conduct (perhaps if it says they were a good employee and they were fired for poor conduct or performance) then the previous employer and employee could face charges of perverting the course of justice <strong>if</strong> the documents are later submitted or used in a civil or criminal court case, or in a case before an Employment Tribunal.</p>\n<p>An employer in Scotland fired a female employee after she made accusations of sexual harassment. She had no written contract of employment. When she took him to an Employment Tribunal, he created a false contract of employment, and a false warning letter. When the deception was proved, he was prosecuted for perverting the course of justice, and sentenced to 4 months in prison.</p>\n<p><a href=\"http://news.bbc.co.uk/1/hi/scotland/tayside_and_central/8359390.stm\" rel=\"nofollow noreferrer\">Boss jailed for lying to tribunal (BBC News)</a></p>\n<p>Because of issues around the risk of even minor legal complications, most employers are very wary of supplying very much in the way of references, and will only confirm start and finish dates from their records.</p>\n<p>If the 'reference' the person obtained is truthful, there would be no legal penalty for obtaining it. If the person is trying to get the former employer to cook up a false or misleading document, then both could face criminal charges.</p>\n", "score": 0 }, { "answer_id": 91542, "body": "<p>It seems you are confusing &quot;breaking the law&quot; and &quot;perverting the course of justice&quot;. Lying to get yourself an illegal advantage is usually fraud; fraud is &quot;breaking the law&quot; but not &quot;perverting the course of justice&quot;.</p>\n<p>&quot;Perverting the course of justice&quot; is doing things in court that are designed to make the court make the wrong decision. Let's say you are in court for robbery, and you did indeed commit it. &quot;Justice&quot; would be declaring you guilty if you committed the robbery, and &quot;not guilty&quot; if you didn't. Now if you pay someone to give you a false alibi, with the intent that instead of justice = guilty the court declares you &quot;not guilty&quot; which is not justice, that is perverting the course of justice.</p>\n", "score": 0 } ]

[ "england-and-wales", "common-law", "rules-of-evidence" ]

[ { "answer_id": 91533, "body": "<p>Without her counter claim, many people watching the case would be thinking &quot;I bet she was guilty, but the poor victim didn't have enough evidence&quot;. With the judge ruling in her favour with the $1 award, many of these people will instead say &quot;So she was innocent, and the guy was guilty. How nice of her to only ask for $1 instead of all his money&quot;.</p>\n<p>So that explains why she made that counterclaim: Legally it doesn't make much difference (although it improves her chances of getting awarded lawyer costs), but the outcome in the public opinion is much better for her.</p>\n<p>The important thing with the counterclaim is that when successful, it shows she was innocent (not just &quot;not guilty because we can't prove it&quot;), so it's neither frivilous nor can it be rejected as &quot;de minimis&quot; because she doesn't need the money, but she was defending her reputation.</p>\n<p>(Now everyone here hopefully knows that this was a civil case, so &quot;guilty&quot; and &quot;not guilty&quot; should normally not be used, but in the public eye they exist. )</p>\n<p>Re comments: So what were her true damages? According to the ruling, someone drove into here on the ski slope, and according to what she said herself she wasn't harmed in any way. So there would be very little in damages. Still, you are not allowed to drive into people on a ski slope, so $1 is not that far away from the correct amount. Maybe she could have asked for $1,000. She could have been injured, then she could have asked for a lot more.</p>\n", "score": 1 } ]

[ "civil-law", "any-jurisdiction", "utah", "frivolous-arguments", "civil-damages" ]

[ { "answer_id": 91456, "body": "<p>&quot;The whole truth&quot; is part of a formulaic phrase which has been operationalized to mean merely &quot;don't commit perjury.&quot;</p>\n<p>A witness simply answers the questions asked and is not permitted to go further.</p>\n<p>The witness is at the mercy of the lawyer's whims. The witness does not have a right to testify beyond the scope of the question asked.</p>\n<p>It is improper for a lawyer to cut off a witness when in the middle of providing an answer to the question asked, but those points are for the other side's lawyer and the judge to raise, not the witness.</p>\n<p>If the answer of a witness to the question asked on cross-examination leaves a false impression, it is up to the other side's lawyer to correct that by asking additional redirect examination questions of the witness in our adversary system.</p>\n<p>Asking questions that when answered truthfully leave a false impression because the answer presents an incomplete version of the whole story is standard practice in lawyering. This tactic is less effective, however, in jurisdictions like Colorado where judges and juries can also ask their own questions of witnesses once the lawyers are finished asking their questions.</p>\n", "score": 28 }, { "answer_id": 91459, "body": "<p>The defendant in <a href=\"https://supreme.justia.com/cases/federal/us/409/352/\" rel=\"noreferrer\">Bronston v. United States</a>, 409 U.S. 352 told a partial truth but not the whole truth, and got away with it. The crucial feature of his testimony is that he only answered part of the question asked, and it was the duty of the opposing lawyer to detect the discrepancy. This gave rise to the &quot;literal truth&quot; standard, which has then been clarified in various ruling such as <a href=\"https://caselaw.findlaw.com/us-6th-circuit/1281551.html\" rel=\"noreferrer\">US v. De Zarn</a> which focus on the entire context of testimony, not just on the absolute truth value of an isolated sentence.</p>\n<p>The problem with the concept &quot;the whole truth&quot; is that it is impossible to testify to everything that you know to be true, you can only testify to that which you know to be true <em>and relevant</em>. The form of the question can dictate what is relevant, for example if the question asks &quot;did you see Smith on the night of June 30&quot;, then not mentioning anything about June 29 or the morning of June 30 would not be &quot;failing to tell the whole truth&quot;, and it would not be perjury if you answered &quot;No&quot; even when you say Smith on the morning of June 30. If the question was more broadly &quot;Have you ever seen Smith&quot;, then in those circumstances, &quot;No&quot; would be perjury. In other worth, you are entitled to assume a certain scope of relevance, <em>if</em> not clearly contradicted by the whole of the testimony (which is why you need a lawyer to watch out for your interests).</p>\n<p>If, ill-advisedly, you say &quot;No.&quot; intending to continue &quot;Well, actually, yes, I did see him on the morning of the 30th&quot;, you might get dismissed by the attorney. Before you leave the stand, you can address the court and ask permission to correct your testimony.</p>\n", "score": 12 }, { "answer_id": 91499, "body": "<p>Court contains two parties. You look dead square at <em>the other</em> counsel and go &quot;HELP!&quot; in whatever way you can signal that.</p>\n<p>They write a note.</p>\n<p>At appropriate time, they say &quot;Redirect, your honor&quot;.</p>\n<p>&quot;Go ahead.&quot;</p>\n<p><strong>And then they ask you to finish your thought.</strong></p>\n<p>But no, other than that you don't get to tamper with the court's flow in real time. If you don't feel the story has been told to your satisfaction, you can talk to the friendly counsel off-line and tell them what was missed, and they can recall you to the witness stand.</p>\n<p>I suppose in some circumstances, you could file an <em>amicus</em> brief, which is how a 3rd party injects legal input into a proceeding.</p>\n", "score": 9 } ]

[ "united-states", "trial", "witnesses", "testimony", "oath" ]

[ { "answer_id": 91497, "body": "<h2>Losing your passport is fine, happens all the time</h2>\n<p><strong>But that’s not what you are talking about, is it?</strong></p>\n<p>You’re intending to deliberately destroy it.</p>\n<p>While destroying a passport is not a specific offence under the <a href=\"https://passportindia.gov.in/AppOnlineProject/online/PassportAct\" rel=\"nofollow noreferrer\">Act or the Rules</a>, your proposed course of action is still illegal.</p>\n<ol>\n<li>The passport doesn’t belong to you. It belongs to India and deliberately destroying other people’s stuff is illegal.</li>\n<li>To get a new passport you would necessarily be lying and giving false information on a passport application <em>is</em> an offence.</li>\n</ol>\n<p>Of course, one wonders why your family are looking at your passport; just don’t show it to them.</p>\n", "score": 3 } ]

[ "india", "indian-penal-code" ]

[ { "answer_id": 36461, "body": "<blockquote>\n <p>Now after 4 years I still can't get it off my mind and it's consuming\n me thinking that I was fooled into believing that the rule of law was\n the norm in this country (not the jungle law) and the beautiful\n constitution we have is not there just to look pretty, but something\n we can rely on.</p>\n \n <p>So, at this point, do I need legal help? Or mental help or some kind\n of miracle pill to help me cope with the situation (?) I know that 6'\n under we can have peace, but can I live a peaceful (bully free) life\n here too?</p>\n</blockquote>\n\n<p>We do have rule of law as a powerful norm in this country. But, we also live in a very complex society and the exact content of the law will always be the subject of fierce dispute.</p>\n\n<p>The solution is, pretty much, to lower your expectations. The vast majority of the time the law works. Your beliefs about exactly how far you are allowed to disobey an order from a law enforcement officer as a matter of practical reality, were miscalibrated. But, you did get out of jail the next day and the punishment you received was very survivable. In much of the world, this wouldn't be true.</p>\n\n<p>The rule of law doesn't mean that everyone perfectly obeys the law. It means that when the law is seriously broken in a manner that has big consequences that there is usually a way to legally mitigate the harm or to obtain a remedy.</p>\n\n<p>Pushing the limits of the freedoms the law gives you is rarely wise. But, that is no reason to refuse to live your life. It is one thing to learn from experience. But, sometimes, you can overlearn from experience and need to recognize that your anecdotal experience on a single occasion is not all that there is the law.</p>\n", "score": 8 }, { "answer_id": 36400, "body": "<p>The main issue here seems to be uncertainty as to when you can refuse to obey an order by the police. You need to know how to distinguish between an order and a suggestion or request. The words used can tell you directly that you have been given an order: verbs in the imperative are unambiguously orders. Statements like \"It would help us if you would let us look in the trunk\" is a suggestion; \"I need you to step out of the car\" is on the cusp between a suggestion and an order. The case of <a href=\"https://scholar.google.com/scholar_case?q=387%20So.2d%20913&amp;hl=en&amp;as_sdt=6,47&amp;case=18398649418949817342&amp;scilh=0\" rel=\"noreferrer\">Sly v. Alabama</a> (where the court referred to the statement \"I need to see your driver's license\" as a request) clarifies that a request coupled with a legal obligation to do something is in fact an order.</p>\n\n<p>You also need to know whether the order is \"lawful\", which is about the officer and not you. If it would violate the law for the officer to force you to comply, the order is not lawful. But, as the court pointed out in <a href=\"https://caselaw.findlaw.com/or-court-of-appeals/1541950.html\" rel=\"noreferrer\">Oregon v. Ruggles</a>, \"Whether a particular police order is 'lawful' is frequently a complex question involving some of the most vexing and intractable issues in constitutional law\". It is unreasonable to expect an ordinary citizen to have the depth of knowledge of case law that would be required to know with absolute certainty that an order is unlawful (barring the hypothetical situation where an officer orders you to commit a crime).</p>\n\n<p>What this means, then, is that if you do not comply with a officer's order, you run a substantial risk of being arrested. On appeal you might prevail in your argument that the order was unlawful, if you are willing to spend the time and money to make a point. That seems not to be the case here, since you didn't pursue justice to the end, instead you pleaded no contest (so the judge could not find in your favor). Pleading no contest extinguishes all hope of getting your money back. It is not clear to me what that deeper philosophical point would be, but I suppose that it would be that officers should be vigorously instructed in some of the finer points of Title 47 as it applies to bicycles and the fact that the \"show ID\" requirement applies to <em>motor</em> vehicles, not all vehicles. There are many subtleties in law that are not commonly understood by officers, and while it would be highly desirable for officers to have lawerly expertise in the law, that is an unrealistic expectation. For one thing, what you need is a political solution coming from the legislature (a law about legal training for police), and you can't get a court order demanding that.</p>\n", "score": 7 }, { "answer_id": 37206, "body": "<p>So I did some digging and found the website for <a href=\"https://www.okbike.org/content.aspx?page_id=22&amp;club_id=86708&amp;module_id=157621\" rel=\"nofollow noreferrer\">BikeOklahoma</a>, an advocacy group for cyclists, which has several laws and some interpretations of specific situation. The best interpretation is that as Bicycles are not <strong>motor vehicles</strong>, it has to be explicitly stated that the law applies to bicycles or refers to a <strong>vehicle</strong>, which is defined as any device for transportation does not use rails (i.e. anything not a train... don't ask how a train could accidently get onto the road.). All vehicles count as <strong>traffic</strong> as defined by law. The one gray area that was discussed is it seems U.S. 60 is a limited access highway, which could mean bikes are not allowed, but I don't see any specific rule on that... lets set that aside for a moment. Without that, I will say that yes, the Officer probably misread the law and thought that a bicycle counted as a motor vehicle (which cannot drive at a low speed) when it in fact does not.</p>\n<p>Now, this is not to say you did not do anything wrong, because you did. Per Oklahomala law §47-11-103:</p>\n<blockquote>\n<p>No person shall willfully fail or refuse to comply with any lawful order or direction of any police officer invested by law with authority to direct, control or regulate traffic.</p>\n</blockquote>\n<p>This means that any lawful request by the officer you refused is an infraction of this law. So the question becomes was the officer giving you a lawful order? BikeOklahoma offers §47-6-112:</p>\n<blockquote>\n<p>License to be Carried and Displayed on Demand of Peace Officer A. Every licensee shall have his or her driver license in his or her immediate possession at all times when operating a motor vehicle and shall display the same upon demand of a peace officer. Any person violating this subsection shall, upon conviction, be guilty of a misdemeanor.</p>\n</blockquote>\n<p>While it is true that bike is not a motor vehicle, there is one other element that comes into play, §47-10-104 A (likely paraphrased but I can't say if it is true rule as written):</p>\n<blockquote>\n<p>If you are involved in an accident or stopped for a traffic violation, you are required to identify yourself.</p>\n</blockquote>\n<p>Since you do qualify as &quot;Traffic&quot; by the definition of the law, and you were stopped for a traffic violation (even if the cop misread the rule) you are still required to identify yourself to the officer. As the officer was invested by law to regulate traffic, which includes all legal vehicles, motor or not, and he did make a stop on you (even if the law was incorrectly applied) he is within his legal authority to lawfully request you to identify yourself, and request a form of identification (it need not be a drivers liscense... it could be a passport or a state ID) to validate that you are the person you are claiming to be. The judge is correct that you did break the law in this respect and since you paid bail, you are required to return to court.</p>\n<p>BikeOklahoma lists several remedies to a cop who misinterprets the laws, none of which involve contesting them at the traffic stop. Had you offered your ID and taken the ticket, you could return to court to plead your case to the judge, who likely would have likely found you innocent. Mistakes in the enforcement of the law do happen (And in fact, I had a similar mistake on the states part happen to me... essentially, I had paid a traffic ticket several months previous and had recieved a reciept to that effect... however, the DMV did not properly check all the boxes and accepted the fact that I had paid, but forward the notice that I had not to the Police... flash-forward several months when I was pulled over for driving on a &quot;suspended license&quot;. Despite the fact that it was clearly an error, the officer had to &quot;arrest me&quot; (legally yes, but he released me on my own recognizance and I was given a date to go to booking office to properly file these facts)... and I had to go to court and prepare my case... in the end, the prosecution found the same issue and dropped it.). Even though state and thereby the officer were incorrect in my violation of the law, the side of the road, at 2 am on a holiday weekend was not the place to argue with the cop... the court date was. Had I failed to comply, I would have been arrested for an actual crime, rather than been released to still go about my life until the judicial system did it's own thing.).</p>\n", "score": 2 }, { "answer_id": 41145, "body": "<p>There's not an explicit minimum speed limit, but note that the officer didn't say you were below the limit - he said you obstructed traffic. The limit on that highway is probably about 70 mph, and in the picture it's a single lane with double lines. If any cars need to use the highway while you bike, they will very quickly end up stuck behind you driving at ~20 mph (if that) with no way of legally passing you. So you really would be obstructing traffic.</p>\n\n<p>This isn't specific to bikes - a car driving 20 mph would come under the same rule. Even if the car was driving that slow due to damage, it might still be considered obstruction because the driver didn't choose a slower road. Even if the damage was caused on the road, the officer might tell you to get a tow truck instead. Of course in the realistic situation of getting a flat tire and having to drive 40 on your spare they would probably be more understanding.</p>\n\n<p>Generally the solution to such situations is that the slow vehicle pulls right into the shoulder (and maybe even stops), letting the faster traffic go around. It is technically an illegal pass (not if you pull over and stop) but rarely punished. Possibly you could have also biked on the shoulder or the grass. In any case, when a cop does tell you to stop doing something, your best option is to comply (as you've found out). Keep in mind that riding bikes on a highway is not a constitutional right.</p>\n\n<p>The arrest and ensuing court case was clearly not caused solely by biking, but also refusing to show ID as well as the Tylenol. In all, it doesn't sound very fair, but it's one of those grey areas where you technically didn't do anything illegal, but did get clever with the cop/system, and as a result the system exercised its bureaucratic power to give you the run around. Again, I don't see how your constitutional rights are violated here - if you do, feel free to go to the Supreme Court (and I'd be happy for you if you did - as I said, the situation is unfair and I wish it didn't happen). Unfortunately, the founding fathers did not have the wisdom to include freedom from bureaucracy in the bill of rights. The right to speedy and fair trial is unfortunately subject to reinterpretation of what exactly counts as speedy or fair, just as many other parts of the constitution. In any case, this slow creep of judicial activism is not something you can fight by annoying cops, you can only fight it by voting and possibly practicing in the Supreme Court. I say possibly because I'm skeptical that any legal professional ultimately has much power over the Supreme Justices.</p>\n\n<p>Alternatively, you can also try to sway public opinion so that the police departments change policy, which has actually been happening for bike related law over the past years, but that is not very related to your objections on constitutional grounds.</p>\n\n<blockquote>\n <p>Is making up a law on the spot an acceptable alternative to the requirement that the cops have to have a reasonable suspicion in order to detain a civilian?</p>\n</blockquote>\n\n<p>In theory, no. In practice, this is pretty common in the US. Police often don't know the law or they are wrong about it. Whether it is still a reasonable suspicion if the cop misunderstood the law is for the court to decide - and in cases such as yours where there is injustice but not gross injustice and no significant political issue is served by siding with you, the courts tend to default to siding with the police. Also the courts really don't like people making light of the court's rules, so if you flout them, they can \"make an example\" by throwing the book at you just to ensure that nobody else gets funny ideas in the future.</p>\n\n<blockquote>\n <p>Remember, \"Injustice anywhere is a threat to justice everywhere\"</p>\n</blockquote>\n\n<p>Injustice is indeed bad, but in your last election, did anyone run on a platform eliminating injustice (legal, not economic or social) and upholding constitutional rights? Did you vote for them? Did they win? Did they do what they promised? If not, then as an ideal it is nice, but not very useful to understanding the legal reality.</p>\n\n<blockquote>\n <p>Was the cop right? Does anyone know of a \"minimum speed limit\" on US hwy 60 ?</p>\n</blockquote>\n\n<p>Right to stop you? I'd say yes, based on the first part of my answer. Right to arrest you? Per se, no, it seems unnecessarily heavy-handed. But then you did provoke him by disobeying. I still don't think needlessly harsh treatment from police is justified just because you annoyed the cop, but realistically, you can't expect to annoy a person with power and have no repercussions. You could claim you were harassed, but you wouldn't have a case because the harassment was very minor and debatable.</p>\n\n<blockquote>\n <p>Was the judge right to make me come back to OK (under threat of arrest warrant) just to tell me that he can not dismiss the case (in case I was to plead not guilty) ?</p>\n</blockquote>\n\n<p>It's certainly <em>mean</em> of him to do that, but then he doesn't owe it to you to be nice. As for legally, he is perfectly within his rights. Missouri isn't that far and expecting you to appear in court for the arrest is not unreasonable. Granted, for such a trivial thing it's a bit unnecessary - which is why if you are cooperative the police <em>will</em> often offer you the opportunity to \"just pay the fine and make it go away\". But then we come back to the issue of your attitude to the officer.</p>\n\n<p>I'm not saying that you're not in the right here, but you have to consider that cops are not robots but human beings, as are the courts. Even if it is illegal for him to arrest you, he might arrest you anyway if you give him a reason (such as annoying him). Yes, legally you could then seek restitution and punishment for the cop. But you will have to convince the court of your case, in which you may or may not succeed. Either way, it can cost you money and time. So you have to think of the law not as a law of nature, but as a guideline that will <em>probably</em> be followed <em>more or less</em>, and eventually the courts will ensure some measure of justice (although justice according to them, not you, and based on what they <em>think</em> the situation was, and not reality). But in terms of the here and now, you have to also consider the human factor, which might dominate over the legal in determining what will happen next and whether you'll be happy with it.</p>\n", "score": 0 }, { "answer_id": 91506, "body": "<blockquote>\n<p>Later in the hallway I told the judge the cop's reasoning and his reply was: &quot;He may have been wrong on the bicycle law, but you still should have handed him your ID&quot;</p>\n</blockquote>\n<p>That is correct. The officer was mistaken about the speed limit, but you snatched defeat from the jaws of victory by botching the police encounter. Probably, because you had not been properly trained on <strong>how to conduct yourself in a police encounter</strong>. You'd think that would be part of official university curriculum along with financial education - bah, probably a bad idea as the authorities would tamper with the curriculum. However, it <em>is</em> available, in a manner analogous to <a href=\"https://harrypotter.fandom.com/wiki/Dumbledore%27s_Army\" rel=\"nofollow noreferrer\">&quot;The D.A.&quot; in <em>Harry Potter</em></a> -- taught ad-hoc by people passionate about civil rights bringing in guests like the ACLU to teach seminars. As such, to call it an &quot;elective&quot; is an understatement.</p>\n<p>Get up to speed on how to conduct yourself in police encounters. The ACLU has pages and pages of quality analysis -- <a href=\"https://www.aclu.org/know-your-rights/stopped-by-police\" rel=\"nofollow noreferrer\">and all this stuff</a> is &quot;memory checklist items&quot; for any citizen.</p>\n<blockquote>\n<p>Now after 4 years I still can't get it off my mind and it's consuming me thinking that I was fooled into believing that the rule of law was the norm in this country (not the jungle law) and the beautiful constitution we have is not there just to look pretty, but something we can rely on.</p>\n</blockquote>\n<p>I understand the hurt feelings and <em>l'esprit d'escalier</em> of wishing you had done something different... but honestly, bicycling <em>across a huge nation</em> is more ambitious and bold than perhaps you know, and it hurts my heart to think a bad experience has turned you into a shrinking violet.</p>\n<p>If I may be brutally honest, there's some vanity in what you say. You have nurtured your hurt feelings and wrapped yourself in a feeling of injustice, but you have not displayed one ounce of admitting to error, and certainly not owned the mistakes and grown better by them.</p>\n<p>You botched the traffic stop badly due to lack of education. The result was your fault. You should forgive yourself and use the burn as motivation to school up on how to do this. You're going to have to write the experience off - there's nothing you can do about it now. In law, you only get one bite at the apple. You could have lawyered up and fought the good fight, but you went another way for reasons. And that's it, the end.</p>\n<h2>DO NOT litigate &quot;at the side of the road&quot;</h2>\n<blockquote>\n<p>1 - Is making up a law on the spot an acceptable alternative to the requirement that the cops have to have a reasonable suspicion in order to detain a civilian? <em>Remember, &quot;Injustice anywhere is a threat to justice everywhere&quot;</em></p>\n</blockquote>\n<p>Of course not, but again according to ACLU etc. advice, <strong>you do NOT litigate THAT at the side of the road</strong>. You follow the narrow &quot;script&quot; as their consumer lawyers have defined it, and then you <strong>get to the end of the encounter</strong> and move on.</p>\n<p>Finish the police encounter without error on your part, and then, if there's a problem like an improperly applied law, sort that out later with the court. As cops famously say, &quot;tell it to the judge&quot;. That is correct, cops aren't lawyers.</p>\n<p>Typically the results of an improper police action are &quot;fruit of the poisoned tree&quot; and will be thrown out in court.</p>\n<p>Expecting cops to be perfect is unrealistic. Do they &quot;game&quot; the fact that they're not lawyers by accidentally-on-purpose making &quot;errors&quot;? You bet they do, but this is not fixable <em>at the side of the road</em>.</p>\n<h2>The Vulcan &quot;hello&quot;</h2>\n<blockquote>\n<p>2 - Was the cop right? Does anyone know of a &quot;minimum speed limit&quot; on US hwy 60 ? (there were no signs about minimum speed limit or any signs regulating bicycle trafic on that road)</p>\n</blockquote>\n<p>No, see Oklahoma 47-11-804. To set a minimum speed limit requires a special procedure, and set of underlying circumstances which would be <em>extremely unlikely</em> on the type of road a bicyclist would consider a suitable rural bicycle route.</p>\n<p>But you missed the entire point of that stop, because you're seeing red about civil rights. Better to have more &quot;street smarts&quot; than that.</p>\n<p>The actual purpose of the stop was to &quot;get to know ya&quot;. They wanted to find out <em>who you are</em>, this random person going through their area of responsibility. And that stop was a whole bunch of &quot;get to know ya&quot; things at once:</p>\n<ul>\n<li>To see if you're a fugitive.</li>\n<li>If you were thinking of committing any crimes, to rattle you so you think of taking a pass on this county.</li>\n<li>To have your ID in case any local crimes happen connected to a mystery bicyclist, and/or to know who you are if they find your body in a ditch with ID missing.</li>\n<li>To do a welfare check (are you OK/ in distress?).</li>\n<li>To see if you're actually a local they don't know about.</li>\n<li>To see if you need help/advice / give you a chance to ask about wher things are.</li>\n<li>So you become a &quot;known quantity&quot; they can take off their radar.</li>\n</ul>\n<p>I'm not endorsing that as a police practice, but it's a reality of how some police work, especially in places where &quot;everybody knows everybody&quot;. Also, actually, <em>crime is worse per-capita</em> in rural areas - that's not widely known, <em>but the cops sure know it</em>.</p>\n<p>Of course because they're police they do that uniquely cop-ish way, the &quot;Vulcan hello&quot; (not quite, but it's catchy if you've seen Star Trek: Discovery). Rattling your cage is part of <em>sizing you up</em>. And you would be better off having the &quot;street smarts&quot; to roll with that, and perform your side of the script correctly <strong>but be a nice person</strong>.</p>\n<p>Put them at ease. Yes, it's an annoying chore.</p>\n<blockquote>\n<p>On a single ocasion&quot; ? As I was saying, this incident &quot;culminated a series of many similar experiences&quot; with &quot;funny&quot; excuses for harassment.</p>\n</blockquote>\n<p>Well, it's not that often they see a Mars Rover!</p>\n<p>Seriously, you're <strong>unusual</strong>. It's not every day they see a long haul biker coming through their county. So they're just as interested as all the other people who say &quot;hi&quot; and ask you questions. <strong>They just do it in their uniquely cop-ish way.</strong> For best success, recognize that is what is happening, and <strong>deal with it kindly</strong>. They are regular folk, probably a fair bit <em>nicer</em> than your peers, because &quot;nice&quot; is a social prerequisite in a small town, and they don't like having to do the &quot;cop-ish&quot; thing any more than you do. So yes, it's <em><strong>galling</strong></em> to have to &quot;break the ice&quot; when they open the conversation with red and blue lights, but they don't enjoy their role in that Kabuki theater any more than you do, and <em>when you successfully break the ice</em>, things will probably go pretty well. Of course, never forget it's a traffic stop, and do not violate the rules of those.</p>\n<p>I regularly do this (granted, when I'm pulled over I'm not innocent) but as soon as possible I drop that I spend summers here volunteering at a local charity. I can't tell you how many &quot;nice to meet you/don't worry about it&quot;s I get. Likewise for you, &quot;Yeah, am I on the right road for &lt;perfectly respectable local lodging or dining here&gt;?&quot; That immediately lets them tick a bunch of the above boxes and puts them at ease - you're regular folk, just odd in a way that's not their problem.</p>\n<p>And as you get better than this, you get good at following the script with panache so it doesn't offend the officer. For instance, &quot;I need you to _______&quot; is standard form because case law says it's a police order you must obey <em>if it's a valid order</em>, otherwise it's a request. But that allows them to &quot;play it both ways&quot; giving plausible deniability of accused of an illegal order. The proper reply is&quot; Is that a police order?&quot; calling their bluff and making them commit. However this is confrontational; you're calling them a bad cop. Much smoother is to say &quot;do I <strong>really have to?</strong> (glances at gear) It'll take some digging&quot;. That calls their bluff exactly the same, but <em>gives them</em> a face-saving &quot;out&quot;: aw, don't worry about it. That's what I mean about skill and street smarts.</p>\n<p>I know it's <em>grating</em>, but it's like Sun Tzu says: always give your enemy a retreat path (unless you're prepared for a fight to the death).</p>\n<h2>When you dig the hole deep enough, you need to go to court.</h2>\n<blockquote>\n<p>3 - Was the judge right to make me come back to OK (under threat of arrest warrant) just to tell me that he can not dismiss the case (in case I was to plead not guilty) ?</p>\n</blockquote>\n<p>Yes, even presidents have to appear at arraignments. However given the distance you'd been better off retaining a local lawyer, who would a) probably have been able to make <em>the whole thing</em> go away (and then, no arraignment at all), or b) would have at least been able to appear in court for you, saving you most of the trips. Country lawyers often aren't nearly as expensive as city lawyers. Have you heard the one about the person who represents oneself has a fool for a client?</p>\n<p>They don't arraign for traffic tickets. This was a serious matter and you don't even realize it. You were in the soup. You got into it by botching the police encounter, which opened the door to their searching your belongings, which then &quot;compounded&quot; your trouble with your mishandling of the drugs. <em>Come on, man, you've crossed national boundaries. Each drug always in a pharmacy-supplied container.</em></p>\n<p>The drug thing would have resolved itself once they tested, but probably polarized them into pressing charges they might not have otherwise pressed. I'm sure your aggressive but ill-informed conduct did not help matters.</p>\n<p>This could've been much worse. Learn to behave at police encounters.</p>\n<blockquote>\n<p>I was fooled into believing that the rule of law was the norm in this country (not the jungle law) and the beautiful constitution we have is not there just to look pretty, but something we can rely on.</p>\n</blockquote>\n<p>I was raised to believe that <strong>freedom isn't free</strong>, and it's something you have to fight for. There are a lot of people fighting the good fight, and you should stand on the shoulders of these giants instead of what you've been doing. And ask anyone who's been the victim of a predatory lawsuit or civil asset forfeiture, you don't get to volunteer, you get drafted. That's how it is. And I think you know it has to be that way. I'm sorry you got drafted.</p>\n<p>By the way, there's not a small chance the cop feels the same way about freedom. But the job of a police officer is to catch bad guys, and they depend pretty heavily on them not being all that bright. If you stick up for your rights friendly but firmly, you're likely to get respect.</p>\n", "score": 0 } ]

[ "united-states", "traffic", "oklahoma" ]

[ { "answer_id": 91537, "body": "<p>In the US at least, there is no mention of &quot;mind reading&quot; in the Constitution. But should such a technology be developed and actually used to read someone's mind and then that information was used against them in court, I can certainly see an appeal on at least 5th Amendment grounds.</p>\n<p>It's also possible that should such a technology become viable, that state legislatures and even the US Congress passing prohibitions on using it under certain circumstances.</p>\n", "score": 3 }, { "answer_id": 91538, "body": "<p>I assume that the mind-search is accompanied with a warrant, making it analogous to a search of your home for evidence. Such a search requires probable cause – let's assume we have probable cause. A search of your home for incriminating evidence does not require your cooperation, which then raises the question about the technology for mind-reading. If the technology &quot;just reads&quot; without require cooperation from the victim, then an appeal to the 5th Amendment is less likely to be successful. If the technology requires the victim to somewhat-voluntarily do something, then a 5th amendment objection is more likely to succeed. In <a href=\"https://supreme.justia.com/cases/federal/us/168/532/\" rel=\"nofollow noreferrer\">Bram v. United States</a>, SCOTUS provided a 5th Amendment basis for the doctrine that you cannot beat a confession out of a person,</p>\n<blockquote>\n<p>commanding that no person &quot;shall be compelled in any criminal case to\nbe a witness against himself.&quot;</p>\n</blockquote>\n<p>A beating is a clear case of compulsion – force is used to compel you to testify against oneself. Seizing papers which are used as evidence against a person is not the same as forcing the person to <em>testify</em> against themselves. Non-forcefully copying the contents of a mind could be seen as analogous to seizing documents: or not. I don't see that the matter is cut and dried, although if this ever becomes a real issue in the courts, you can be sure that both sides will see this as already having a clear-cut answer.</p>\n", "score": 3 } ]

[ "united-states", "privacy", "fifth-amendment" ]

[ { "answer_id": 91520, "body": "<p>Regarding inventions in performance of contractual obligations, these are inventions that are closely connected to the services described in the employment contract or related contractual documents. The creativity of the employee is why the employer pay them to create these inventions. Examples of service inventions include product designs for business purposes of the employer produced by a designer whose work contract includes &quot;producing graphics design and other visual components&quot; as one of their duties. The key factor in determining whether an invention is a service invention is its close connection to contractual responsibilities in the employment contract, rather than the location or timing of the invention's creation.</p>\n<p>Incidental inventions are inventions that are not created in exercise of a listed contractual duty, but are still closely connected with the employee's employment. In such cases, the employer can reserve the right to acquire the employee's incidental inventions for fair compensation. An invention is likely incidental to employment if it is created in connection with work resources or during work time. However, even if the invention is created during the employee's free time, it may still qualify as an incidental invention if it is closely related to the employee's employment generally, even if the work contract does not explicitly foresee it. For example, a salesperson at a clothing store designs a better coat hanger, whether during work time or not, may be subject to the incidental invention rules. The invention or design is owned by the employee. But if the work contract reserved the right of acquisition, the employee must notify the employer, who then have six months to declare its intention to abandon the right or acquire the invention for a fair compensation. Otherwise, the salesperson is free to do whatever they want with their invention, subject to their other obligations. For example, the salesperson cannot use their invention rights in detriment to their current employer (e.g. selling the design to a competitor) due to their duty of loyalty under employment (but once the employment ceases, the duty ceases).</p>\n<hr />\n<p>The situation where an employee has similar intellectual work for multiple employers is rare in Switzerland. If a conflict of interest arises because a work can be argued to be the result of contractual obligations of more than one employer, the employee is likely in violation of their duty of loyalty to the employers unless consent was given. In the case of a service invention created pursuant to the contractual responsibilities to one employer only, that employer is the owner of the invention from the beginning. The incidental case does not apply since the first employer only has the right of acquisition from the employee, not the other employer.</p>\n<p>In the case of incidental inventions, I did not find any cases settled by court. If an incidental invention was produced on the premises of the other employer or used the resources of the other employer, the other employer probably has the priority claim, possible conflict of interests notwithstanding. If the invention is created during the employee's free time and can be reasonably seen as within the general missions within the framework of both employers, it would be difficult to decide and the whole circumstance would need to be taken into account.</p>\n<p>If the invention is created during the employee's free time and can be reasonably seen as within the general missions within the framework of both employers, it would be much more difficult to decide and the whole circumstance would need to be taken into account.</p>\n<hr />\n<p>Just as a sidenote, softwares as such are protected by the copyright law, and do not usually qualify as an invention or design. The employer has the exclusive usage right of softwares created in employement duties. Incidental creations of softwares on the otherhand are not regulated by law, but usually dealt with in employement contracts.</p>\n<ol>\n<li><a href=\"https://www.weka.ch/themes/droit/droit-du-travail/droit-du-travail-suisse/article/inventions-faites-par-le-travailleur/\" rel=\"nofollow noreferrer\">https://www.weka.ch/themes/droit/droit-du-travail/droit-du-travail-suisse/article/inventions-faites-par-le-travailleur/</a></li>\n<li><a href=\"https://www.lausanne.ch/vie-pratique/travail/protection-des-travailleurs/travailleur/contrat-de-travail-regles/droit-sur-inventions-et-designs.html\" rel=\"nofollow noreferrer\">https://www.lausanne.ch/vie-pratique/travail/protection-des-travailleurs/travailleur/contrat-de-travail-regles/droit-sur-inventions-et-designs.html</a></li>\n<li><a href=\"https://www.weka.ch/themes/droit/droit-du-travail/droit-du-travail-suisse/article/droits-immateriels-questions-reponses-issues-de-la-pratique/\" rel=\"nofollow noreferrer\">https://www.weka.ch/themes/droit/droit-du-travail/droit-du-travail-suisse/article/droits-immateriels-questions-reponses-issues-de-la-pratique/</a></li>\n</ol>\n", "score": 1 } ]

[ "contract-law", "intellectual-property", "employment", "switzerland" ]

[ { "answer_id": 91534, "body": "<p>Identification is require only in\n<a href=\"https://casetext.com/statute/alaska-statutes/title-28-motor-vehicles/chapter-2835-offenses-and-accidents/article-03-miscellaneous-offenses/section-2835180-disobedience-to-signals-of-officer-regulating-traffic-prohibited\" rel=\"nofollow noreferrer\">Alaska</a>, <a href=\"https://codes.findlaw.com/ca/vehicle-code/veh-sect-2800.html\" rel=\"nofollow noreferrer\">California</a>, <a href=\"https://oregon.public.law/statutes/ors_162.247\" rel=\"nofollow noreferrer\">Oregon</a> and <a href=\"https://oregon.public.law/statutes/ors_811.535\" rel=\"nofollow noreferrer\">also</a>, and <a href=\"https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&amp;ttl=75&amp;div=0&amp;chpt=31&amp;sctn=2&amp;subsctn=0\" rel=\"nofollow noreferrer\">Pennsylvania</a>. In these states, if a person is uniformed (AK,CA,PA) or wearing a badge (AK,OR), or if the defendant &quot;knows&quot; that the person is an officer, they are penalized if they do not obey the order. In other states, you are simply penalized if the person giving the order is a police officer. In those states where there is no statutory limit on police power to give commands, it depends on what the courts have ruled. In North Carolina, following <a href=\"https://casetext.com/case/glenn-robinson-v-acker\" rel=\"nofollow noreferrer\">Glenn Robinson v. Acker</a> there is a burden on off-duty officers to establish their authority, and</p>\n<blockquote>\n<p>an officer may not assume that others will know he is a police officer\nwhere he simply states as much and flashes &quot;something,&quot; while wearing\ncivilian clothing, working off-duty, and acting &quot;out of control.&quot;</p>\n</blockquote>\n<p>But in Alabama, following <a href=\"https://scholar.google.com/scholar_case?case=18398649418949817342&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr\" rel=\"nofollow noreferrer\">Sly v. State</a>, 387 So. 2d 913 referring to the statutes,</p>\n<blockquote>\n<p>Neither section makes any reference to whether the peace officer was\non or off duty</p>\n</blockquote>\n<p>so there is no requirement to <em>prove</em> that you are an officer.</p>\n<p>The majority of states give this power to officers with traffic control powers. Maryland, Missouri, Nebraska, Oregon,\nPennsylvania, South Dakota, Texas and Utah grant that power with no restriction, and Alaska, California, Florida, Michigan,\nMontana, Nevada, New Jersey, North\nCarolina and Vermont limit police command power to specific circumstances (traffic or emergencies). <a href=\"https://www.yalelawjournal.org/pdf/MooneyComment_6w54gon8.pdf\" rel=\"nofollow noreferrer\">This article</a> lists various cases in states that bear on the question – there is no clear and uniform law on the matter in the US. Some courts have limited the power to traffic related matters, others (where it is not part of the statutory law) have extended the power to outside of traffic stops. For example, in Ohio which is in the majority &quot;can issue traffic tickets&quot; set of states, <a href=\"https://casetext.com/case/state-v-thigpen-13\" rel=\"nofollow noreferrer\">State v. Thigpen</a>, 62 N.E.3d 1019 ruled that</p>\n<blockquote>\n<p>nothing in the plain language of R.C. 2921.331(A) limits it solely to\norders or signals of police officers actively engaging in traffic\ndirection, control, or regulation.</p>\n</blockquote>\n<p>It is more likely that if the statute refers to <em>willfully</em> failing to comply, that creates some obligation for the officer to identify themselves.</p>\n<p>To simplify this, here are a few ordered generalizations. In 4 states, there is some requirement to be identifiable as a police officer via a uniform or badge, as noted above. In some states, it is a crime to <em>willfully</em> fail to comply – not complying with an officer whom you have reason to believe to be a LEO (e.g. he is wearing his uniform). Otherwise, if the person is in fact an officer, it is a crime to not comply.</p>\n", "score": 1 } ]

[ "united-states", "police", "identification" ]

[ { "answer_id": 91531, "body": "<blockquote>\n<p>the definition includes further references to some sections? What are\nthese sections, where are they? I would have appreciated a link to the\nrelevant sections at least. Can someone point me to the right\ndirection?</p>\n</blockquote>\n<p>&quot;Any direct or indirect 25% foreign shareholder&quot; is defined in the publication linked in the question and that provides further links with addition detail for that definition.</p>\n<p>While link only answers are normally not appropriate, this is all that the question seems to be asking for. So the relevant links are to Internal Revenue Code §§ <a href=\"https://www.law.cornell.edu/uscode/text/26/267\" rel=\"nofollow noreferrer\">267</a>, <a href=\"https://www.law.cornell.edu/uscode/text/26/482\" rel=\"nofollow noreferrer\">482</a>, and <a href=\"https://www.law.cornell.edu/uscode/text/26/707\" rel=\"nofollow noreferrer\">707</a> a.k.a. 26 U.S.C. §§ 267, 482, and 707.</p>\n<p>&quot;Internal Revenue Code&quot; is another way of say &quot;Title 26 of the United States Code&quot;, and references in federal tax materials to section numbers without further attribution are to sections of the Internal Revenue Code.</p>\n<p>In general, IRS Form 5472 is a form that is only filled out by people acting with help from specialist tax attorneys or CPAs. It is highly technical and not something that a lay person should attempt themselves in anything but the most trivial factual situations.</p>\n<p>Section 267(b) states:</p>\n<blockquote>\n<p>(b)Relationships</p>\n<p>The persons referred to in subsection (a) are:</p>\n<p>(1)Members of a family, as defined in subsection (c)(4);</p>\n<p>(2)An individual and a corporation more than 50 percent in value of\nthe outstanding stock of which is owned, directly or indirectly, by or\nfor such individual;</p>\n<p>(3)Two corporations which are members of the same controlled group (as\ndefined in subsection (f));</p>\n<p>(4)A grantor and a fiduciary of any trust;</p>\n<p>(5)A fiduciary of a trust and a fiduciary of another trust, if the\nsame person is a grantor of both trusts;</p>\n<p>(6)A fiduciary of a trust and a beneficiary of such trust;</p>\n<p>(7)A fiduciary of a trust and a beneficiary of another trust, if the\nsame person is a grantor of both trusts;</p>\n<p>(8)A fiduciary of a trust and a corporation more than 50 percent in\nvalue of the outstanding stock of which is owned, directly or\nindirectly, by or for the trust or by or for a person who is a grantor\nof the trust;</p>\n<p>(9)A person and an organization to which section 501 (relating to\ncertain educational and charitable organizations which are exempt from\ntax) applies and which is controlled directly or indirectly by such\nperson or (if such person is an individual) by members of the family\nof such individual;</p>\n<p>(10)A corporation and a partnership if the same persons own—</p>\n<p>(A)more than 50 percent in value of the outstanding stock of the\ncorporation, and</p>\n<p>(B)more than 50 percent of the capital interest, or the profits\ninterest, in the partnership;</p>\n<p>(11)An S corporation and another S corporation if the same persons own\nmore than 50 percent in value of the outstanding stock of each\ncorporation;</p>\n<p>(12)An S corporation and a C corporation, if the same persons own more\nthan 50 percent in value of the outstanding stock of each corporation;\nor</p>\n<p>(13)Except in the case of a sale or exchange in satisfaction of a\npecuniary bequest, an executor of an estate and a beneficiary of such\nestate.</p>\n</blockquote>\n<p>Section 482 states:</p>\n<blockquote>\n<p>In any case of two or more organizations, trades, or businesses\n(whether or not incorporated, whether or not organized in the United\nStates, and whether or not affiliated) owned or controlled directly or\nindirectly by the same interests, the Secretary may distribute,\napportion, or allocate gross income, deductions, credits, or\nallowances between or among such organizations, trades, or businesses,\nif he determines that such distribution, apportionment, or allocation\nis necessary in order to prevent evasion of taxes or clearly to\nreflect the income of any of such organizations, trades, or\nbusinesses. In the case of any transfer (or license) of intangible\nproperty (within the meaning of section 367(d)(4)), the income with\nrespect to such transfer or license shall be commensurate with the\nincome attributable to the intangible. For purposes of this section,\nthe Secretary shall require the valuation of transfers of intangible\nproperty (including intangible property transferred with other\nproperty or services) on an aggregate basis or the valuation of such a\ntransfer on the basis of the realistic alternatives to such a\ntransfer, if the Secretary determines that such basis is the most\nreliable means of valuation of such transfers.</p>\n</blockquote>\n<p>The citation to the relevant regulations under Section 482 are to &quot;Treas. Reg. § 1.482-X&quot; for X= 0, 1, 2, 3, 4, 5, 6, and 8 (Treas. Reg. § 1.482-7 was repealed while it was still a temporary regulation rather than made permanent). All of the Section 482 regulations can be found <a href=\"https://www.irs.gov/pub/irs-apa/482_regs.pdf\" rel=\"nofollow noreferrer\">here</a>.</p>\n<p>Section 707(b)(1) states:</p>\n<blockquote>\n<p>(b)Certain sales or exchanges of property with respect to controlled\npartnerships</p>\n<p>(1)Losses disallowed</p>\n<p>No deduction shall be allowed in respect of losses from sales or\nexchanges of property (other than an interest in the partnership),\ndirectly or indirectly, between—</p>\n<p>(A)a partnership and a person owning, directly or indirectly, more\nthan 50 percent of the capital interest, or the profits interest, in\nsuch partnership, or</p>\n<p>(B)two partnerships in which the same persons own, directly or\nindirectly, more than 50 percent of the capital interests or profits\ninterests.</p>\n<p>In the case of a subsequent sale or exchange by a transferee described\nin this paragraph, section 267(d) shall be applicable as if the loss\nwere disallowed under section 267(a)(1). For purposes of section\n267(a)(2), partnerships described in subparagraph (B) of this\nparagraph shall be treated as persons specified in section 267(b).</p>\n</blockquote>\n", "score": 1 } ]

[ "tax-law", "limited-liability-company", "irs" ]

[ { "answer_id": 12063, "body": "<p>There appears to be no specific number of hours. <a href=\"http://www.aele.org/law/2007JBJUL/2007-07MLJ301.pdf\" rel=\"noreferrer\">This article</a> touches on the matter, presenting a slew of cases where e.g. the prisoner was on a hunger strike (self-imposed starvation is not cruel and unusual punishment). <a href=\"http://law.justia.com/cases/federal/district-courts/FSupp/780/1073/1444986/\" rel=\"noreferrer\">Gardener v. Beale</a> upheld a 2-meal plan with 18 hours between dinner and brunch to be allowed. This was, however a temporary exception rather than a long term policy which was to provide 3 meals not spaced further apart than 12 hours. There does not seem to be any period deemed to be legally too long, however a prison system may have (probably does) have a policy, which cannot simply be ignored. </p>\n", "score": 7 }, { "answer_id": 76827, "body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged &#39;england-and-wales&#39;\" rel=\"tag\">england-and-wales</a></p>\n<p>English custody requirements are that prisoners are fed three times per day, plus any reasonable request for drink during meals or between meals.</p>\n<blockquote>\n<p>The law (<a href=\"https://www.legislation.gov.uk/ukpga/1984/60/contents\" rel=\"nofollow noreferrer\">PACE 1984</a>) requires us to provide at least 2 light and one\nmain meals per day, as well as responding to reasonable requests. That\nsaid, it is normal practice to provide meals when detainees are\nhungry, regardless of how much they have had, within reason. As an\nexample, some homeless detainees may well be far hungrier that those\nmore fortunate, so we do our best to look after their needs by\nproviding more food than some others. In short, we do what is right in\ncompliance with the code of ethics, as opposed to delivering the\nminimum.</p>\n<p>^{^{<a href=\"https://www.essex.police.uk/foi-ai/essex-police/other-information/previous-foi-requests/custody-meals.-what-detainees-eat-and-drink-in-custody/?__cf_chl_captcha_tk__=UaJrvpIer04XkENl9EJnLIsGxaWZtq2jYFzz750eR.4-1641558233-0-gaNycGzNCL0\" rel=\"nofollow noreferrer\">'Custody meals. What detainees eat and drink in custody' - Essex Police</a>}}</p>\n</blockquote>\n<blockquote>\n<p><strong>8.6</strong> At least two light meals and one main meal should be offered in any 24-hour period. See\nNote 8B. Drinks should be provided at meal times and upon reasonable request between\nmeals. Whenever necessary, advice shall be sought from the appropriate healthcare\nprofessional on medical and dietary matters. As far as practicable, meals\nprovided shall offer a varied diet and meet any specific dietary needs or religious beliefs the\ndetainee may have. The detainee may, at the custody officer’s discretion, have meals\nsupplied by their family or friends at their expense.</p>\n<p>_{<Sup>POLICE AND CRIMINAL EVIDENCE ACT 1984 (PACE) – CODE C}</Sup></p>\n</blockquote>\n<p>There is no listed <em>maximum</em> amount of time given between detention and feeding (or between meals) but in practice meals seem to be provided approximately every 6-7 hours in order to meet the legal requirement as well as snacks and drinks for those who express a desire to eat immediately.</p>\n", "score": 3 } ]

[ "united-states", "police", "arrest" ]

[ { "answer_id": 78598, "body": "<p>The first amendment to the US constitution says:</p>\n<blockquote>\n<p>Congress shall make no law [...] abridging the freedom of speech, or of the press; [...]</p>\n</blockquote>\n<p>This constitutional hurdle is a very high obstacle to preventing the media from publicly saying something that is detrimental to the interests of the US government. Giving people the freedom to say &quot;our government is wrong&quot; without being afraid of repercussions is the reason why this amendment exists. And yes, freedom of speech includes the freedom to be wrong. When someone makes false claims in public to sway public opinion, then it's the responsibility of their peers to <a href=\"https://www.politifact.com/personalities/tucker-carlson/\" rel=\"nofollow noreferrer\">point out those falsehoods</a> and let people decide by themselves who to believe. The government can of course also engage in counter-speech, for example by holding a press conference where they address claims made about them and present their side of the debate. But it is not the job of the government to use force to suppress falsehoods, because the government can not be expected to be impartial in this matter.</p>\n<p>The government not suppressing public discourse is one thing which separates libertarian states like the United States from <a href=\"https://politics.stackexchange.com/questions/71414/which-statements-about-the-war-in-ukraine-are-now-criminal-in-russia\">authoritarian states where uncomfortable speech is suppressed</a>.</p>\n<p>There are <a href=\"https://en.wikipedia.org/wiki/United_States_free_speech_exceptions\" rel=\"nofollow noreferrer\">a couple exceptions</a>. But as long as Carlson doesn't make any statements which are defamatory, obscene, fraudulent, violate copyrights or explicitly incite physical violence, the government's hands are tied.</p>\n", "score": 70 }, { "answer_id": 78608, "body": "<blockquote>\n<p>what are the chances of the US government sanctioning Tucker Carlson\nand can it actually be done?</p>\n</blockquote>\n<p>Nil.</p>\n<p>The memo does not allege collusion with Russia or any other foreign power, or working as its agent, either of which requires registration. Independent expression of views sympathetic to another country prominent enough to gain the other country's attention in connection with a media platform is not actionable or sanctionable under U.S. law under the 1st Amendment. It might, however, prompt an investigation by legal means to determine if he was, in fact, an unregistered Russian agent.</p>\n<p>The analysis would change slightly if the U.S. declared war on Russia, but only slightly so and still probably wouldn't justify action without a more targeted basis for it.</p>\n", "score": 31 }, { "answer_id": 78597, "body": "<p>I suspect that the legal threshold for such sanctions is very high. This is not surprising, given that the freedom of expression is an acknowledged value in the US: one can express whatever views they want, as long as it doesn't pose a direct threat to the national security. Since Tucker Carlson is not a government official, his personal opinions are unlikely to affect anything but how people vote (and even this is doubtful, given the degree of voter polarization in the US).</p>\n<p>It is also worth looking at the historical examples: all kinds of Communist and Soviet sympathizers were common in the Cold War era, and certainly were a tool of political influence used by Moscow. Yet very few of them were legally sanctioned, unless they engaged in open espionage. True, some lost jobs through <a href=\"https://en.wikipedia.org/wiki/McCarthyism\" rel=\"noreferrer\">McCarthyism</a> - but these are not legal sanctions. Moreover, there are many high-profile examples who hardly ever suffered from their communist sympathies, such as Bernie Sanders (who studied Marx and campaigned for a communist party as a young man, as he acknowledges) or Angela Davis (twice a vice-presidential candidate for the American Communist party, who openly entertained contacts with high-profile Soviet and East German officials).</p>\n<p>From <a href=\"https://en.wikipedia.org/wiki/Angela_Davis#Soviet_Union\" rel=\"noreferrer\">Wikipedia article on Angela Davis</a>:</p>\n<blockquote>\n<p>In 1971, the CIA estimated that five percent of Soviet propaganda efforts were directed towards the Angela Davis campaign. In August 1972, Davis visited the USSR at the invitation of the Central Committee, and received an honorary doctorate from Moscow State University.</p>\n</blockquote>\n<blockquote>\n<p>On May 1, 1979, she was awarded the Lenin Peace Prize from the Soviet Union. She visited Moscow later that month to accept the prize, where she praised &quot;the glorious name&quot; of Lenin and the &quot;great October Revolution&quot;.</p>\n</blockquote>\n<p>Finally, it is worth bringing up the term <a href=\"https://en.wikipedia.org/wiki/Useful_idiot\" rel=\"noreferrer\"><em>useful idiot</em></a> (usually attributed to Lenin):</p>\n<blockquote>\n<p>In political jargon, a useful idiot is a derogatory term for a person perceived as propagandizing for a cause without fully comprehending the cause's goals, and who is cynically used by the cause's leaders.</p>\n</blockquote>\n<p>I do not intend to insult anybody, but merely pointing out that political positions in opposition to the government, can be often used by the enemies of the country.</p>\n", "score": 14 }, { "answer_id": 78668, "body": "<p>Others have already pointed out the First Amendment issue, but I would also like to point out a potential Fifth Amendment issue (with the disclaimer that I'm not a lawyer):</p>\n<blockquote>\n<p>No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, <strong>nor be deprived of life, liberty, or property, without due process of law</strong>; nor shall private property be taken for public use, without just compensation.</p>\n</blockquote>\n<p>You're not too specific about what you mean by &quot;sanctions,&quot; but I assume that you mean sanctions similar to ones that have been imposed on Russian Oligarchs. In any case, it's hard to imagine any specific sanction that would not result in Tucker Carlson being deprived of &quot;life, liberty, or property&quot;. That being said, since he's a U.S. citizen, the only way they could do this is by him being convicted of a crime.</p>\n<p>Reporting in a biased way and expressing opinions that the government doesn't like are not crimes. Therefore, they cannot deprive him of life, liberty, or property.</p>\n", "score": 4 } ]

[ "united-states", "media", "sanctions", "freedom-of-speech" ]

[ { "answer_id": 85256, "body": "<p>You won't get a reference from your landlord if you don't maintain a good relationship with them. I say just move her in and if you keep paying your rent they shouldn't care or maybe even know about it. If you're still living there she's basically your guest and they likely couldn't do anything and if she reimburses you for some of the rent that's none of LLs business. If they want to evict you on section 8 for breach of tenancy by unlawful subletting they would take a number of months and also they world accrue legal costs so might not even bother. You could then still argue that you aren't subletting as she is just your short term or indefinite guest and the eviction claim might even be thrown out by the court. In any case I think it would take anywhere from 3-8 months to evict you but this is all quite fuzzy in actuality.</p>\n", "score": 2 } ]

[ "england-and-wales", "rental-property", "tenancy-rules", "assured-shorthold-tenancy" ]

[ { "answer_id": 18195, "body": "<p><strong>Applicable Law</strong></p>\n\n<p>A marital agreement can be entered into both before marriage (a prenup) and after marriage (a postnup). And, it will have the same legal effect in either case once entered into by the parties.</p>\n\n<p>In practice, marital agreements are usually proposed by a more affluent spouse and are reviewed by a less affluent spouse who will be giving up many of the legal economic rights usually associated with being married because the alternative is to not get married at all and the less affluent spouse thinks that marriage is still worth it even with fewer economic rights.</p>\n\n<p>The governing principle of marital agreements is that they must be entered into with the highest level of voluntariness, good faith, and full disclosure.</p>\n\n<p>Typically, a prenup with (1) limit the rights of the less affluent spouse in a property division upon divorce, (2) limit the less affluent spouse's inheritance rights, (3) limit the less affluent spouse's right to maintenance (a.k.a. alimony) upon divorce or legal separation, and (4) limit the less affluent spouse's rights to attorneys' fees in the event of a divorce. </p>\n\n<p>Often, these limitations are phased in superficially more equal terms, but the agreement only has a practical affect limiting a spouse's legal economic rights in marriage on the less affluent spouse, when it is recognized that one spouse is starting out affluent and the other spouse is starting out less affluent.</p>\n\n<p>The question states that: \"I have kids so I want to protect them.\" So, determining precisely what you want to protect your kids from and how, in a manner that your spouse, courts evaluating the agreement in the future, and immigration officials, would consider to be legitimate, would be critical. </p>\n\n<p>You should know what impact a death or divorce would have during a short lived marriage for someone in your shoes because you start trying to change the rules, because you might be surprised to learn that the status quo is less unfair than you believe it to be. </p>\n\n<p>For example, in many states, property owned by one party before the marriage was commenced is not subject to division as marital property upon divorce and often the right to alimony following a short marriage that does not produce children is quite modest.</p>\n\n<p>Also, if you are extremely worried about the possibility that your new marriage could fail and that this would force you to make economic sacrifices that you do not think would be acceptable under the status quo in the absence of a prenup, you might want to think twice about whether getting marriage in the way that you are planning to get marriage is really a good idea. Excessive worries about a break up that is damaging to you may be your subconscious's way of telling you that you have grave concerns about this marriage that could be deal breaking, as well as your outward positive hopes and dreams that may be unrealistic. You had a relationship or marriage that failed once. You may be ready for a more successful relationship now, but you need to be comfortable that the circumstances that caused your previous marriage to fail are unlikely to recur.</p>\n\n<p>No prenup will ever make a divorce easy or painless, although it can bring some predictability to the process, if a prenup is well drafted and reasonable.</p>\n\n<p>Typically, <a href=\"http://www.fiduciarylawblog.com/2014/06/colorados-new-uniform-premarital-and-marital-agreements-act.html\" rel=\"noreferrer\">to prepare a valid marital agreement</a>:</p>\n\n<ul>\n<li><p>it must be in writing;</p></li>\n<li><p>it will contain no invalid terms (e.g., in most cases, terms relating to child support or parental responsibilities, or terms that make marital fault relevant to the economic rights of the parties);</p></li>\n<li><p>both parties will have reviewed a complete disclosure of the other party's financial circumstances;</p></li>\n<li><p>each party will have had an opportunity to consult with a lawyer familiar this these agreements (at the other party's expense if the person agreeing to it can not afford a lawyer of their own);</p></li>\n<li><p>each party will review the terms of the agreement in a language that they can understand, and </p></li>\n<li><p>the circumstances under which the agreement is signed will not be under duress broadly defined (for example, to include presentation of the agreement on the eve of the wedding day without adequate time to consider its terms without undue negative consequences if the spouse does not agree). </p></li>\n</ul>\n\n<p>Typically, the lawyer for each party would sign the agreement to confirm that all formal requirements and counsel regarding the agreement has taken place.</p>\n\n<p>A marital agreement that doesn't meet the applicable legal standards (which vary state to state). I have cited the law in Colorado which requires parties to follow what would only be considered \"best practices\" in many other states, although there would be plenty of states where these legal standards would apply.</p>\n\n<p>A marital agreement is still not valid if it is unconscionable to a spouse at the time it is to be enforced, for example, leaving one spouse unable to meet her basic needs and the other spouse wealthy after a long marriage.</p>\n\n<p>There is no requirement that a prenup be signed in any particular country or place, so long as the person signing it understands that their signature is intended to be binding. There is no requirement that a prenup be signed by both spouses at the same time, as long as both spouses sign it before it is to become effective.</p>\n\n<p>Realistically, as of 2017 in an average cost of living U.S. area, you are probably looking a legal expenses and related expenses involved in making a prenup happen given the need for Chinese speaking legal professionals and logistical issues, at an expense of $7,500 to $15,000 or more to get a prenup done under this circumstances. You would need to decide if this expense was worth the benefit to you.</p>\n\n<p><strong>Options</strong></p>\n\n<p>It could be signed by your spouse while your spouse to be is in China, if the proper formalities are observed. In terms of the enforceability of the agreement, and the likelihood that it will be executed, this is probably the best option. But, as a practical matter this may be difficult to accomplish this because lawyers knowledgeable about U.S. law who can communicate in the spouse's topolect of Chinese may be hard to find, and Chinese attitudes towards prenups may be different from those of people in the U.S. </p>\n\n<p>Negotiating a prenup in the face of a quite new relationship that often doesn't have a lot of depth at the start and is based upon mutual hope and a belief that the couple has shared interests as much as an actual long term relationship prior to getting engaged (which is common in marriages of the kind described in this question) can present a difficult challenge for the couple as they develop a marriage relationship very early on in their process when they don't have a lot of communication and relationship foundation to build upon.</p>\n\n<p>Of course, there are exceptions to every rule. Suppose that you've known your girlfriend continuously since she was 14 years old and she is now 24 (you are 25) and both of you are fluently bilingual, because you grew up next to an embassy and she was the daughter of an embassy official and you went to prom together, and then the two of you went to college and graduate school together living together for five of those years. Suppose that she is from a wealthy family and needs the pre-nup to protect her family's wealth, and you are not very affluent despite being the U.S. spouse. Suppose that she's was a paralegal in a family law firm that draws up prenups when she was in college before moving back to China when she finished her studies, while you are a divorce lawyer, and that the two of you have talked about marital agreements for years. This might not be much of a relationship issue and might not pose the kinds of immigration questions raised below. But, if you fell into one of the exceptions to the general rule, you wouldn't be asking this question in the first place in all likelihood.</p>\n\n<p>It is possible <a href=\"https://www.uscis.gov/family/family-us-citizens/fiancee-visa/fiancee-visas\" rel=\"noreferrer\">to obtain a financee visa</a> which allows a foreign spouse to immigrate to the United States with an intent to marry upon arrival. But, in that situation there would be real doubt about whether a marital agreement signed upon arrival would be truly voluntary because failing to agree to the prenup and not getting marriage as a result would result in the financee's immediate deportation and terminate a wedding that the wife had already moved half way across the world and given up everything to participate in.</p>\n\n<p>It is possible to execute a post-nup, but in that case, if it was truly voluntary, the wife probably wouldn't sign it because it would mean that she would be giving up rights that she had already acquired as a result of the marriage for nothing in return, and if it was involuntary, then it wouldn't be valid. </p>\n\n<p>(There are circumstances when a post-nup can make sense for a spouse to voluntarily enter into after marriage, for example, to make rich relatives comfortable including a person in their Will or making a large gift to one of the spouses that is intended to stay in the family but will benefit the spouse during the marriage and the couple's children, but the facts in the question don't naturally suggest any of those circumstances.)</p>\n\n<p><strong>Immigration Concerns</strong></p>\n\n<p>Unlike an ordinary marriage, which is presumed to be valid and in good faith, marriages which afford a spouse the right to immigrate to the U.S. and in due course, to become a U.S. citizen if certain other requirements are met, are carefully scrutinized for signs that it is a \"sham marriage\" and immigration judges can be quite skeptical in determining whether or not a marriage is a sham. </p>\n\n<p>Couples go to great lengths to prove otherwise, and the burden is effectively placed upon them to show that they are not engaged in marriage fraud and instead actually married for love.</p>\n\n<p>If a marriage with an immigrant is found to be a sham, the immigrant's visa will be revoked, the immigrant's citizenship application will be denied, and the immigrant may become deportable. There may also be sanctions for the citizen or permanent resident spouse who sponsored the immigrant.</p>\n\n<p>One factor among many that can be considered <a href=\"http://www.humanrightsattorney.com/the-prenuptial-agreements-effect-on-a-marriage-green-card-case/\" rel=\"noreferrer\">when determining if a marriage is a sham marriage or not</a> is the existence of a prenup or postnup, and even more importantly, its terms. </p>\n\n<p>The more unfavorable the terms of the prenup or postnup are to the immigrant spouse, the more likely it is that an immigration official will conclude that a marriage is a sham for immigration purposes. There isn't a hard and fast rule, but it is one factor that is considered among others in reaching that determination. The key factors in evaluating a prenup for immigration purposes are the terms of the agreement. The more the immigrant spouse's legal rights in the marriage are limited, the more likely immigration officials are to view the marriage as a sham and the couple as engaged in marriage fraud.</p>\n\n<p>On the other hand, if all a prenup does is to insure that a new spouse and children from a former relationship have equal inheritance rights and no rights upon divorce are modified at all, immigration officials may view the prenup as relatively innocuous. </p>\n\n<p><strong>Conclusion</strong></p>\n\n<p>There are a lot of good reasons not to get a prenup in the circumstances you identify if most of my hunches about the usual circumstances involved when someone asks a question of the kind that you have are true.</p>\n\n<p>Before taking this step, you would be wise to consult with a lawyer to see what the likely economic and legal consequences of a divorce or death in the absence of a prenup would likely be in your case, as I suspect that your fears may be exaggerated or may involve issues that a prenup can't address. It could be that once you are well informed it is still clear to you that a prenup is a good decision. </p>\n\n<p>But, given multiple indications that this may not be a good choice for you, I would strongly suggest thinking twice about this decision after conferring with a lawyer about your individualized circumstances before going forward with this plan.</p>\n", "score": 6 } ]

[ "united-states", "immigration", "marriage", "family-law" ]

[ { "answer_id": 91513, "body": "<h2>Yes</h2>\n<p>The case you want to know about is <a href=\"https://en.wikipedia.org/wiki/Cohen_v._California\" rel=\"nofollow noreferrer\">Cohen v. California</a>: A young man was arrested for wearing a jacket with the words &quot;Fuck the Draft&quot; and SCOTUS decided, that that was First Amendment-protected speech and the arrest illegal.</p>\n<p>The phrase <strong>מנא מנא תקל ופרסין</strong> is in Akkadian or Aramaic language but Hebrew script (as opposed to the Akkadian Cuneiform) and can be transcribed as Mene Mene Tekel Upharsin. It is also known in German as &quot;Menetekel&quot; or in English as the &quot;Writing on the wall&quot;. It stems from the biblical episode of <a href=\"https://en.wikipedia.org/wiki/Belshazzar%27s_feast\" rel=\"nofollow noreferrer\">Belshazzar's feast</a>. Literally, the text would be read as &quot;counted, counted, weighed, distributed&quot;. Its meaning elaborated in <em>Daniel 5</em> is generally understood as &quot;Your days are numbered; Your days are numbered; You have been measured and found wanting; Your kingdom will fall and be divided&quot;. While stemming from religious texts, in the depicted situation it is more likely meant as political speech, and in that fashion indistinguishable from a <a href=\"https://law.stackexchange.com/q/78237/10334\">flag</a>.</p>\n<p>It also does not call for imminent lawless action - the so-called Brandenburg Test after <a href=\"https://en.wikipedia.org/wiki/Brandenburg_v._Ohio\" rel=\"nofollow noreferrer\">Brandenburg v Ohio</a> - and thus remains in the protected speech area. Remember, that <a href=\"https://law.stackexchange.com/q/90142/10334\">even preaching genocide can be First amendment protected</a>, as long as that line of imminent lawless action is not overstepped.</p>\n<p>As this phrase does neither, it is protected speech.</p>\n", "score": 7 } ]

[ "united-states", "is-x-legal", "first-amendment" ]

[ { "answer_id": 91510, "body": "<h3>You don't have to talk to the police.</h3>\n<p>All taking a lawyer with you will do is have someone to remind you not to talk to the police, and short your bank account a couple hundred dollars.</p>\n<p>Tell the detective you're busy. The detective saying you &quot;are not going to be arrested&quot; means absolutely nothing. When they show up to talk to you, don't go to the door unless they have a warrant.</p>\n", "score": 3 } ]

[ "criminal-law", "theft", "pennsylvania", "fifth-amendment" ]

[ { "answer_id": 91521, "body": "<p>Trademarks protect against consumer confusion. Ask yourself if a consumer seeing that image with the &quot;studio&quot; portion removed might think that the altered image represents the same company as the original image. Of course, the answer will be &quot;yes.&quot;</p>\n<p>But in the end it also depends on how the trademark is used. You've used the original image in the question; have you violated the trademark? No. Do you violate Tesco's trademark when you say &quot;I went shopping at Tesco&quot;? No. Do you violate their trademark when you sell food using the name &quot;Tesco&quot;? Yes.</p>\n<p>A distinctive graphic design such as this will also be protected by copyright, so you will also have to consider whether your intended use infringes copyright.</p>\n", "score": 4 } ]

[ "copyright", "united-kingdom", "intellectual-property", "trademark", "trade-name" ]

[ { "answer_id": 91500, "body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged &#39;england-and-wales&#39;\" aria-label=\"show questions tagged &#39;england-and-wales&#39;\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>The government grants <a href=\"https://www.businesscompanion.info/node/469/mid/1488\" rel=\"nofollow noreferrer\">limited rights of return</a> (thanks Jen), for which you are <strong>entitled</strong> to a cash or cash-like refund (e.g. reversal of a credit card charge as described below).</p>\n<p>The vendor has the option to go <em>above and beyond</em> that statutory minimum as a courtesy to the customer. In that non-compulsory zone, <a href=\"https://www.businesscompanion.info/node/469/mid/1488\" rel=\"nofollow noreferrer\">they have the liberty</a> to offer store scrip rather than a cash refund.</p>\n<p>Of course, any business can <em>try to cheat you</em>, and then you have to stick up for your rights by insisting or reporting to relevant authorities.</p>\n<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>If you buy <em>with a credit card</em>, <a href=\"https://blog.unibulmerchantservices.com/credit-card-rules-for-returns-refunds-and-exchanges-you-need-to-know/\" rel=\"nofollow noreferrer\">the rules and contractual obligations of the credit card companies</a> oblige the merchant to accept returns by doing a refund to the card. It's important to understand how this happens: the merchant isn't just picking an arbitrary amount of money and doing a new &quot;sale in reverse&quot;... they are identifying a specific past transaction that already happened, and modifying or reversing it. That is a system safeguard so they don't credit the wrong person or be tricked into a reversal on a transaction that never happened. That's why they want your receipt.</p>\n<p>On a cash transaction, it is sellers prerogative whether to issue cash or store credit. Issuing store scrip is a reasonable option to deter theft and fraud. For instance someone who wanted an item could get it for free, by buying the item, taking it home, returning the next day without the item, grab <em>another</em> identical item off the shelf and sneak over to the CS line and &quot;return&quot; it with yesterday's receipt. <strong>With cash sales, that would be completely untrackable, and the thief is gone</strong>. With credit card, they have your identity; with scrip they can &quot;flag&quot; the scrip in their system to either prevent its use and/or have a security officer detain you if you try to use it.</p>\n<p>For instance American home stores will cheerfully take re-saleable condition items back even without a receipt, but will issue a store voucher for the value rather than cash. That policy would be a disaster if they refunded cash. As it is, I find it rather convenient!</p>\n<p>So if you want the convenience of cash refunds, you can just use credit cards - gaining the feature at the expense of anonymity.</p>\n", "score": 5 } ]

[ "united-kingdom", "consumer-protection" ]

[ { "answer_id": 91416, "body": "<p>The Fifth Amendment protection relates to a repugnant act, that of forcing a person to testify against themselves, and it is not about ways of looking at &quot;information&quot;. The relevant (legally-ancient) distinction is between a general inquiry and an accusation. The courts have always had the power to make a general inquiry, but there have been limits on the ability of the courts to make accusations. It is a fundamental requirement of law that there must be an accuser, if there is to be a criminal proceeding. But is it also considered to be morally repugnant to force a person to accuse themselves.</p>\n<p>The difference lies not in the informational content in question, it is in what act – compelled self-accusation – is excluded from the legal system.</p>\n", "score": 28 }, { "answer_id": 91417, "body": "<p>The relevant language of the Fifth Amendment is:</p>\n<blockquote>\n<p>No person ... shall be compelled in any criminal case to be a witness against himself.</p>\n</blockquote>\n<p>This Fifth Amendment privilege &quot;bars the State only from compelling 'communications' or 'testimony'&quot; (<em>South Dakota v. Neville</em>, <a href=\"https://tile.loc.gov/storage-services/service/ll/usrep/usrep459/usrep459553/usrep459553.pdf\" rel=\"noreferrer\">459 U.S. 553</a>, 559 (1983), citing <em>Schmerber v. California</em>, 384 U.S. 757 (1966)). The Court has also acknowledged the trouble you're noting: &quot;the distinction between real or physical evidence, on the one hand, and communications or testimony, on the other, is not readily drawn in many cases&quot; (<em>Neville</em>, p. 561).</p>\n<p>The distinction though is based in the principle that &quot;no man is bound to accuse himself.&quot; It is a reaction against the practice of forcing people to affirm their own culpability in <a href=\"https://en.wikipedia.org/wiki/Star_Chamber\" rel=\"noreferrer\">Star Chamber</a> proceedings and ecclesiastical courts (<em>Constitution Annotated</em>, <a href=\"https://constitution.congress.gov/browse/essay/amdt5-4-1/ALDE_00000864/\" rel=\"noreferrer\">Amdt5.4.1</a>) It is an <em>exception</em> to the general common law principle that all relevant evidence can be compelled for production to the court, in furtherance of its truth-seeking function.¹</p>\n<p>For a comparative look, Canada makes the same distinction:</p>\n<blockquote>\n<p>Both the common law and the <em>Charter</em> draw a fundamental distinction between incriminating evidence and self-incriminating evidence: the former is evidence which tends to establish the accused's guilt, while the latter is evidence which tends to establish the accused's guilt by his own admission, or based upon his own communications. The s. 7 principle against self-incrimination that is fundamental to justice requires protection against the use of compelled evidence which tends to establish the accused's guilt on the basis of the latter grounds, but not the former.</p>\n<p><em>Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy)</em>, <a href=\"https://canlii.ca/t/1frk2#par28\" rel=\"noreferrer\">[1995] 2 S.C.R. 97 at para. 28</a>.</p>\n</blockquote>\n<hr />\n<p>^{1. This is a general common-law principle, but for language from the Canadian context: &quot;The truth-seeking function of the trial creates a starting premise that all relevant evidence is admissible.&quot; See <em>R. v. Grant</em>, <a href=\"https://canlii.ca/t/ggjsm#par18\" rel=\"noreferrer\">2015 SCC 9 at para. 18</a>.}</p>\n", "score": 27 }, { "answer_id": 91505, "body": "<p>The privilege against self-incrimination in the US 5th amendment isn't a right to not testify if you don't feel like it. It doesn't say &quot;a person may not be compelled to testify&quot; it says &quot;nor shall [a person] be compelled in any criminal case to be a witness against himself&quot;. It's not that the information in your head is privileged in the way that communication with a lawyer is. Rather the 5th amendment confers the right to not be <em>forced</em> to testify against yourself.</p>\n<p>The right isn't intended to protect against revealing information you don't want to reveal, but rather to protect against the government putting you in a position where you are legally compelled to give criminal evidence against yourself or else suffer some penalty for refusing to give the evidence (such as the penalties for perjury, or by having the refusal to testify itself taken as evidence of guilt).</p>\n<p>As such it isn't simply &quot;this information is in my head, therefore it's privileged and I don't have to give it to the state if I don't want to&quot;. There has to be a real danger that responding to a specific request would incriminate you:</p>\n<blockquote>\n<p>To be self-incriminating, the compelled answers must pose a “substantial and ‘real,’ and not merely a “trifling or imaginary hazard” of criminal prosecution.</p>\n<p>Source: <a href=\"https://www.law.cornell.edu/wex/fifth_amendment\" rel=\"noreferrer\">https://www.law.cornell.edu/wex/fifth_amendment</a></p>\n</blockquote>\n<p>A judge can overrule a claim of the privilege if it is clear that complying with the request cannot possibly self-incriminate. And if a witness has been granted immunity from prosecution for some criminal act, answering questions about that crime can no longer pose any danger of leading to criminal prosecution and thus they can no longer &quot;plead the 5th&quot; to those questions.</p>\n<p>Also, while the <em>contents</em> of pre-existing documents generally cannot be protected by the right against self-incrimination (because you weren't legally compelled to write those documents), it <em>is</em> possible to refuse to hand over documents when revealing the <em>existence</em> of the documents is itself giving the government new self-incriminating evidence:</p>\n<blockquote>\n<p>What the privilege protects against is the compulsion of testimonial disclosures. … A person may be compelled to produce specific documents even though they contain incriminating information. If, however, the existence of specific documents is not known to the government, and the act of production informs the government about the existence, custody, or authenticity of the documents, then the privilege is implicated.</p>\n<p>Source: <a href=\"https://constitution.findlaw.com/amendment5/annotation04.html#who\" rel=\"noreferrer\">https://constitution.findlaw.com/amendment5/annotation04.html#who</a></p>\n</blockquote>\n<p>Basically, it's not the information <em>itself</em> that is privileged, nor a distinction of what medium the information is stored in. It's the specific <strong>act</strong> of self-incrimination that is privileged, so that the government cannot compel you to do that.</p>\n", "score": 10 } ]

[ "united-states", "fifth-amendment" ]

[ { "answer_id": 91485, "body": "<p>I've never heard of a rule specifically addressing this in the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged &#39;united-states&#39;\" aria-label=\"show questions tagged &#39;united-states&#39;\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a>, but I expect most courts would disallow it.</p>\n<p>I suspect a court would believe that the note-taking would be a distraction to the witness, whose focus should be on listening to the questions and providing truthful answers. The note-taking may be perceived as a distraction from the testimony for others in the courtroom, as well.</p>\n<p>If I were examining the witness, I would probably be entitled to see what the notes say, dragging out the witness's examination. Then the witness would want to take notes about my questions about her notes, and I'd want to see those notes, and you can see how it can get out of control.</p>\n", "score": 8 }, { "answer_id": 91502, "body": "<p>By &quot;referring to notes&quot;, I don't believe that means notes that have been taken by the witness during the trial. In certain cases, the witness can refer to notes prepared ahead of time to <em>refresh their memory</em> about something. They can't simply read content directly from the notes, though, they have to have an &quot;independent recollection&quot; of the facts. &quot;Notes&quot; here can actually refer to more than just something the witness wrote for the purposes of the trial, it could also be a report, a photograph, or a physical item. As an example, in <a href=\"https://www.leagle.com/decision/1999570513se2d571570\" rel=\"nofollow noreferrer\">State v. Brown, 350 N.C. 193 (1999)</a> a witness saw a letter she had previously written, which refreshed her memory about certain statements she had made.</p>\n<p>If this is done during testimony, <a href=\"https://ncpro.sog.unc.edu/manual/705-08\" rel=\"nofollow noreferrer\">Rule 612</a> of the Federal Rules of Evidence enables the opposing party to inspect the notes in question, cross-examine the witness about the notes, and enter any relevant portions of the notes into evidence. That means you have to be careful about what notes you use because if you (for example) had <a href=\"https://www.wklaw.com/dont-bring-your-notes-to-the-witness-stand-or-the-prosecution-can-see-them/\" rel=\"nofollow noreferrer\">notes of a conversation between yourself and your attorney</a>, you would waive attorney-client privilege the moment you use them on the stand.</p>\n<p>From a practical standpoint, I'd imagine this makes it very difficult for a witness to take notes while on the stand. Opposing counsel will see you with notes, they'll demand they be turned over for inspection, and now you don't have anything to write on any more.</p>\n", "score": 1 } ]

[ "court", "witnesses", "any-jurisdiction" ]

[ { "answer_id": 91501, "body": "<p>They don't owe you a thing, and could ignore or lie to you.</p>\n<p>To file a lawsuit against you, they must <strong>Serve</strong> you. Read up on what legal service is - you probably will notice if it happens! (though things can get a little weird if you have a PMB or Registered Agent for your LLC etc - they can serve the PMB/Agent, who may fail to notify you!)</p>\n<p>You can also check court records every week or two, to see if a case has appeared.</p>\n<p>Now... who is your lawyer? If you have one and they know who your lawyer is, they're absolutely going to serve your lawyer; it would be negligent for them not to, and your lawyer will make them regret it. So it could be as simple as sending them a change of address: <em>Hi, I'm sending this note to everyone I've done business with in the past. FYI, my new address is X, my phone is Y, email is Z, and my attorney is A</em>.</p>\n", "score": 2 } ]

[ "criminal-law", "england-and-wales", "civil-law" ]

[ { "answer_id": 90433, "body": "<h2>there might be patents to the methodology used to get the AI to learn</h2>\n<p>A methodology can be patented, and thus limited in who may use this particular way.</p>\n<h2>The base code is copyrighted</h2>\n<p>The base code of the AI, which makes the computer evaluate different outcomes and test the inputs against its outcomes is copyrighted by the making company.</p>\n<h2>The pure product of AI is uncopyrightable and unpatentable</h2>\n<p>the US Copyright office declared that AI products do not have an author. <a href=\"https://fingfx.thomsonreuters.com/gfx/legaldocs/klpygnkyrpg/AI%20COPYRIGHT%20decision.pdf\" rel=\"nofollow noreferrer\">As such, AI-generated expression does not benefit from any copyright.</a></p>\n<p>Likewise, the USPTO has declined multiple <a href=\"https://www.brookings.edu/blog/techtank/2022/08/25/patents-and-ai-inventions-recent-court-rulings-and-broader-policy-questions/\" rel=\"nofollow noreferrer\">applications in which an AI was listed as the sole inventor</a>. <a href=\"https://www.federalregister.gov/documents/2023/02/14/2023-03066/request-for-comments-regarding-artificial-intelligence-and-inventorship\" rel=\"nofollow noreferrer\">Their current stance is, an AI can't be an inventor, if anything the human feeding the AI could be one.</a> This is based on a 2012 case, <a href=\"https://scholar.google.com/scholar_case?case=8123691441658588112\" rel=\"nofollow noreferrer\">in which the SCOTUS decided that an individual is always a human.</a></p>\n<p>As such, AI-generated weigts can <strong>not</strong> be copyrighted or patented.</p>\n<h2>The weights might be trade secrets</h2>\n<p>It's unclear if the weights are the product of a human maker using an AI as a tool, or a pure AI work. As such, their copyright status is unclear.</p>\n<p>However, they might be protected as <a href=\"https://www.wipo.int/tradesecrets/en/tradesecrets_faqs.html\" rel=\"nofollow noreferrer\">trade secrets</a>, and as such disclosure, acquisition and usage of them could be illegal. Trade secrets and their products are generally licensable.</p>\n", "score": 2 } ]

[ "intellectual-property", "computer", "artificial-intelligence" ]

[ { "answer_id": 91493, "body": "<h2><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged &#39;germany&#39;\" aria-label=\"show questions tagged &#39;germany&#39;\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a></h2>\n<p>As a driver, you are not permitted to do things that reasonably impact your ability to steer and react while driving. If it wouldn't be called out explicitly, then operating a phone would fall under this general provision. However, consuming any drink is not generally considered one of those acts... as long as you don't do so in a way that risks you losing control of the car. Any act that risks losing control would be negligent. For example, consumption of extra hot coffee from flimsy cups risks pouring hot coffee over your lap, and such has to be avoided. Similarly, using a bottle as a knob on the wheel is not allowed, because you could block the wheel and steer off the road.</p>\n<p>Now, in <em>general</em> the allowed BAC at the wheel is 0.5 promille. That's not too bad. Yet that limit is when you do not engage in any act that might be considered endangering traffic. If you do, the limit falls to 0.3. If you are generally a bad driver, or the method of how you hold the beer impacts your driving in such a way... you have to deal with the lower limit. If you still manage? all ok.</p>\n<p>But even if you don't break the 0.5/0.3 promille, and something happens, you are in for pain: the mere fact that you have consumed any alcohol can give you a partial fault for the accident.</p>\n<p>Also remember, if you're below 21 or have had your driving license for less than a year, you have a 0.0 limit anyway.</p>\n", "score": 1 } ]

[ "united-kingdom", "driving", "alcohol" ]

[ { "answer_id": 91435, "body": "<p>Despite the lengthy background, the only question seems to be:</p>\n<blockquote>\n<p>Can a police officer lie about a consequence of a traffic violation\nthey charge you with?</p>\n</blockquote>\n<p>As a matter of constitutional law in the United States, that answer is generally &quot;yes.&quot; States can impose more limitations if they like. Only a small minority of states actually do so.</p>\n<p>Incidentally, an attorney, such as a deputy district attorney, is not allowed to lie about the consequences of a traffic violation, or anything else (even in extreme circumstances like a hostage situation). This violates the rules of professional conduct applicable to all attorneys.</p>\n<p>This sounds like a classic &quot;driving while black&quot; situation and is probably involves unconstitutional discrimination by a government official, although proving that in an individual case is virtually impossible.</p>\n", "score": 4 }, { "answer_id": 91488, "body": "<h3>Police can lie to you</h3>\n<p>and</p>\n<h3>You can be arrested for many traffic offenses</h3>\n<p>It is well established that police have no duty to tell you the truth either intentionally or unintentionally.</p>\n<p>It is also well established that in most jurisdictions there are traffic offenses that you can be arrested for. The happens infrequently, but the option is there for the officer. Texas, for example, states that you may not be arrested only for speeding or for open container violations. Virginia is famous for arresting people for speeding more than 20 over or 85 regardless, which is defined in Virginia as a type of reckless driving. This may be different in your jurisdiction.</p>\n", "score": 1 } ]

[ "united-states", "police", "traffic" ]

[ { "answer_id": 91479, "body": "<p><a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged &#39;new-south-wales&#39;\" aria-label=\"show questions tagged &#39;new-south-wales&#39;\" rel=\"tag\" aria-labelledby=\"tag-new-south-wales-tooltip-container\">new-south-wales</a></p>\n<h2>Juries are governed by the <a href=\"https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1977-018#:%7E:text=An%20Act%20to%20amend%20and,the%20Supreme%20Court%20Act%201970.&amp;text=This%20Act%20may%20be%20cited%20as%20the%20Jury%20Act%201977.\" rel=\"nofollow noreferrer\">Jury Act</a> 1977</h2>\n<p>Part 7A deals with the discharge of jurors.</p>\n<p><a href=\"https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1977-018#sec.53A\" rel=\"nofollow noreferrer\">s53A</a> makes it mandatory for a judge to discharge a juror who:</p>\n<ul>\n<li>was mistakenly or irregularly empanelled,</li>\n<li>has become excluded from jury service,</li>\n<li>has engaged in misconduct in relation to the trial or coronial inquest.</li>\n</ul>\n<p><a href=\"https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1977-018#sec.53B\" rel=\"nofollow noreferrer\">s53B</a> gives the judge or coroner discretion to discharge a juror who:</p>\n<ul>\n<li>has become ill, infirm or incapacitated,</li>\n<li>may not be able to give impartial consideration because of their familiarity with the witnesses, parties, or legal representatives, or creates an apprehension of bias or a conflict of interest,</li>\n<li>refuses to take part in deliberations,</li>\n<li>for any other reason appears to be unable to act as a juror.</li>\n</ul>\n<p>Note that we are not talking about challenges by the parties themselves but only by dismissals from the bench.</p>\n<p>Beliefs held by a juror about video games, or the death penalty, or any other thing are not, of themselves, grounds for dismissing a juror. Jurors do, and are expected to, hold a wide variety of beliefs. They are also expected to, and mostly do, put those beliefs aside and vote on the evidence impartially and without bias.</p>\n<p>Only when &quot;it appears to the court or coroner (from the juror’s own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror’s familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason&quot; [s53B(b)] or &quot;it appears to the court or coroner that, for any other reason affecting the juror’s ability to perform the functions of a juror, the juror should not continue to act as a juror&quot; [s53B(d)] should the judge consider discharging them.</p>\n", "score": 2 }, { "answer_id": 91483, "body": "<p>The right to an impartial jury requires that both sides be given fair hearing by the jury and that the jury weigh all evidence before them when determining the verdict and the jurors should not use any preconceived notions. While an opinion in and of itself is not a grounds for dismissal, it can become grounds if the case touches on that aspect of a political opinion. In the case you are describing, it is likely that the 17 year old defendant was playing a video game prior to committing the crime. Whether or not you believe video games, you may be liable to aquitt because of a preconcieved biased against the game, when the game being played in question had no tangential relationship to the crime that was committed (I.E. If the defendant was playing Mario Cart and then went out and robbed a convivence store, which is a crime which has little relationship to any Mario Cart mechanics. The prosecutor may seek dismissal because, despite the game having no narrative similarities to the crime other than it was part of the timeline of the event, a belief that ALL video games increase violence is going to introduce a bias that shouldn't be there. &quot;Mario Cart made me do it&quot; is not a valid excuse for Armed Robbery.) But the reverse situation could happen. Suppose the defendant will be using his play time of Grand Theft Auto online as his alibi for why he couldn't possibly have committed an armed robbery at the time in question? Allowing someone on the jury who believes video games leads to violence would risk a juror who turns a blind eye to the fact that there are records of his activity in GTA that could prove he didn't do because GTA is a game that glorifies violent criminal behavior and would be biased against the defendant, who has never committed an actual crime in his life.</p>\n<p>With respect to your question on the death penalty, it is true that those people who have a moral objection to the death penalty are excused because the fear is that justice will not be served because a juror will hold out to get the defendant acquitted and deny the use of the punishment because it is a possible outcome of a guilty verdict. They also keep an eye out for potential jurors who are in favor of expanding the death penalty as well, as they might be too eager to convict.</p>\n<p>Ignoring evidence of guilt because you disagree with the level of punishment the defendant is facing is just as bad as ignoring evidence of innocence because of any other preconceived opinion you have on the situation. What Justice is done by the release of a person who all evidence says is guilty of horrible crimes... because one person believed the potential punishment was too harsh.</p>\n<p>Incidentally, Capital punishment cases are unique in the U.S. Legal system in that the Jury actually has some weight in the sentancing. Unlike non-capitol offenses, where the judge is the sole arbiter of sentancing those found guilty, it often falls to the jury to decide if first if the defendant is guilty of a crime for which the Death Penalty is authorized, and then if that person's crimes rise to death penalty levels. In U.S. Law, it is unconstitutional for any crime to have a mandatory death penalty. Those that do usually have a list of aggravating circumstances that will allow for the death penalty to be used. For these cases, the jury must first determine if the accused is guilty of a crime that could carry a capitol offense, then must determine if the aggravating factors in that crime warrant the use of the death penalty (was the prosecution able to prove beyond a shadow of a doubt that the aggravating circumstances occurred.) and make a recommendation to the judge of capital punishment based on that... the judge has the ultimate determination during the sentencing phase of the trial, by which point the jury is dismissed.</p>\n", "score": 2 } ]

[ "united-states", "jury" ]

[ { "answer_id": 91408, "body": "<p>State crimes must be prosecuted by state prosecutors in state courts. Federal crimes must be prosecuted by federal prosecutors in federal courts. <a href=\"https://law.stackexchange.com/a/91409/46948\">hszmv's answer describes</a> the DOJ's policy where there is overlap.</p>\n<p>In <a href=\"https://en.wikipedia.org/wiki/Indian_country\" rel=\"nofollow noreferrer\">Indian country</a> (this is a term of art in U.S. law), jurisdiction is <a href=\"https://www.justice.gov/ko/node/1375341\" rel=\"nofollow noreferrer\">much more complicated</a>. In brief, there is often exclusive tribal jurisdiction when the alleged offence has an Indian accused and Indian victim. For a listed set of major crimes, jurisdiction is exclusively federal (except in states where that jurisdiction has been granted to the states), even if incorporating as federal law the state's definitions of particular crimes.</p>\n", "score": 4 }, { "answer_id": 91460, "body": "<p><strong>Criminal Cases</strong></p>\n<p>In criminal cases, federal prosecutors decide which cases to prosecute under federal law, while state prosecutors decide independently which cases to prosecute under state law. Sometimes there is coordination between the two, but there doesn't have to be. Under the dual sovereignty doctrine, the federal government and the state government can both prosecute and punish someone for the same crime without regard to each other's actions.</p>\n<p>Federal crimes are always prosecuted in federal courts by federal prosecutors. State crimes are always prosecuted in state courts by state prosecutors (or by private citizens in rare instances).</p>\n<p>About 2% of all criminal cases (depending upon how you measure it - by charges brought, by number of criminal defendants, by trial conducted, by time spent incarcerated, etc.) are brought in federal court. Federal court criminal dockets are highly distinct from the overall mix of crimes prosecuted in the U.S.</p>\n<p>Federal courts mostly handle immigration offenses (over which federal courts have exclusive jurisdiction since states are forbidden from enacting immigration crimes under the U.S. Constitution), white collar crimes, regulatory offenses (e.g. violations of federal environmental and security and tax crimes), crimes with high mandatory minimum federal sentences (mostly related to drugs and possession of firearms by felons), terrorism, bank robbery, and serious ordinary crimes arising on Indian Reservations.</p>\n<p>Less serious crimes committed on Indian reservations involving Indian tribe members (basically misdemeanors and petty offenses and punitive civil violations like traffic tickets) are enforced in the tribal courts of the relevant Indian tribe, rather than in state courts or in federal courts. The <a href=\"https://law.stackexchange.com/a/91408/9517\">answer by Jen</a> to this question discusses this and links to discussions of when tribal courts have jurisdiction which is a complicated subject.</p>\n<p>Notably, the death penalty can be imposed for violation of a federal crime by a federal court even if the crime is committed in a state that has no state death penalty.</p>\n<p>State courts handle all other crimes. In particular, the state courts handle the overwhelming majority of serious violent crimes committed outside Indian Reservations (much more than 98% of such cases).</p>\n<p>A side consequence of this reality is that federal prisons are much less scary places to be incarcerated than state prisons, because they have so many fewer people convicted of serious violent crimes.</p>\n<p>One exception to the strong general rule that state courts exclusively handle state criminal cases, is that after all direct appeals are exhausted in a state criminal cases, the convicted defendant can appeal his or her case to the U.S. Supreme Court if the defendant alleges that the U.S. Constitution or a federal law was violated in connection with the conviction, and in habeas corpus review in federal courts to collaterally attack such a conviction (e.g. for reasons not discernible from the trial court record) after all state court appeals and collateral attacks have been exhausted.</p>\n<p>The D.C. courts of the District of Columbia, and territorial courts in other U.S. territories including Puerto Rico, function essentially like state courts for most purposes, although there are some subtle differences legally between them and state courts (e.g. the Bill of Rights applies directly and not merely via the 14th Amendment in these courts because they are part of the federal government).</p>\n<p><em>Military Justice and Military Tribunals</em></p>\n<p>As an aside, there is also a whole separate justice system under the Uniform Code of Military Justice that mostly applies to quasi-criminal offenses committed by soldiers (a small number of cases involving civilians on military bases or traveling with military units are also handled in these forums). This system is also a federal one but is not connected except at the U.S. Supreme Court level at the very top, to the civilian federal criminal justice system. It even has its own jails and prisons.</p>\n<p>Finally, there is also a U.S. system of anti-terrorism military tribunals created after 9-11 and based at a U.S. military base in Guantanamo Bay, Cuba. This was basically a failed system and only dozens of inmates with cases a couple of decades old continue to be processed in this system with new case filings in this system having ended long ago. No or almost no cases there have been resolved with final trials on the merits convicted defendants of the charges against them.</p>\n<p><strong>Civil Cases</strong></p>\n<p>In civil cases, the person bringing the lawsuit decides whether to bring it in the federal courts or the state courts in the first instance.</p>\n<p>But some cases (e.g. copyright and patent enforcement, bankruptcy, cases between U.S. states, and cases involving diplomats) have to be brought in the federal courts, while other cases (domestic relations, probate, and junk fax cases) must be brought in state courts.</p>\n<p>The junk fax law is weird since it is the only federal law of which I am aware that authorizes private lawsuits that can be brought only in state courts.</p>\n<p>Federal courts have jurisdiction (usually concurrent with state courts except as noted above) over cases with a U.S. government party, over cases with a party who is a foreign country or diplomat from that country, over cases between U.S. states, over cases in which the claims in the original complaint arise under federal law including treaties to which the U.S. is a party (federal law defenses and federal law counterclaims don't give rise to federal court jurisdiction), over real estate ownership disputes arising under the laws of more than one state. Note that with the few exceptions noted above (e.g. intellectual property cases) cases arising under federal law can be tried in state courts if none of the defendants remove the case to federal court.</p>\n<p>Federal courts can also consider cases where there is a question of state law over which state courts don't have exclusive jurisdiction (e.g. probate and domestic relations) if it is related in some way to a claim above over which the federal courts do have jurisdiction (this is called pendent and supplemental jurisdiction).</p>\n<p>Federal courts in civil cases also have jurisdictions over &quot;diversity cases&quot; arising under state law where the amount in controversy exceeds $75,000, in large class action lawsuits, and in interpleader lawsuits (i.e. suits between parties from different states with competing claims to own property that the person who possesses the property have asked a court to resolve for them).</p>\n<p>Unless a case brought in state court is removed by a defendant to federal court in a timely fashion, it stays in state court.</p>\n<p>Federal court civil cases are less skewed relative to the state courts in the mix of civil cases that they handle than in the sphere of criminal cases. But civil lawsuits by federal government plaintiffs enforcing regulatory laws and federal government legal rights (notably actions to collect student loans administered by the U.S. Department of Education), bankruptcy cases, cases against government officials alleging civil rights violations, copyright and patent infringement cases, and large class actions make up a significant part of the civil docket in federal courts.</p>\n<p>Another very important subset of federal civil cases (numerically) are habeas corpus petitions and other petitions by prison inmates. The federal courts have jurisdiction over collateral attacks on state court criminal convictions after all state court remedies to attack the convictions are exhausted, and over civil rights lawsuits against prison officials.</p>\n<p>The vast majority of federal habeas corpus petitions and prisoner's petitions are dismissed summarily on the recommendations of federal magistrate judges (deputy federal judges appointed by federal judges) to federal district court judges. But the cases that survive are a major relief valve in death penalty cases, other very long sentence cases in state court whose correctness is disputed (especially in states with dubious quality state criminal justice systems). They also regulate the worst of the worst state prison mistreatment situations. Ultimately, close to half of U.S. death sentences are overturned in some phase of appeal or collateral attack on the sentence, often in federal court habeas corpus petitions.</p>\n", "score": 3 }, { "answer_id": 91409, "body": "<p>The U.S. Department of Justice (DOJ) has adopted what is called the <strong>Petite Policy</strong> which holds that the Federal Government will presume that any state prosecution of facts applicable to federal charges vindicates the Federal Justice system in those facts, even if the state prosecution results in an acquittal.</p>\n<p>The Petite Policy is not law but a self-imposed DOJ Policy and as such, it is invoking it's right to Prosecutorial Discretion in cases to justify the stance. Additionally, the DOJ has a list of criteria they must meet to prosecute at the Federal Level an act that was prosecuted at the state level. Typically these deal with laws that the state can not prosecute but the Feds can (For example, a person who entered the country illegally and kills a county sheriff deputy in the process will be tried for murder by the state, but the state is not empowered to charge him for any immigration offenses, which would mean the DOJ would file charges for that portion of the defendant's crime, but would be satisfied with the outcome of the state's murder trial for the charges related to the murder.). Criteria are the existence of corruption or incompetence in the State's prosecution, or Jury Nullification in clear violation of evidence or the law <a href=\"https://en.wikipedia.org/wiki/Double_Jeopardy_Clause#Petite_policy\" rel=\"nofollow noreferrer\">Source</a>.</p>\n<p>Edit: In some cases, the Feds will have exclusive jurisdiction, such as crimes that are interstate in nature, crimes related to the mail, crimes that take place in U.S. territory but not within the jurisdiction of state, territorial government, or district jurisdiction (i.e. Territorial Waters), crimes that occur on Federal property and immigration crimes. A state cannot prosecute these crimes as they do not have the power to do so.</p>\n<p>While the U.S. does have a constitutional ban on Double Jeopardy, this only applies to the courts of a jurisdiction. If you try someone at the state level and fail to secure a conviction, legally, there is no law preventing the Federal government from trying the same person for the same crimes other than their self-imposed policy. It should also be pointed out that the Petite Policy is also a cost saving measure that will prevent duplication of work (why try someone who someone else already found guilty of the same crime.). In addition to the states, all 5 U.S. Permanently Inhabited Territories, The District of Columbia, and all Tribal Governments (found on Native American Reservations) are considered separately sovereign from the Federal Government, and thus may conduct trials.</p>\n", "score": 2 } ]

[ "united-states", "federal-courts", "judiciary" ]

[ { "answer_id": 91473, "body": "<p>The state legislature does get to say how the governmental institutions of higher education are run, so they can stipulate what is in the contract. There is no aspect of the current contract which guarantees future tenure, and it is standard that the rules of tenure can change and untenured faculty must follow whatever the current rule is at the time one is reviewed for tenure. That would include the elimination of tenure. The university rules say that the university rules can be changed (and describe how those changes are made). However, university rules are subordinate to the statutes governing the universities, and you can't sue the legislature for breach of contract. The law, <a href=\"https://capitol.texas.gov/tlodocs/88R/billtext/pdf/SB00018I.pdf\" rel=\"nofollow noreferrer\">as proposed</a>, specifically limits the duration of any employment contract to 3 years.</p>\n<p>Incidentally, there is no corresponding House bill, and the deadline for filing such a bill in this session has passed, so this specific piece of legislation will not be enacted.</p>\n", "score": 2 } ]

[ "contract-law", "texas", "state-university" ]

[ { "answer_id": 91433, "body": "<p>The <a href=\"https://www.texasbar.com/AM/Template.cfm?Section=Home&amp;Template=/CM/ContentDisplay.cfm&amp;ContentID=27271\" rel=\"nofollow noreferrer\">Texas Disciplinary Rules of Professional Conduct</a> govern the issue of the grounds upon which lawyers admitted to practice in Texas may receive professional discipline such as censures, suspension from practice, or disbarment. The appropriate severity of professional discipline for particular kinds of conduct is largely a matter of case law and separate law provides for the procedural framework for administering the Rules of Professional Conduct. The Rules themselves specifically disavow the task of decided what kind if professional discipline is appropriate for any particular kind of conduct of an attorney.</p>\n<p>Personal ethics and behavior are governed primarily by rules 8.02 (defamatory speech about judges and other legal officials), and 8.04 (various kinds of misconduct including personal misconduct), although there are some stray bits that can come up in connection with other rules.</p>\n<p>Rule 1.08 involves improper conduct in transactions with clients that do not pertain to the matter in which the client is represented (e.g. unfair business deals with clients). Texas is among a minority of states that does not automatically treat having sex with client that commences only after the attorney-client relationship is formed as a violation of the Rules of Professional Conduct.</p>\n<p>Rule 8.04 is sometimes called the &quot;officer and a gentleman&quot; clause of attorney professional ethics after an analogous provision, <a href=\"https://www.armfor.uscourts.gov/digest/IIIA59.htm\" rel=\"nofollow noreferrer\">Article 113</a>, of the Uniform Code of Military Justice that applies to members of the United States armed forces. It is a residual misconduct provision that covers lots of misconduct in a lawyer's personal affairs that isn't otherwise regulated by the Rules of Professional Conduct.</p>\n<p>Rule 8,04 and its official comments are as follows:</p>\n<blockquote>\n<p>Rule 8.04. Misconduct</p>\n<p>(a) A lawyer shall not:</p>\n<p>(1) violate these rules, knowingly assist or induce another to do so,\nor do so through the acts of another, whether or not the violation\noccurred in the course of a client-lawyer relationship;</p>\n<p>(2) commit a serious crime or commit any other criminal act that\nreflects adversely on the lawyers honesty, trustworthiness or fitness\nas a lawyer in other respects;</p>\n<p>(3) engage in conduct involving dishonesty, fraud, deceit or\nmisrepresentation;</p>\n<p>(4) engage in conduct constituting obstruction of justice;</p>\n<p>(5) state or imply an ability to influence improperly a government\nagency or official;</p>\n<p>(6) knowingly assist a judge or judicial officer in conduct that is a\nviolation of applicable rules of judicial conduct or other law;</p>\n<p>(7) violate any disciplinary or disability order or judgment;</p>\n<p>(8) fail to timely furnish to the Chief Disciplinary Counsels office\nor a district grievance committee a response or other information as\nrequired by the Texas Rules of Disciplinary Procedure, unless he or\nshe in good faith timely asserts a privilege or other legal ground for\nfailure to do so;</p>\n<p>(9) engage in conduct that constitutes barratry as defined by the law\nof this state;</p>\n<p>(10) fail to comply with section 13.01 of the Texas Rules of\nDisciplinary Procedure relating to notification of an attorneys\ncessation of practice;</p>\n<p>(11) engage in the practice of law when the lawyer is on inactive\nstatus, except as permitted by section 81.053 of the Government Code\nand Article XIII of the State Bar Rules, or when the lawyers right to\npractice has been suspended or terminated, including, but not limited\nto, situations where a lawyer’s right to practice has been\nadministratively suspended for failure to timely pay required fees or\nassessments or for failure to comply with Article XII of the State Bar\nRules relating to Mandatory Continuing Legal Education; or</p>\n<p>(12) violate any other laws of this state relating to the professional\nconduct of lawyers and to the practice of law.</p>\n<p>(b) As used in subsection (a)(2) of this Rule, “serious crime” means\nbarratry; any felony involving moral turpitude; any misdemeanor\ninvolving theft, embezzlement, or fraudulent or reckless\nmisappropriation of money or other property; or any attempt,\nconspiracy, or solicitation of another to commit any of the foregoing\ncrimes.</p>\n<p>Comment:</p>\n<ol>\n<li><p>There are four principal sources of professional obligations for lawyers in Texas: these rules, the State Bar Act, the State Bar Rules,\nand the Texas Rules of Disciplinary Procedure (TRDP). All lawyers are\npresumed to know the requirements of these sources. Rule 8.04(a)(1)\nprovides a partial list of conduct that will subject a lawyer to\ndiscipline.</p>\n</li>\n<li><p>Many kinds of illegal conduct reflect adversely on fitness to practice law. However, some kinds of offenses carry no such\nimplication. Traditionally in this state, the distinction has been\ndrawn in terms of those crimes subjecting a lawyer to compulsory\ndiscipline, criminal acts relevant to a lawyer’s fitness for the\npractice of law, and other offenses. Crimes subject to compulsory\ndiscipline are governed by TRDP, Part VIII. In addition, although a\nlawyer is personally answerable to the entire criminal law, a lawyer\nshould be professionally answerable only for criminal acts that\nindicate a lack of those characteristics relevant to the lawyer’s\nfitness for the practice of law. A pattern of repeated criminal acts,\neven ones of minor significance when considered separately, can\nindicate indifference to legal obligations that legitimately could\ncall a lawyer’s overall fitness to practice into question. See TRDP,\nPart VIII; Rule 8.04(a)(2).</p>\n</li>\n<li><p>A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief, openly asserted, that no valid obligation\nexists. The provisions of Rule 1.02(c) concerning a good faith\nchallenge to the validity, scope, meaning or application of the law\napply to challenges to legal regulation of the practice of law.</p>\n</li>\n<li><p>Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can\nsuggest an inability to fulfill the professional role of attorney. The\nsame is true of abuse of positions of private trust.</p>\n</li>\n</ol>\n</blockquote>\n<p>With respect to the portion of the question asking:</p>\n<blockquote>\n<p>What personal kinds of personal misconduct might result in such\npenalties?</p>\n</blockquote>\n<p>Some of the most serious violations of the rules that are likely to lead to disbarment include misappropriation of client property, abandonment of a legal practice with active clients, revealing highly prejudicial client confidences with no color of justification for doing so, committing a crime involving fraud or a felony, or failure to cooperate with a disciplinary investigation.</p>\n<p>Of those, committing of a crime involving fraud or a felony would be the one most likely to result in disbarment that involves <em>personal conduct</em>, as opposed to professional conduct. Other kinds of personal conduct might result in a lesser sanction, however, as noted in Rule 8.4. Of course, it isn't all that hard to imagine some circumstance &quot;involving dishonesty, fraud, deceit or misrepresentation&quot; (think &quot;<a href=\"https://en.wikipedia.org/wiki/George_Santos\" rel=\"nofollow noreferrer\">George Santos</a>&quot; absent any criminal conduct) that isn't strictly speaking a crime, or &quot;conduct constituting obstruction of justice&quot; in a matter unrelated to client matters (e.g. obstructing an investigation of a family member of the lawyer in connection with an academic institution's investigation) that could rise to this level as well.</p>\n<p>But, again, the matching of punishment to particular conduct is rooted in case law. Also, a pattern of various kinds of misconduct or repeat offenses are often treatment more seriously than a single instance of misconduct by a first offender would be in isolation.</p>\n<p>Incidentally, every U.S. jurisdiction has a set of Rules of Professional Conduct with the same numbering system, although the substantive content of different states' rules with the same number is not always the same.</p>\n<p>So, for example, Rule 8.4 covers the same subject-matter in every U.S. state, the District of Columbia, Puerto Rico, and every other U.S. territory, even though there may be important substantive differences between the versions of Rule 8.4 adopted in different states.</p>\n", "score": 18 }, { "answer_id": 91431, "body": "<p>All state bar associations have written ethical standards - personal and professional - for any attorney who has been admitted to practice, as well as disciplinary processes for enforcing those standards.</p>\n<p>As for <strong>personal</strong> behavior, in Texas, the <a href=\"https://www.texasbar.com/AM/Template.cfm?Section=Home&ContentID=27271&Template=/CM/ContentDisplay.cfm\" rel=\"nofollow noreferrer\">Texas Disciplinary Rules of Professional Conduct (pdf)</a> state that (my bold)</p>\n<blockquote>\n<ol start=\"4\">\n<li>A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business\nand <strong>personal</strong> affairs...</li>\n</ol>\n</blockquote>\n<p>and</p>\n<blockquote>\n<ol start=\"9\">\n<li>Each lawyer's <strong>own conscience</strong> is the touchstone against which to test the extent to which his actions may rise above the disciplinary\nstandards prescribed by these rules. The desire for the respect and\nconfidence of the members of the profession and of the society which\nit serves provides the lawyer the incentive to attain the highest\npossible degree of ethical conduct. The possible loss of that respect\nand confidence is the ultimate sanction.</li>\n</ol>\n</blockquote>\n<p>As well as the extensive <strong>Rule 8.04. Misconduct</strong> as pointed out by ohwilleke in his answer.</p>\n<p>Ideally, in the interest of their profession, attorneys will police themselves. Any personal activity by an attorney that is clearly illegal (theft, DUI, etc.) is certainly an ethical problem under these rules; but behavior that is not clearly illegal but is possibly or clearly unethical (boorish behavior, money and billing issues, etc.) can also be a problem for the attorney.</p>\n<p>The &quot;bar&quot; for disciplinary action and disbarment can be high, though. Many disciplinary committees are composed of attorneys themselves, and sometimes the committees can shy away from disciplining their own.</p>\n<p>In Texas, members of the public can file a complaint with the <a href=\"https://www.texasbar.com/AM/Template.cfm?Section=cdrr&Template=/cdrr/home.cfm\" rel=\"nofollow noreferrer\">Committee on Disciplinary Rules and Referenda</a> and can watch <a href=\"https://pbvideo.vids.io/videos/7c9bdeb31d1ce3c3f4/cdc-how-to-file-a-grievance\" rel=\"nofollow noreferrer\">How to File a Grievance</a>.</p>\n<p>In my own experience, simply threatening to file an ethics complaint against a city attorney for a very clear and ongoing ethical violation very quickly fixed the ethical problem.</p>\n", "score": 11 } ]

[ "united-states", "texas", "lawyer", "misconduct" ]

[ { "answer_id": 77856, "body": "<p>You agreed to terms of use when you started using Mojang, posted at <a href=\"https://www.minecraft.net/en-us/terms\" rel=\"noreferrer\">https://www.minecraft.net/en-us/terms</a> and including:</p>\n<blockquote>\n<p>We may change these Account Terms from time to time, if we have reason\nto. For example, there might be changes to our games, our practices,\nor our legal obligations. We'll inform you of the change before it\ntakes effect, either by posting a notice on our Website or some other\nreasonable way. If you use the Website or your account after the\nchange, that means you agree to the changes. If you do not agree to\nthe changes, stop using the Website. The changes will apply to your\nuse of the Website when you next use it.</p>\n</blockquote>\n<p>That means Microsoft and Mojang can make a decisions like moving/merging your account without asking your permission. Website and product Terms of Service agreements are legally binding contracts, and you agreed to them when you started using their services.</p>\n<p>And refunds are part of the terms:</p>\n<blockquote>\n<p>RETURNS, REFUNDS AND CANCELLATION\nYou or we may cancel your Mojang Account at any time or access to\nMinecraft.net, Mojang.com or any Mojang game titles using a Microsoft\nAccount. When your account terminates or access is terminated, your rights\nunder these Account Terms terminate.</p>\n</blockquote>\n<p>They can cancel your account at any time and not give you a refund.</p>\n<blockquote>\n<p><em>Can I force them to issue a refund?</em></p>\n</blockquote>\n<p>You can attempt to make your case in court, but a) you agreed to the contract, and 2) Microsoft has more money for lawyers than you do.</p>\n", "score": 7 }, { "answer_id": 77857, "body": "<p>It depends on your contract. <a href=\"https://www.minecraft.net/en-us/terms\" rel=\"nofollow noreferrer\">Here is the contract</a> that I would have if I signed up right now. First, nothing in the contract indicates that you can remain MS-Free, indeed they say</p>\n<blockquote>\n<p>Note that some players access mojang.com and minecraft.net using a\nMicrosoft Account. Terms of use with a Microsoft Account can be found\nhere. Some countries may have restrictions on who and how a Microsoft\nAccount can provision an Xbox Live Profile</p>\n</blockquote>\n<p>The section on refunds says &quot;If you can't use a game or a product because it doesn't work, let us know and we'll try to help you out&quot;, which is not a promise to give a refund, so they do not offer refunds. They say &quot;We <em>might</em> also cancel or suspend a transaction if there has been an error&quot;, which is an option and not a commitment. They also say</p>\n<blockquote>\n<p>We may change these Account Terms from time to time, if we have reason\nto. For example, there might be changes to our games, our practices,\nor our legal obligations. We'll inform you of the change before it\ntakes effect, either by posting a notice on our Website or some other\nreasonable way. If you use the Website or your account after the\nchange, that means you agree to the changes. If you do not agree to\nthe changes, stop using the Website. The changes will apply to your\nuse of the Website when you next use it.</p>\n</blockquote>\n<p>Hence the prospects for a refund based on them migrating to MS is extremely slim, at least give that version of the contract.</p>\n", "score": 3 }, { "answer_id": 80554, "body": "<p>Further to @user6726's answer, I figured I should thrown in a <a href=\"https://web.archive.org/web/20101221093644/http://www.minecraft.net/copyright.jsp\" rel=\"nofollow noreferrer\">link to the original &quot;contract&quot;</a> (to be specific, this is dated post-20/dec/2010 (as close as I could find) since that's when it went beta, and the beta is when most ppl bought minecraft. You can find an earlier version for the alpha if you got back in time.</p>\n<p>Of note, nothing about that (or anywhere else I could find on the site) mentions anything about selling the &quot;game as a service&quot; or anything like that, and most definitely no mention of reserving the right to alter the terms in any way (though it <em>does</em> mention they <em><strong>unreserve</strong></em> the right to make an EULA later on). It quite clearly says you buy the game imo.</p>\n<p>The earliest version of that page does however seem to mention something along the lines that you only bought the rights for up-to-and-including the final version? And the linked version that you buy the current state of the game, and that future updates are a bonus? (with a note about how it's so they reserve the right to abandon the software)</p>\n", "score": 2 } ]

[ "software" ]

[ { "answer_id": 91464, "body": "<h2>Broadly speaking no crime was committed.</h2>\n<hr />\n<p>I don't know if harassments is a crime in New Zealand. If it is, then he committed it.</p>\n<p>Being a creepy pervert to people above the age of consent is not a crime. As long as he didn't expose himself. (sadly).</p>\n<p>The young girl in question was 16 which is the age of consent in New Zealand, and it seems like the guy didn't press further when rejected, and was rather open about his intentions. So I would say it would be hard to prove that he had intentions to kidnap the girl.</p>\n<h3>That being said</h3>\n<p>I think this individual needs help. And a warning from an officer about what is/isn't acceptable behavior could prevent this individual from doing somethin bad. This is called proactive law enforcement. As knowing that the law has their eye on you can curb bad behavior.</p>\n<h3>On what you are really asking</h3>\n<blockquote>\n<p>This question is basically about whether it was just to presume that the man indeed had criminal intention -- Greendrake</p>\n</blockquote>\n<p>I think you are confused about something... the police wanting to speak to you in no way implies that they presume that you have committed a crime.</p>\n<p>You do not have have committed a crime to be a person of interest to the police. The police are allowed to look for people who committed a crime, were a witness to a crime, or just need a little heart to heart talk to remind them of the straight and narrow way.</p>\n<p>To put it another way... The police wanting to speak to someone <strong>does not mean that they think the person has committed a crime</strong>.</p>\n<h3>What do I think of this incident?</h3>\n<p>The polices response, is good. Exactly what they should do. I would hope that the police would try to find an older individual who is driving around town and asking inappropriate questions/making what sounds like sexual suggestions to young teenage girls... Regardless of said teenage girls being over the age of &quot;consent&quot;. Sounds like this individual is a bit of a pedophile... And I do not use that term lightly. Frankly, I don't think that someone should behave that way any lady regardless of age, manner of dress, etc... And hope to live in a place/time where crime is low enough that the police can address that sort of harassment.</p>\n<p>I would not want such an individual driving around in my neighborhood.</p>\n", "score": 1 }, { "answer_id": 36005, "body": "<blockquote>\n <p>Were there any laws broken?</p>\n</blockquote>\n\n<p>That will be a matter for the judge and the jury.</p>\n\n<p>However, in the total context, there are certainly grounds for charges to be laid:</p>\n\n<blockquote>\n <p><strong><a href=\"http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329775.html\" rel=\"nofollow noreferrer\">209 Kidnapping</a></strong></p>\n \n <p>Every one is liable to imprisonment for a term not exceeding 14 years who unlawfully takes away or detains a person without his or her consent or with his or her consent obtained by fraud or duress,—</p>\n \n <p>(a) with intent to hold him or her for ransom or to service; or</p>\n \n <p>(b) with intent to cause him or her to be confined or imprisoned; or</p>\n \n <p>(c) with intent to cause him or her to be sent or taken out of New Zealand.</p>\n</blockquote>\n\n<p>and</p>\n\n<blockquote>\n <p><strong><a href=\"http://www.legislation.govt.nz/act/public/1961/0043/137.0/DLM328517.html\" rel=\"nofollow noreferrer\">72 Attempts</a></strong></p>\n \n <p>(1)\n Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.</p>\n \n <p>(2)\n The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.</p>\n \n <p>(3)\n An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.</p>\n</blockquote>\n\n<p>Offering someone a lift is not a crime. Offering someone a lift after asking them \"inappropriate questions\" may very well be.</p>\n", "score": 0 } ]

[ "minor", "consent", "new-zealand" ]

[ { "answer_id": 91458, "body": "<p>A person who impounds your vehicle has a duty to keep the vehicle secure until it is released, so you might be able to sue the operator of the lot for damages. An exception would be if the lot is actually operated by the government. Under the doctrine of sovereign immunity, you can't sue the government for messing things up, unless they have passed a law allowing themselves to be sued, which is unlikely. So it depends on who exactly had the vehicle, and in what jurisdiction. Your lawyer could tell you whether you have any recourse. You might be able to take advantange <a href=\"https://casetext.com/case/baker-v-city-of-mckinney\" rel=\"nofollow noreferrer\">Baker v. City of McKinney</a>, which made a federal case out of police property destruction, via the Takings Clause.</p>\n", "score": 3 } ]

[ "california", "police", "theft", "vehicle", "custody" ]

[ { "answer_id": 91457, "body": "<p>This is going to depend on whether those services act as independent controllers, or as your data processors.</p>\n<p>If they are separate controllers, then you need a legal basis for sharing your user's personal data with them, which happens e.g. by loading content from their services. This legal basis will typically be consent, and will typically be implemented in a click-to-load fashion, where the functionality initially has a placeholder that asks for consent, and is later replaced with the embedded content if consent is given. You are not responsible for the independent controller's privacy practices, though. You are not the data controller for the services' logfiles.</p>\n<p>If they are your data processors, then things are very different. You are not sharing your users personal data with another service, you are processing personal data under your authority, and have merely outsourced some aspects of these activities. If a data processor maintains logfiles, these are your logfiles that they just maintain on your behalf. You would be fully responsible for them, including, if appropriate, by facilitating the exercise of data subject rights like access or erasure.</p>\n<p>Since you cannot delegate responsibility for compliance to your data processors, you should only engage data processors where you are confident that using their services allows you to be fully GDPR-compliant. Before integrating their services, you might evaluate what data will actually be processed, whether this is necessary for your purposes, how you can configure the data processing activities, and how you can fulfil data subject rights with regards to these processing activities. For example, a service provider might offer a data protection dashboard where you can export or delete user data, if that service provider wants to make it easy to use their services in a GDPR-compliant manner.</p>\n<p>Even if engaging the service as a data processor, you will need a legal basis for the actual processing activity. This might be consent (opt-in), or a different legal basis like a legitimate interest, in which case an opt-out may be required. When consent is revoked or a legitimate interest is objected to, past processing activities remain lawful. Whether past data will have to be deleted depends on context.</p>\n<p>Whether or not an &quot;account&quot; was created on your backend is a red herring. If you can identify the data subject's information on the backend, they can exercise their data subject rights. This is possible without an account e.g. if pseudonymous client IDs are used. However, you are not required to keep identifying data just for GDPR purposes (see Art 11). If it is not possible for you to locate the data subject's records, then the data subject rights like access and erasure don't apply.</p>\n<p>Personal tip for Google services: Google offers a wide variety of services under very different terms. You will have to investigate those services on a case by case basis. For some such as Maps, Google will be the data controller. For other such as Crashlytics, Google will act as a processor. But as of 2023, Google does not guarantee for most of its services that personal data will only be processed in the EU or in countries with an adequate level of data protection. This can make it extremely tricky (or outright impossible) to use their services in a GDPR-compliant manner. Sometimes the use of such possibly-noncompliant services can still be a valid business decision, but the safer approach would be to avoid Google services whenever possible. Crashlytics is closely related to the Analytics product, for which some European data protection authorities have explicitly stated that it cannot be used in a compliant manner.</p>\n", "score": 2 } ]

[ "gdpr", "data-protection" ]

[ { "answer_id": 91453, "body": "<p>There is no nationwide prohibition on physical contact between teachers and children. But there are positive duties for child safeguarding which might result in a local policy that is more restrictive. The exact legal background is different depending on whether this is happening in England, Scotland, etc., or on whether it's a state or private school, but the net result is the same. For music tuition which takes place outside school, bodies such as the Independent Society of Musicians (the UK's main professional association for musicians and music teachers) will have their own policies for members.</p>\n<p>For example, for state schools in England, the governors must &quot;make arrangements for ensuring that their functions relating to the conduct of the school are exercised with a view to safeguarding and promoting the welfare of children who are pupils at the school&quot; (Education Act 2002 s.175(2)). This is a bit of a mouthful, but the rough idea is that the school has to implement certain policies in the interests of the child, including protecting them from sexual abuse and grooming. The school has to take account of <a href=\"https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1101454/Keeping_children_safe_in_education_2022.pdf\" rel=\"noreferrer\">statutory guidance from the Department for Education</a>. In addition, there are <a href=\"https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1101454/Keeping_children_safe_in_education_2022.pdf\" rel=\"noreferrer\">standards for teachers' conduct</a> which are used to assess their performance, and include language around safeguarding duties as well as &quot;proper and professional regard for the ethos, policies and practices of the school in which they teach&quot;.</p>\n<p>Now, there is nothing here to say that a teacher can never make physical contact with a pupil. There <em>are</em> rules about how allegations of abuse are meant to be handled, as well as the general employment law around unfair dismissal, which would mean that accidentally touching a child ought not to result in immediate sacking. A particular school could decide that on balance, the appropriate policy is one of no physical contact at all, or they could be more nuanced (which is likely). Whatever policy they do have must be communicated to the teaching staff, who naturally are meant to follow it - although again, there are requirements of fairness on the employer as to how they handle noncompliance.</p>\n<p>Given that overall framework, scenarios of accidental touching, or administering first aid, or breaking up a dangerous situation, are different from physical contact as part of normal instruction. Even a local policy which ostensibly says &quot;no touching ever&quot; would have to give way to the <a href=\"https://www.legislation.gov.uk/ukpga/2006/40/section/93\" rel=\"noreferrer\">Education and Inspections Act 2006, s.93</a> which specifically authorises our hypothetical teacher at an English state school to use reasonable force to stop a pupil injuring someone else, among other examples. That is also in line with the teachers' duty of care towards the wellbeing of their pupils. These examples are not really the same as what is happening in an ordinary music lesson.</p>\n<p>Meanwhile, outside the school gates, the <a href=\"https://www.ism.org/advice/ism-members-code-of-conduct\" rel=\"noreferrer\">Independent Society of Musicans has its own Code of Conduct</a> which includes specific rules about touching in Annex 2, paragraph 20.</p>\n<blockquote>\n<p>Physical contact between teachers and pupils is only appropriate in very limited circumstances. Teachers should consider using other strategies such as demonstrating for the student to copy or using a mirror. If a teacher intends to use any physical contact in their teaching, they should state this in writing before lessons begin and ask the parent or guardian to sign that they have read the document. Explain the type of touch involved, where on the body and why, and make sure the pupil is aware of the reason for physical contact. Explain this orally to parents, guardians and pupils, and keep them informed of any need to modify the type of touch required as pupils progress. It is not advisable to touch a child on the trunk of the body unless there is a justifiable reason (e.g. to administer first aid). It is not appropriate to touch a child around the chest, waist, diaphragm or ribs in order to teach breathing.</p>\n</blockquote>\n<p>These rules are also made in the context of safeguarding, with the threat of terminating ISM membership (at least in principle). Note that this does not say that touch is disallowed, but does ask it to be limited and respectful, and clearly signalled to the child and their parents or guardians. Other professional societies may well have their own rules.</p>\n<p>All of this is happening at the level of law and policy, and so it's a little removed from the highly emotive <em>social</em> question of what sorts of behaviour are considered acceptable. Someone who teaches music in the UK would be exposed to a range of strongly-held views on the topic, which don't necessarily relate very clearly to the legal minimum requirements.</p>\n", "score": 9 } ]

[ "is-x-legal", "education" ]

[ { "answer_id": 91451, "body": "<p>The primary legal question is whether the resident (tenant) has breached a duty of care. There are all sorts of laws establishing duties of care, such as between doctor and patient, which may be created by a legislature or may be part of common law tradition. There is a duty of care imposed on a landlord w.r.t. the tenant, requiring that the premise be &quot;secure&quot;, therefore a landlord might easily be held liable if the main door into the building was not locked. This duty is a specific instance of a general duty from tradesman/businessman to customer.</p>\n<p>As far as I can determine, there is no such statutory duty imposed on tenants in Washington state, and none from case law being revealed by a few cursory searches. In order to be subsumed under general &quot;everybody has a duty to everybody else&quot; law, the damage would have to be foreseeable. It is said that &quot;If something is foreseeable, it is a probable and predictable consequence of the defendant’s negligent actions or inaction&quot;. This mean that a reasonable person would have known that, under the circumstances, the damage is likely to result. Circumstances vary quite a bit, and there is no general rule about holding the door open for another person. If there is abundant signage reminding tenants to never ever let in a stranger no matter that their excuse and/or if the premise is in a crime war-zone, the outcome is more likely to be considered to be foreseeable.</p>\n", "score": 4 } ]

[ "united-states", "liability", "theft" ]

[ { "answer_id": 91447, "body": "<h2>It's right in the contract</h2>\n<blockquote>\n<p>In the event <strong>I fail to take delivery of the vehicle</strong> purchased by me <strong>within forty-eight (48) hours after I have been notified</strong> by you that it is ready for delivery <strong>and pay the total contract price in the manner indicated</strong>, <strong>my deposit</strong> in the amount of $300 <strong>may</strong>, at your option, <strong>be retained by you to compensate you in whole or in part for any loss sustained by you</strong>. Your <strong>right to retain my deposit shall be in addition to</strong> and not instead of any other right or remedy provided by applicable law <strong>including</strong>, without limiting the generality of the foregoing, <strong>the sale of the car or truck I agree to purchase</strong>. If the amount of my deposit exceeds actual damages sustained by you, you will promptly refund the difference to me.</p>\n</blockquote>\n<p>The car was ready on day 3. As a result, the Customer was obligated to pay and take delivery of the vehicle until day 5.</p>\n<p>Because the customer did not follow through with the purchase, the deposit is used to compensate the salesman in the amount that covers the costs of preparing the sale and having the car on the lot for those days that the salesman could not sell it to someone else.</p>\n<p>At the end of day 5, the contractual obligation to hold the car for the customers in exchange for the deposit ended, and the other clauses of the contract (car for rest of payment) become void. The car salesman is in his right to sell the car because the actual sales contract has fallen through and the holding fee/deposit expired, as the very quoted paragraph shows.</p>\n<p>Based on the final sentence of the quoted portion of the contract, to get a part of the deposit back, one would need to establish that the losses are less than the contractually fixed amount of 300 USD. When I had my car at the workshop and could not get it back on the day it was done with repairs, I was also informed that holding my car for more than a day would incur storage fees of up to 15 € per day. Similarly, the last time I bought a car, I was told that the sale included a fresh inspection and oil. Those are costs to the seller and can be accounted for in the deposit. The inspection costs about ~120 € for a new TÜV certificate and exhaust check and the materials for an oil change come for about 70 €. This leaves about 70 € cover for the mechanic and salesman's wages for about one hour. That's 300 €, or about 330 USD today. As such, costs to prepare a contract and transfer, inspect the car for roadworthiness as well as storage fees most likely are reasonably assessed to be in the 300 USD area.</p>\n", "score": 4 } ]

[ "united-states", "contract-law", "massachusetts", "car" ]

[ { "answer_id": 91391, "body": "<p>India does not have a comprehensive civil code, although though the Indian constitution allows the government to enact one.</p>\n<p>This is a product of two things.</p>\n<p>First, India's law are in the common law tradition, so most law that would be discussed in a European or Asian or Latin American civil code would be found in case law precedents rather than a legislatively adopted statute.</p>\n<p>Second, India has intentionally not sought uniformity in its laws of family law and inheritance, in which India instead has different laws for these areas depending upon the religion of the people involved. So, these parts of the civil law are codified, but only on a religion by religion basis. The concept of authorizing a uniform civil code was intended to permit the government to abolish these religious distinctions on matters of family law and inheritance, but this authority has not been utilized thus far.</p>\n", "score": 1 }, { "answer_id": 91446, "body": "<p>The Civil Procedure Code, 1908 does have a definition of what constitutes as &quot;civil law&quot; although it is in the form of precedent applicable to Section 9.</p>\n<h2>Section 9</h2>\n<p>The jurisprudence under <a href=\"https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00051_190805_1523340333624&amp;sectionId=33342&amp;sectionno=9&amp;orderno=9\" rel=\"nofollow noreferrer\">Section 9 of the CPC</a> has helpful interpretations of the phrase &quot;all suits of a civil nature&quot; contained in Section 9, and judges often go into applying a definition of civil law, for instance, :-</p>\n<ul>\n<li><a href=\"https://indiankanoon.org/doc/634316/\" rel=\"nofollow noreferrer\">Most. Rev. P.M.A. Metropolitan and others, etc v. Moran Mar Marthoma and another etc.</a> - in paragraph 28, adopts the definition given by Black's Law Dictionary to the words &quot;civil&quot;, &quot;proceeding&quot; while stating <strong>civil law to simply be the antonym of criminal law.</strong></li>\n<li><a href=\"https://indiankanoon.org/doc/1350866/\" rel=\"nofollow noreferrer\">Sri Keshav Gupta Chhajju Singh vs Ghayur Ali Khan</a> - In this case, the word civil proceeding was stated to imply it's ordinary meaning, whereas the <strong>dictionary definition of civil law</strong> was adopted as follows:- <em>The word &quot;civil,&quot; when used as an adjective to &quot;law&quot;, has been defined in the Shorter Oxford Dictionary as &quot;pertaining to the private rights and remedies of a citizen as distinguished from criminal, political etc.&quot;</em></li>\n<li><a href=\"https://indiankanoon.org/doc/72503/\" rel=\"nofollow noreferrer\">State Of Uttar Pradesh And Ors. vs Mukhtar Singh And Ors.</a> - Where a judge expands on the definition of civil laws for the purposes of the section, stating the <strong>explanation by the jurist, John Austin</strong> - &quot;<em>By civil laws (says he), I understand the laws that men are therefore bound to observe, because they are members, not of this or that commonwealth in particular, but of a commonwealth. For the knowledge of particular laws belonged to them that profess the study of the laws of their several countries : but the knowledge of civil laws in general, to any man.</em>&quot;</li>\n</ul>\n<p>Thus, one can deduce that Indian courts while applying Section 9 have defined civil law to be in opposition to other branches of law, while there may be some commonalities in the proceedings in case of special enactments governing quasi-criminal matters as well as in writs such as quo warranto. Additionally, civil proceedings administer civil law that regulates the relationship between private right exercising individuals.</p>\n<h2>“Civil Rights” as Private Rights for the purposes of Section 9</h2>\n<p>Since <a href=\"https://indiankanoon.org/doc/614594/\" rel=\"nofollow noreferrer\">courts have viewed</a> Section 9's definition of civil proceedings to that which claims action against <strong>breach of a civil right</strong>, it is necessary to understand what is a civil right.</p>\n<p>What the Indian courts calls “civil rights” are private rights in modern jurisprudence. Private rights under Indian law are those which are granted by common law or statutory law and governs the rights of persons in their private matters. <a href=\"https://www.britannica.com/topic/common-law\" rel=\"nofollow noreferrer\">The system of common law refers to that which is evolved from caselaw.</a> This is the fundamental basis of the rights granted by the judicial system, say, in cases where there are tortious claims. Further, <a href=\"https://www.legalserviceindia.com/legal/article-5651-ubi-jus-ibi-remedium.html\" rel=\"nofollow noreferrer\">the maxim <em>Ubi jus ibi remedium</em> is instructive here.</a></p>\n<p>Statutory laws also provide for civil rights, and may, optionally expressly bar the jurisdiction of the civil court under Section 9 of the CPC before whom every civil proceeding shall ordinarily lie.</p>\n<hr />\n<p><strong>TL;DR</strong> Hence, Indian courts consider civil law to be that which is :-</p>\n<ol>\n<li>Not criminal or constitutional (although some writs are also the subject of civil proceedings);</li>\n<li>Governs the relationship between private persons;</li>\n<li>Grants a remedy against breach of a civil right.</li>\n</ol>\n", "score": 1 } ]

[ "civil-law", "india" ]

[ { "answer_id": 91445, "body": "<p><strong>Breach of GDPR</strong></p>\n<p>France, Italy and Greece fined Clearview AI 20 million Euros for the following breaches:</p>\n<ul>\n<li>Unlawful processing of personal data (breach of Article 6 of the GDPR)</li>\n<li>Individuals’ rights not respected (Articles 12, 15 and 17 of the GDPR)</li>\n<li>Lack of cooperation with the CNIL (Article 31 of the RGPD)</li>\n</ul>\n<p><a href=\"https://techcrunch.com/2022/10/20/clearview-ai-fined-in-france/\" rel=\"nofollow noreferrer\">https://techcrunch.com/2022/10/20/clearview-ai-fined-in-france/</a>\n<a href=\"https://techcrunch.com/2022/03/09/clearview-italy-gdpr/\" rel=\"nofollow noreferrer\">https://techcrunch.com/2022/03/09/clearview-italy-gdpr/</a>\n<a href=\"https://techcrunch.com/2022/07/13/clearview-greek-ban-order/\" rel=\"nofollow noreferrer\">https://techcrunch.com/2022/07/13/clearview-greek-ban-order/</a></p>\n", "score": 3 }, { "answer_id": 48501, "body": "<p>You appear to be outraged and offended at the <em>terribly dangerous technology</em> in use,</p>\n\n<blockquote>\n <p>but the database is filled with publicly-available data scraped from\n sites like Facebook, Twitter, etc.</p>\n</blockquote>\n\n<p>Publicly available data. You - and all of those other billion users - agreed to allow those platforms to publicly share your data with other platforms or scrapers when you opened an account.</p>\n\n<p>Read the TOSs of Facebook, Twitter, etc. When users of those platforms signup, they agree to allow the platforms to share their data with other platforms. That agreement may be in small print, but it is still there, and it is legally binding. You have no legal recourse against them, except to delete your account. (And TOSs can change, without informing you; read that part, too).</p>\n\n<p>Unless you can show that Clearview broke Facebook Twitter's, or those companies broke their own TOS by allowing Clearview to scrape data, there's nothing to say. Unless you can show that Clearview broke the law or a TOS, you have no legal recourse against Clearview. </p>\n\n<p>If a company did break a TOS, that's more than likely civil law, not criminal.</p>\n\n<p>In any event, Clearview is a different company; you have to abide by Clearview's process to ask them to remove your data. They are not bound by the TOS of another company. They are bound by law, but until the law tries to catch up with technology and privacy (i.e., GDPR), they are free to operate.</p>\n\n<p>If you value your privacy, read the TOS before you sign up with any service, even a library card or driver's license in your own town.</p>\n", "score": 2 }, { "answer_id": 48587, "body": "<h2>You can't</h2>\n\n<p>There is a practical dimension here - if you don't tell them who you are, how can they identify (and delete) PII that belongs to you? \"Please delete all my data\" is a request that is impossible to comply with if they don't know who \"me\" is.</p>\n\n<p>As for identification, the right to have the data deleted (where you have such a right which is by no means universal) requires you to reasonably prove that you are you. Otherwise, you could request the deletion of my data and only I can do that.</p>\n", "score": 1 } ]

[ "privacy", "human-rights", "fifth-amendment", "security", "data" ]

[ { "answer_id": 91437, "body": "<p>By not providing any material to support the asterisk, the firm placing the ad lost an intended opportunity to clarify what they meant by the word &quot;free&quot; and are now left in the same position as if the asterisk had never appeared at all.</p>\n<p>Realistically, somebody connected with the firm publishing the advertisement probably planned to clarify the meaning of the word &quot;free&quot; to give it a more narrow meaning than its undefined meaning without any qualifications. But apparently, somebody failed to get around to doing that or it was lost in a typesetting error. So, any restriction on the meaning of the word &quot;free&quot; that was intended by the firm has been lost, potentially causing the offer to be abused in ways that the firm hadn't bargained to commit itself to.</p>\n<p>It pays to proofread anything that will be distributed to the general public because it can weaken the publisher legally by not saying something it should or by saying something inaccurate, and also because it makes the publishing firm look incompetent.</p>\n<p>UPDATE FROM COMMENTS:</p>\n<blockquote>\n<p>By the way, the flyer came with a gift card sticked onto it. The\nmatching asterisk is explained on the back of the gift card, which was\nnot visible while it was sticked onto the flyer. The matching asterisk\nreads &quot;with an order value of at least 10.-, only redeemable online&quot;.\nDo you think this is still acceptable?</p>\n</blockquote>\n<p>This is probably still effective to limit the offer. While it isn't readily visible, it is visible before you actually try to use the offer.</p>\n", "score": 2 } ]

[ "advertisements", "any-jurisdiction", "switzerland", "false-advertising" ]

[ { "answer_id": 91331, "body": "<blockquote>\n<p>You can't prove a negative, so they can't be convicted of perjury for lying about whether they remember;</p>\n</blockquote>\n<p>Yes, they can. The government can convict the witness of perjury by proving that they <em>did</em> remember. This may be difficult, but it's not impossible.</p>\n<p>Now you may say that we can't ever prove with certainty what a person did or didn't remember. But the legal standard isn't <em>certainty</em>, it's <em>beyond a reasonable doubt</em>. So a jury is allowed to draw a <a href=\"https://www.law.cornell.edu/wex/inference\" rel=\"noreferrer\">reasonable inference</a> about whether they remembered, based on evidence of their outward behavior and other circumstances.</p>\n<p>As an extreme example, suppose Alice was overheard chatting freely about topic X an hour before the trial, but when asked about topic X on the stand, said she didn't remember. When presented with evidence of her earlier conversation, a jury could reasonably infer that she was lying about not remembering. Is it <em>possible</em> that she truly had a memory lapse in the intervening hour? Sure, anything is possible. Is it <em>reasonable</em> to believe that she did? Probably not.</p>\n<p>The <a href=\"https://www.justice.gov/archives/jm/criminal-resource-manual-1753-perjury-cases-special-problems-and-defenses-evasive-and\" rel=\"noreferrer\">US Department of Justice's Criminal Resource Manual</a> has this to say on the subject:</p>\n<blockquote>\n<p>Witnesses who claim not to remember, rather than deny a fact, may be prosecuted for perjury. However, the government must prove both that the witness at one time knew the fact and that the witness must have remembered it at the time he or she testified. United States v. Chen, 933 F.2d 793, 795 (9th Cir. 1991). If the dates of the transaction and testimony are sufficiently close, memory may be inferred. Instances in which the witness remembered other events that occurred at the same time or earlier than the event in question, or mentioned the event either immediately before or after his testimony, would be probative of the witness's memory at the time of the testimony. The two witness rule does not apply to prosecutions based on false memory lapses, and circumstantial evidence is sufficient, since there is no direct evidence possible concerning what the defendant actually believed. Gebhard v. United States, 422 F.2d 281, 287 (9th Cir. 1970).</p>\n</blockquote>\n<p>There's a similar issue in all laws that deal with a person's knowledge or intent. Suppose Alice hits Bob with a stick and he dies. To convict Alice of murder, it must be proved that by hitting Bob, she intended to kill him. Can we ever really know what was in her heart? Maybe not, but if there is evidence that shortly beforehand, she told someone that she was going to kill Bob, it would be a reasonable inference that this was her intention.</p>\n", "score": 37 }, { "answer_id": 91332, "body": "<p>Anything you say in a court of law can be used against you in a court of law, unless the testimony is given under a grant of immunity. You would need to provide a transcript of the hypothetical testimony to get the understanding that you're looking for, but it is easy for a person to contradict themselves, claiming that you saw Jones on some date, and that you can't remember if you have ever seen Jones. Your &quot;can't remember Jones&quot; testimony can be refuted with physical evidence such as emails, journal entries, photographs or testimony such as a person testifying that they saw you talking to Jones in a manner that clearly indicates that you knew who he was.</p>\n<p>You might avail yourself of the brain-surgery defense, to the effect that you may have done so but in the interim you had brain surgery and you can't remember anything from that month, but the jury will not believe that unless you provide convincing positive evidence that you had such surgery and that there is sufficient medical reason to believe that lack of recollection is possible.</p>\n<p>Although this is not ideally how it is supposed to play out, if the prosecution offers some reason to think that you lied on the stand, you have to offer a reason to doubt the prosecution's position. In some jurisdictions, the finders of fact are told that they should be &quot;firmly convinced&quot; of the prosecution's claim, but there is a real tendency for juries to understand &quot;reasonable doubt&quot; as referring to &quot;a reason to doubt&quot;. That is how you &quot;prove a negative&quot;, by offering evidence that contradicts the claim.</p>\n", "score": 10 }, { "answer_id": 91354, "body": "<p>Nothing stops a person from saying just that. Ronald Reagan famously did so when subpoenaed during Iran-Contra.</p>\n<p><a href=\"https://www.chicagotribune.com/news/ct-xpm-1990-02-23-9001160156-story.html\" rel=\"nofollow noreferrer\">https://www.chicagotribune.com/news/ct-xpm-1990-02-23-9001160156-story.html</a></p>\n<p>It was widely regarded as a dodge at the time. On the other hand he was diagnosed with Alzheimer's a few years later. (But on the gripping hand, his doctors say he didn't start showing signs of that until 1993. <a href=\"https://www.baltimoresun.com/news/bs-xpm-1997-10-05-1997278112-story.html\" rel=\"nofollow noreferrer\">https://www.baltimoresun.com/news/bs-xpm-1997-10-05-1997278112-story.html</a> So maybe it was a dodge.)</p>\n<p>Other answers here have give reasons that doesn't always work. But this famous precedent seems relevant.</p>\n", "score": 0 }, { "answer_id": 91359, "body": "<p>What stops them from claiming they don't remember? Not much can stop them from doing it. But there can be repercussions. Another poster rightfully pointed out that someone CAN be convicted of perjury for claiming they couldn't remember something. And even if the witness is never charged and prosecuted for perjury, the judge or jury is entitled to take everything the witness says (including claims that they can't remember something) into account when deciding whether they believe what the witness is saying. If the facts and circumstances lead a judge or jury to doubt that the witness is telling the truth about being unable to remember, they might give the testimony of this witness (including unrelated things testified to by the witness) less weight because they doubt the witness's credibility. And if the witness tries to later claim that they now remember the information they previously claimed to be unable to remember, that can similarly impact their credibility.</p>\n", "score": 0 } ]

[ "fifth-amendment", "perjury", "testimony", "knowledge" ]

[ { "answer_id": 91337, "body": "<blockquote>\n<p>Does Florida state law require that an estate go into probate in the\nevent the seller in a real estate transaction passes away prior to\nclosing?</p>\n</blockquote>\n<p>Yes, if the seller is the owner of the property which is not in joint tenancy with right of survivorship or something similar (such as a transfer on death deed).</p>\n<p>A will is meaningless until it has been admitted to probate (which is a term that in the narrow sense means &quot;validating the authenticity and validity of a will). Likewise, an adjudication that someone had no will cannot be made without a probate proceeding. There is no exception for a clear an uncontested will. &quot;Will&quot; means &quot;probate&quot; pretty much by definition.</p>\n<p>This doesn't mean, however, that the closing of the property has to waive until the probate proceeding including a full administration of the probate estate and closing of the probate estate is required. Often, a will can be admitted to probate and an executor can be appointed to manage the estate in a matter of a few weeks to a few months if there is no contest to either the validity of the will or the appointment of a particular person as an executor.</p>\n<p>Generally, once the executor is appointed in the probate case, the real estate closing can go forward, sometimes with some additional uncontested motion practice. Once the property is sold, the proceeds are put in an estate bank account pending further administration of the estate's assets and liabilities. Indeed, even if the will is contested, as long as a consensus can be reached among the interested parties regarding who the executor should be, the real estate closing could go forward despite the fact that the will is contested.</p>\n<p>Powers of attorney are sometimes granted to real estate agents to complete a transaction in the event of a seller's incapacity. But powers of attorney are void no later than the point at which the person with the power of attorney learns of the death. (The common law rule was that a power of attorney was void at the moment of death, even if no one involved in the transaction knew that fact yet.)</p>\n<p>The only person with authority to sign the deed to sell the property, if the property is titled in the name of the seller individually, with no co-owner (or with a tenant-in-common co-owner), is the probate estate's executor.</p>\n<p>The real estate contract is a claim in the probate estate, which the probate estate is required to carry out if it is able to do so. But a real estate contract, in and of itself, doesn't transfer the property by operation of law at closing. Until the probate estate is opened, the buyer doesn't even have anyone who can be sued to demand that the real estate contract be performed.</p>\n", "score": 4 } ]

[ "real-estate", "florida", "probate" ]

[ { "answer_id": 91397, "body": "<p><a href=\"/questions/tagged/british-columbia\" class=\"post-tag\" title=\"show questions tagged &#39;british-columbia&#39;\" aria-label=\"show questions tagged &#39;british-columbia&#39;\" rel=\"tag\" aria-labelledby=\"tag-british-columbia-tooltip-container\">british-columbia</a></p>\n<p>I am not aware of any judicial consideration of this issue.</p>\n<p>The <em>Liquor Control and Licensing Act</em>, <a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/15019#section78\" rel=\"noreferrer\">s. 78(1)</a> says:</p>\n<blockquote>\n<p>A minor must not, except as provided under this Act or unless the minor does so with other lawful excuse, ... consume liquor.</p>\n</blockquote>\n<p>(One of those exceptions are when the alcohol is supplied by the minor's parents, spouse or guardian in a residence for consumption in the residence. There are other exceptions, too. But I'll assume you're asking about a circumstance where no exception applies.)</p>\n<p>The <em>Liquor Control and Licensing Act</em> defines a &quot;minor&quot; to be a person under the age of majority established by the <a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96007_01\" rel=\"noreferrer\"><em>Age of Majority Act</em></a>, which is age 19 today.</p>\n<p>The <em>Liquor Control and Licensing Act</em>, <a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/15019#section57\" rel=\"noreferrer\">s. 57</a> makes it an offence to contravene s. 78(1).</p>\n<p>The <em>Interpretation Act</em>, <a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96238_01#section25.1\" rel=\"noreferrer\">s. 25.1</a> states that &quot;A person reaches a particular age expressed in years at the beginning of the relevant anniversary of the person's birth date.&quot; The <em>Interpretation Act</em> also clarifies that the reference to time &quot;is a reference to Pacific Standard Time&quot; (or Pacific Daylight Saving Time, when it is in effect).</p>\n<p>Thus, a person is a minor until &quot;the beginning [in Pacific time] of the relevant anniversary of the person's birth date.&quot;</p>\n<p>It is most clear in relation to the identification requirements when selling to a minor, but the Regulations (<a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/241_2016#section158\" rel=\"noreferrer\">s. 158</a>) refer to the date of birth as displayed on the person's identification card.</p>\n<p>This all suggests that when consuming alcohol in the greater Vancouver area, a person just about to reach the age of majority must wait until the date in the Pacific time zone is that which is displayed on their identification. Or barring any identification, until the date in the Pacific time zone is the date that is the person's birth date.</p>\n", "score": 19 }, { "answer_id": 91406, "body": "<p>I think the key point here is to understand that an &quot;age&quot; is not an attribute of an individual, but a status which an individual enjoys within a particular legal jurisdiction.</p>\n<p>The &quot;birth date&quot; of an individual is the calendar date on which they were born (without any importance attributed to the time of birth on that date).</p>\n<p>If there were uncertainty in a legal context due to timezones, I expect that the default approach would be to treat the <em>local</em> date at their place of birth, as the date of birth.</p>\n<p>The &quot;age&quot; (in years) of an individual is typically reckoned as how many anniversaries have passed since their <em>birth date</em>. The typical legal treatment of a Feb-29 birthday is to treat the anniversary as passing on Mar-01, in those years where the operation of the calendar means no Feb-29 occurs.</p>\n<p>A person's current age in a particular jurisdiction, would be reckoned by considering their <em>nominal</em> birth date (i.e. the date as it was at the time of their birth and in the place of their birth), and then considering how many anniversaries have passed by reference to the <em>local</em> time of the current jurisdiction.</p>\n<p>The implication of this is that a person can have different ages in different legal jurisdictions around the world.</p>\n<p>And for legal purposes in general, the time or exact ordering of birth is irrelevant. Two children born on the same date, even if at different times, are the same age. No further ordering of their ages is typically recognised.</p>\n<p>In the case of the question, Bob is older than Alice because his date of birth is Mar-07, and Alice's date of birth is Mar-08. Alice was born <em>on a later date</em> than Bob, by reference to the local time of the jurisdiction in which they were born.</p>\n<p>This is the case even if there is evidence that the timings of their births were such that a certain time of day in the place where Alice was born on Mar-08, fell earlier than the time of day in the place where Bob was born on Mar-07.</p>\n<p>As for enjoying a drink on one's birthday, Alice could not yet have celebrated her birthday in the jurisdiction, and it must be obvious to her that her 19th birthday is the following day.</p>\n<p>That is, unless the scenario is complicated further by Alice not only being born in a different jurisdiction (which establishes the foundation for claiming she is, by some reckoning, older than Bob), but also having travelled on the relevant day from a jurisdiction where she is treated already as 19, to a jurisdiction where the calendar date has not yet turned over and she is treated as only 18.</p>\n<p>As a final aside, it's important to recognise that exact times of birth are often not known (especially as to whether it falls exactly before or after midnight, which is when the date changes), and historically in the Western world (and still in less developed parts of the world) even the date may be subject to some considerable uncertainty as births were not routinely registered. This is resolved typically by forcing a choice to be made then making that choice binding.</p>\n", "score": 16 } ]

[ "age" ]

[ { "answer_id": 91390, "body": "<p>Eviction is the legal process of removing a tenant from a premise, which can be necessary because the landlord cannot legally throw the tenant out. (The sheriff does it, under orders from a court.) When the tenant has quit the premise, the landlord's remaining concern is (potentially) a lawsuit for breach of contract – if the landlord wants money, they will need to get a court order.</p>\n<p>The landlord can sue for the entire amount, the remainder of 2 years' rent minus whatever has been paid, but obviously the tenant has available the option of paying less than that to be in compliance with their lease obligation. Still, unless the tenant simply had a technical glitch and did intend to pay the remaining month's rent, it may be necessary to take the matter to court. The tenant might be motivated by the fact that <a href=\"http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&amp;URL=0000-0099/0083/0083.html\" rel=\"nofollow noreferrer\">§83.48 of the landlord-tenant law</a> awards costs to the winner in the legal proceeding. §83.56 states the formal process of terminating the agreement, in particular para 3 regarding non-payment and the notice that has to be given. This also reminds you of the obligation under §83.49(3) regarding the return of the deposit.</p>\n<p>Finally, §83.595 is specifically about how the landlord gets the rent owed. Theoretically, the added extra month rent could be subsumed under the concept of &quot;liquidated damages&quot;, but there has to be certain wording in the agreement, so the landlord will have to go to court if he wants the full three months.</p>\n", "score": 2 } ]

[ "residential-lease", "florida" ]