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[ { "answer_id": 32708, "body": "<p>I'm an emergency medical technician in Vermont. In an emergency, information may be shared with anyone likely to be able to help. For example, I knock on a door and ask</p>\n\n<p>\"Did you call for an ambulance?\"</p>\n\n<p>\"No.\"</p>\n\n<p>\"Is this 178 Lake drive?\"</p>\n\n<p>\"No, this is 182.\"</p>\n\n<p>\"Do you know where 178 is?\"</p>\n", "score": 2 }, { "answer_id": 32704, "body": "<p>Questions by a health provider are very likely to reveal some health-related information about you. The mere fact that you have consulted a particular provider is generally considered protected health information (PHI). The nature of the question is likely to reveal additional info, unless perhaps it is asking only for demographic info such as your age, or contact info for you. Just what info would be revealed depends on the specific question or questions asked, but under HIPAA information may be considered to be &quot;revealed&quot; by implication, even if it is not explicitly stated. If someone hearing all of the question(s) asked could plausibly conclude something about your health, such as your diagnosis or symptoms, that such a person would not have known otherwise, then it has been revealed.</p>\n<p>In general a provider may not reveal PHI without the consent of the patient. A parent or guardian may give consent for an underage child. The holder of a PoA or healthcare proxy may give consent if the document authorizes this. A guardian may consent for someone who is legally incompetent.</p>\n<p>There are specific circumstances under which info may be revealed without consent. For example, it may be given to a billing service so that you can be billed. Info may be given to affiliated providers who are being consulted on your case. (for these you must be informed of the possibility in advance, usually when first seeing the provider.) It may be given to an insurance company so that a claim may be filed and paid. If there is reason to believe that you are a danger to yourself or others, info may be given to emergency services as needed. <strong>Edit:</strong> It may be shared for any reasonable purpose in the event of an emergency, and there are other exceptions.</p>\n<p>And of course if you signed a consent form in advance, info may be given in accord with that form.</p>\n<p><strong>Edit:</strong> None of the obvious exceptions seem to apply here, but without specifics one cannot be sure.</p>\n<p>The potential penalties for violating HIPAA restrictions are quite sizable, although there is a great deal of discretion in what penalties will actually be imposed, if any.</p>\n", "score": 1 } ]

[ "united-states", "privacy", "medical", "health" ]

[ { "answer_id": 27047, "body": "<p>The second paragraph actually says that your e-mail address <em>will</em> become public record if you send an e-mail message to them. That's because there's a Florida law that requires this. If you want to communicate with the school without your e-mail address appearing in the public record, you can call on the telephone, send postal mail, or visit in person.</p>\n\n<p>The notice is precisely there to inform you of the fact that sending e-mail to the school will have this effect, and it helpfully mentions one of the ways you can avoid that outcome:</p>\n\n<blockquote>\n <p>If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone.</p>\n</blockquote>\n\n<p>If you think about the nature and purpose of public records laws, you will perhaps understand why the Florida law does not speak of consent or allow those corresponding with affected entities to opt out. If that were possible, then people who were conducting improper business with the public entities would withhold consent or otherwise opt out, making the public records law useless in the service of its goal of increasing transparency in government.</p>\n", "score": 5 }, { "answer_id": 27048, "body": "<p>As phoog correctly states, if you reply to an email from a state agency, the entire message minus statutorily restricted information is subject to disclosure under Florida <a href=\"http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&amp;URL=0100-0199/0119/0119.html\" rel=\"nofollow noreferrer\">public records law</a>, as long as the record (portion) is not exempted (confidential information may be redacted). It is reasonable to think (based on a reading of things exempted) that an email address is non-exempt, but that is not absolutely guaranteed. You should read their statement in para 2 as an interpretation of what the law requires. That law does not require you to do anything, instead, the school will do something if they are told to.</p>\n\n<p>The tail of the first paragraph is somewhat deceptive. Whether or not you are the intended recipient, you \"must\" secure the contents in accordance with all applicable law. They do not actually state that any law is applicable to you. HIPAA and FERPA do not impose any requirements on \"ordinary folks\", they impose requirements on state agencies, educational institutes, medical practitioners, and so on. But, you are not interacting with them as \"ordinary folks\", you are doing so in connection with a business, and businesses are regulated. So in fact there <em>are</em> restrictions, HIPAA and FERPA being prominent, on dealing with emails, intended or not, which contain confidential information.</p>\n", "score": 2 } ]

[ "united-states", "email" ]

[ { "answer_id": 26487, "body": "<p>In the absence of national security concerns, it is legal to store emails on mail servers outside the US. This is true <a href=\"https://law.stackexchange.com/questions/25636/for-hipaa-does-us-patient-data-have-to-stay-on-us-servers/25692#25692\">even of information protected by HIPAA</a>.</p>\n<p>This is a good thing, because the way the Internet works is a sort of pony express style network. Your email goes from server to server to server, potentially all over the world even if the sender and recipient of the email are not too far from each other in the same country, by a route that only the most sophisticated techies can even determine, and spends time in all of the unknown servers it crosses through en route. An email I send from Denver to my brother in Boston could easily detour through servers in Canada and Iceland en route, for example. So, if it was illegal for a U.S. business to have an email on a non-U.S. server, it could easily violate the law every day without even knowing it.</p>\n<p>Defense contractors and intelligence agency contractors would typically be subject to much more stringent cyber security requirements set forth in their contracts and mandated by various DOD and intelligence agency regulations which might prohibit storing emails on mail servers outside the U.S. The exact details of those requirements typically aren't publicly available to people who do not have security clearances, and might involve crypto standards rather than the physical locations of the servers used, for example.</p>\n<p>Note, however, that the fact that server is outside the U.S. would not relieve the U.S. based business of the obligation to comply with subpoenas and other legal process related to data in foreign servers which they control. Generally, court orders act on the person and subject that person to penalties if they fail to comply, rather than upon the thing involved in a direction to comply with court process. But, if the information was in foreign servers, a subpoena to get the information might have to be aimed at the U.S. company, rather than the foreign server management company in the absence of a cumbersome process called issuance of letter rogatory.</p>\n<p>Similarly, the U.S. business would not be immune from liability, for example, under U.S. child pornography laws, simply because the U.S. business had emails and data on a server outside the U.S. rather than in the U.S., at least, if the U.S. person or business could effectively exercise control over that data, in the eyes of a judge.</p>\n<p>A final point worth noting is that it would be much easier for the NSA to obtain legal authority to hack email of a U.S. business on foreign servers than it would be for the NSA to get legal permission to hack the email of a U.S. business on domestic servers. As far as U.S. intelligence agencies are concerned, almost all non-U.S. sources are legitimate hacking targets for any alleged intelligence objective, read very leniently.</p>\n", "score": 2 } ]

[ "united-states", "international", "jurisdiction", "data-storage" ]

[ { "answer_id": 25026, "body": "<p>It's hard to prove nonexistence when it comes to federal law, but as far as I can tell there is no federal fine for negligently storing a social security number. States are another matter, though most state laws pertain to sending material with a social security number on it (see <a href=\"https://www.cga.ct.gov/2011/rpt/2011-R-0369.htm\" rel=\"nofollow noreferrer\">this report</a> on Connecticut law and associated fines). HIPAA also requires that personal information be stored securely, and a social security number (and all sorts of other information) would be an example of protected information. There is a civil penalty of $100 for an unknowing violation, a disclosure that the entity is unaware of and could not have realistically avoided, had a reasonable amount of care had been taken to abide by HIPAA Rules. For \"willful neglect\" the penalty is $10K minimum (here is <a href=\"https://www.gpo.gov/fdsys/pkg/FR-2013-01-25/pdf/2013-01073.pdf\" rel=\"nofollow noreferrer\">the rule</a>, and the part of CFR that gives these amounts is <a href=\"https://www.law.cornell.edu/cfr/text/45/160.404\" rel=\"nofollow noreferrer\">45 CFR 160.404</a>).</p>\n", "score": 0 } ]

[ "us-constitution", "federal-courts", "statutes", "digital-forensics" ]

[ { "answer_id": 15418, "body": "<p><a href=\"http://www.ecfr.gov/cgi-bin/text-idx?SID=cd65fda336073127c9ca168b477e414e&amp;mc=true&amp;node=sp45.1.164.e&amp;rgn=div6\" rel=\"nofollow noreferrer\">HIPAA privacy regulations</a> do not rely on the term \"status\", but it is used as an ordinary-language way of talking about a person's condition. A full medical record is pretty detailed, and the restrictions on disclosure are not just on records. A doctor can't tell a friend health-status thing like \"He has 2 months to live\" or \"He broke his arm\", without the consent of the covered entity (a.k.a. patient). The two main elements that go into a doctor talking about a patient are patient consent and relevance (<a href=\"https://www.gpo.gov/fdsys/pkg/CFR-2003-title45-vol1/xml/CFR-2003-title45-vol1-sec164-510.xml\" rel=\"nofollow noreferrer\">subsection (b) here</a>). It could be relevant to discuss payment options with adult family members, but not with children or the taxi driver. There should be more detailed information to go with the form you signed which would explain why they would ever talk to a government agency, though often you get a sheaf of paper and corresponding prompts on a signature pad.</p>\n", "score": 1 }, { "answer_id": 15409, "body": "<p>The clause does not say what you think it does. Your status is either \"current patient\" or \"former patient\".</p>\n", "score": 0 } ]

[ "contract-law", "privacy", "health" ]

[ { "answer_id": 14765, "body": "<p>Typically, a person (including a corporate person) is subject to a jurisdiction if they have a connection to it. Doing business within it is certainly a connection, so the jurisdictions of the business and the customer are both applicable. Similarly, where the information is can trigger jurisdiction. The person who has custody may also trigger jurisdiction.</p>\n\n<p>Lack of jurisdiction is grounds for a court refusing to issue or the served person to challenge a subpoena. The court will decide if the person is or is not subject to their jurisdiction. They are usually pretty liberal in this decision: if they can justify a connection then they have jurisdiction.</p>\n\n<p>Of course, having jurisdiction and being able to enforce their writs are two different things, particularly if the connection is slight. This will boil down to the degree of cooperation between jurisdictions and if another jurisdiction will enforce the other's claim to jurisdiction.</p>\n\n<p>If you get a subpoena, you need legal advice.</p>\n", "score": 1 }, { "answer_id": 14972, "body": "<p><strong>General Rules</strong></p>\n<p>Operationally, the limitations imposed by the court rules of the court where a lawsuit is pending governing subpoenas (Federal Rule of Civil Procedure 45 in federal civil lawsuits and similar rules in most state court sytems) are more restrictive than the limitations imposed on jurisdiction in civil lawsuits generally by the due process clauses of the 5th and 14th Amendments of the United States Constitution which govern jurisdiction in civil lawsuits generally. (Subpoenas in criminal lawsuits and subpoenas issued by administrative agencies are beyond what is reasonably considered in this answer.)</p>\n<p>Generally what matters is: where a person resides, is employed or regularly conducts business (any of these suffice); where the subpoena directs the person to comply; and the burden imposed.</p>\n<p>So, basically, the only important factor is the residence or business address of &quot;The party holding the information&quot; (with &quot;holding&quot; defined as having &quot;possession, custody or control&quot; of the information where ever it may be physically located) in relation to the place where the information sought is to be produced.</p>\n<p>Sometimes exceptions to the general rule may be made on a case by case basis by someone subject to a subpoena based upon hardship in this particular instance. The other three factors that you suggest are basically irrelevant unless the subpoena directs a physical inspection of something or someplace, in which case the location of the thing or place is what usually matters.</p>\n<p>Usually, under evolving jurisdictional laws set by the U.S. Supreme Court, entities are deemed to reside at their headquarters and if different also at the office of their registered agent to receive service of legal process in the state under whose laws they are formed. Sometimes, this is defined more broadly.</p>\n<p>In the case of an entity, normally, the person subject to a subpoena would be the custodian of the records of the entity that provides them, and if that person is unknown, the subpoena would often be a two step process with step one being an order directing the entity subject to the subpoena to designate a human being as a custodian of the records requested who must actually be able to obtain access to the records, and the second step being a subpoena directed at the custodian. This is because the usual consequence for failing to comply with a third party subpoena is for an arrest warrant to issue for the non-compliant custodian of records.</p>\n<p>In the case of mental health records, a subpoena could be directed either at the custodian of those records or in the alternative to someone who has authority to access those records.</p>\n<p><strong>Conflict of Laws Issues</strong></p>\n<p>But, any request for a mental health record would be subject to defenses of doctor-patient privilege and HIPAA privacy laws (in the U.S.) and the former would be resolved based upon the relevant state law (which is often a quite mushy question that can turn on a great many relevant facts such as the ones you identify) by the Court with jurisdiction under Rule 45 or the equivalent over the person compelled by the subpoena to produce the records.</p>\n<p>The question of whose doctor-patient privilege laws to apply is called a &quot;conflict of laws&quot; question as opposed to a jurisdiction or civil procedure question - which courts can be applied to in order to make the decision is usually pretty clear, but which law that court will chose to use in the case is often mushy in cases with complicated facts like the ones mentioned in the question and the outcome of a conflict of law issue is often very difficult to predict.</p>\n<p>Fortunately, often the conflict of law issue won't matter. This is because the substantive law is frequently very similar in all of the relevant jurisdictions in subpoena cases because almost all state laws on the question are derived from a shared common law legal tradition that predates American independence and from a shared federal case law on the scope of legal privileges not to respond to subpoenas that state courts emulate even when they are not required by the constitution to do so.</p>\n<p><strong>Interstate and International Subpoenas Originating In State Courts</strong></p>\n<p>The structure is a bit different in international and interstate cases than in Federal Rule of Civil Procedure 45 quoted below.</p>\n<p>If a person subject to a subpoena is in another state in a state court lawsuit, or is in another country, the court where the case is pending exchanges &quot;letters rogatory&quot; with a civil court whose territorial jurisdiction includes the part of the state or country where the person subject to the subpoena is located and the actual subpoena is issued by the receiving court in a summary proceeding (compliance in mandatory in another state due to the full faith and credit clause of the constitution and is voluntary and based on international comity or international treaties in international cases). This process is slow and expensive and often cannot be completed in time for a trial in a state court case unless commenced as soon as possible.</p>\n<p><strong>Appendix</strong></p>\n<p>Federal Rule of Civil Procedure 45 states in the pertinent parts that:</p>\n<blockquote>\n<p>Rule 45. Subpoena</p>\n<p>(a) In General.</p>\n<p>(1) Form and Contents.</p>\n<p>(A) Requirements -In General. Every subpoena must:</p>\n<p>(i) state the court from which it issued;</p>\n<p>(ii) state the title of the action, and its civil-action number;</p>\n<p>(iii) command each person to whom it is directed to do the following\nat a specified time and place: attend and testify; produce designated\ndocuments, electronically stored information, or tangible things in\nthat person's possession, custody, or control; or permit the\ninspection of premises; and</p>\n<p>(iv) set out the text of Rule 45(d) and (e) .</p>\n<p>(B) Command to Attend a Deposition -Notice of the Recording Method. A\nsubpoena commanding attendance at a deposition must state the method\nfor recording the testimony.</p>\n<p>(C) Combining or Separating a Command to Produce or to Permit\nInspection; Specifying the Form for Electronically Stored Information.\nA command to produce documents, electronically stored information, or\ntangible things or to permit the inspection of premises may be\nincluded in a subpoena commanding attendance at a deposition, hearing,\nor trial, or may be set out in a separate subpoena. A subpoena may\nspecify the form or forms in which electronically stored information\nis to be produced.</p>\n<p>(D) Command to Produce; Included Obligations. A command in a subpoena\nto produce documents, electronically stored information, or tangible\nthings requires the responding person to permit inspection, copying,\ntesting, or sampling of the materials.</p>\n<p>(2) Issuing Court. A subpoena must issue from the court where the\naction is pending.</p>\n<p>(3) Issued by Whom. The clerk must issue a subpoena, signed but\notherwise in blank, to a party who requests it. That party must\ncomplete it before service. An attorney also may issue and sign a\nsubpoena if the attorney is authorized to practice in the issuing\nCourt.</p>\n<p>(4) Notice to Other Parties before Service. If the subpoena commands\nthe production of documents, electronically stored information, or\ntangible things or the inspection of premises before trial, then\nbefore it is served on the person to whom it is directed, a notice and\na copy of the subpoena must be served on each party.</p>\n<p>(b) Service.</p>\n<p>(1) By Whom and How; Tendering Fees. Any person who is at least 18\nyears old and not a party may serve a subpoena. Serving a subpoena\nrequires delivering a copy to the named person and, if the subpoena\nrequires that person's attendance, tendering the fees for 1 day's\nattendance and the mileage allowed by law. Fees and mileage need not\nbe tendered when the subpoena issues on behalf of the United States or\nany of its officers or agencies.</p>\n<p>(2) Service in the United States. A subpoena may be served at any\nplace within the United States.</p>\n<p>(3) Service in a Foreign Country. 28 U.S.C. §1783 governs issuing and\nserving a subpoena directed to a United States national or resident\nwho is in a foreign country.</p>\n<p>(4) Proof of Service. Proving service, when necessary, requires filing\nwith the issuing court a statement showing the date and manner of\nservice and the names of the persons served. The statement must be\ncertified by the server.</p>\n<p>(c) Place of Compliance.</p>\n<p>(1) For a Trial, Hearing, or Deposition. A subpoena may command a\nperson to attend a trial, hearing, or deposition only as follows:</p>\n<p>(A) within 100 miles of where the person resides, is employed, or\nregularly transacts business in person; or</p>\n<p>(B) within the state where the person resides, is employed, or\nregularly transacts business in person, if the person:</p>\n<p>(i) is a party, or a party's officer; or</p>\n<p>(ii) is commanded to attend a trial and would not incur subsantial\nexpense.</p>\n<p>(2) For Other Discovery.</p>\n<p>A subpoena may command:</p>\n<p>(A) production of documents, electronically stored information, or\ntangible things within 100 miles of where the person resides, is\nemployed, or regularly transacts business in person; and</p>\n<p>(B) inspection of premises at the premises to be inspected.</p>\n<p>(d) Protecting a Person Subject to a Subpoena; Enforcement.</p>\n<p>(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney\nresponsible for issuing and serving a subpoena must take reasonable\nsteps to avoid imposing undue burden or expense on a person subject to\nthe subpoena. The court for the district where compliance is required\nmust enforce this duty and impose an appropriate sanction - which may\ninclude lost earnings and reasonable attorney's fees - on a party or\nattorney who fails to comply.</p>\n<p>(2) Command to Produce Materials or Permit Inspection.</p>\n<p>(A) Appearance Not Required. A person commanded to produce documents,\nelectronically stored information, or tangible things, or to permit\nthe inspection of premises, need not appear in person at the place of\nproduction or inspection unless also commanded to appear for a\ndeposition, hearing, or trial.</p>\n<p>(B) Objections. A person commanded to produce documents or tangible\nthings or to permit inspection may serve on the party or attorney\ndesignated in the subpoena a written objection to inspecting, copying,\ntesting or sampling any or all of the materials or to inspecting the\npremises - or to producing electronically stored information in the\nform or forms requested. The objection must be served before the\nearlier of the time specified for compliance or 14 days after the\nsubpoena is served. If an objection is made, the following rules\napply:</p>\n<p>(i) At any time, on notice to the commanded person, the serving party\nmay move the court for the district where compliance is required for\nan order compelling production or inspection.</p>\n<p>(ii) These acts may be required only as directed in the order, and the\norder must protect a person who is neither a party nor a party's\nofficer from significant expense resulting from compliance.</p>\n<p>(3) Quashing or Modifying a Subpoena .</p>\n<p>(A) When Required. On timely motion, the court for the district where\ncompliance is required must quash or modify a subpoena that:</p>\n<p>(i) fails to allow a reasonable time to comply;</p>\n<p>(ii) requires a person to comply beyond the geographical limits\nspecified in Rule 45(c);</p>\n<p>(iii) requires disclosure of privileged or other protected matter, if\nno exception or waiver applies; or</p>\n<p>(iv) subjects a person to undue burden.</p>\n<p>(B) When Permitted. To protect a person subject to or affected by a\nsubpoena, the court for the district where compliance is required may,\non motion, quash or modify the subpoena if it requires:</p>\n<p>(i) disclosing a trade secret or other confidential research,\ndevelopment, or commercial information; or</p>\n<p>(ii) disclosing an unretained expert's opinion or information that\ndoes not describe specific occurrences in dispute and results from the\nexpert's study that was not requested by a party.</p>\n<p>(C) Specifying Conditions as an Alternative. In the circumstances\ndescribed in Rule 45(d)(3)(B), the court may, instead of quashing or\nmodifying a subpoena, order appearance or production under specified\nconditions if the serving party:</p>\n<p>(i) shows a substantial need for the testimony or material that cannot\nbe otherwise met without undue hardship; and</p>\n<p>(ii) ensures that the subpoenaed person will be reasonably\ncompensated.</p>\n<p>(e) Duties in Responding to a Subpoena.</p>\n<p>(1) Producing Documents or Electronically Stored Information. These\nprocedures apply to producing documents or electronically stored\ninformation:</p>\n<p>(A) Documents. A person responding to a subpoena to produce documents\nmust produce them as they are kept in the ordinary course of business\nor must organize and label them to correspond to the categories in the\ndemand.</p>\n<p>(B) Form for Producing Electronically Stored Information Not\nSpecified. If a subpoena does not specify a form for producing\nelectronically stored information, the person responding must produce\nit in a form or forms in which it is ordinarily maintained or in a\nreasonably usable form or forms.</p>\n<p>(C) Electronically Stored Information Produced in Only One Form. The\nperson responding need not produce the same electronically stored\ninformation in more than one form.</p>\n<p>(D) Inaccessible Electronically Stored Information. The person\nresponding need not provide discovery of electronically stored\ninformation from sources that the person identifies as not reasonably\naccessible because of undue burden or cost. On motion to compel\ndiscovery or for a protective order, the person responding must show\nthat the information is not reasonably accessible because of undue\nburden or cost. If that showing is made, the court may nonetheless\norder discovery from such sources if the requesting party shows good\ncause, considering the limitations of Rule 26(b)(2)(C). The court may\nspecify conditions for the discovery.</p>\n<p>(2) Claiming Privilege or Protection.</p>\n<p>(A) Information Withheld. A person withholding subpoenaed information\nunder a claim that it is privileged or subject to protection as\ntrial-preparation material must:</p>\n<p>(i) expressly make the claim; and</p>\n<p>(ii) describe the nature of the withheld documents, communications, or\ntangible things in a manner that, without revealing information itself\nprivileged or protected, will enable the parties to assess the claim.</p>\n<p>(B) Information Produced. If information produced in response to a\nsubpoena is subject to a claim of privilege or of protection as\ntrial-preparation material, the person making the claim may notify any\nparty that received the information of the claim and the basis for it.\nAfter being notified, a party must promptly return, sequester, or\ndestroy the specified information and any copies it has; must not use\nor disclose the information until the claim is resolved; must take\nreasonable steps to retrieve the information if the party disclosed it\nbefore being notified; and may promptly present the information under\nseal to the court where compliance is required for a determination of\nthe claim. The person who produced the information must preserve the\ninformation until the claim is resolved.</p>\n<p>(f) Transferring a Subpoena-Related Motion. When the court for the\ndistrict where compliance is required did not issue the subpoena, it\nmay transfer a motion under this rule to the issuing court if the\nperson subject to the subpoena consents or if the court finds\nexceptional circumstances. Then, if the attorney for the person\nsubject to the subpoena is authorized to practice in the court where\nthe motion was made, the attorney may file papers and appear on the\nmotion as an officer of the issuing court. To enforce its order, the\nissuing court may transfer the order to the court where the motion was\nmade.</p>\n<p>(g) Contempt. The court for the district where compliance is required</p>\n<ul>\n<li>and also, after a motion is transferred, the issuing court - may hold in contempt a person who, having been served, fails without\nadequate excuse to obey the subpoena or an order related to it.</li>\n</ul>\n</blockquote>\n", "score": 1 } ]

[ "united-states", "jurisdiction", "discovery" ]

[ { "answer_id": 93044, "body": "<p>Late to the party, but I'll answer anyways.</p>\n<p>In general, providers have a lot of wiggle room when sharing information with parents, on condition that the patient hasn't explicitly objected despite having opportunity to do so. HIPAA allows the provider to make a judgment call on whether such information can be shared without explicit consent:</p>\n<p>Quoting <a href=\"https://www.govinfo.gov/content/pkg/CFR-2003-title45-vol1/xml/CFR-2003-title45-vol1-sec164-510.xml\" rel=\"nofollow noreferrer\">Title 45 § 164.510</a> :</p>\n<blockquote>\n<p>(i) Obtains the individual's agreement;<br />\n(ii) Provides the individual with the opportunity to object to the disclosure, and the individual does not express an objection; or<br />\n(iii) <strong>Reasonably infers from the circumstances, based the exercise of professional judgment, that the individual does not object to the disclosure.</strong></p>\n</blockquote>\n<p>HHS does discuss disclosure to family members in <a href=\"https://www.hhs.gov/hipaa/for-professionals/faq/2069/under-hipaa-when-can-a-family-member/index.html\" rel=\"nofollow noreferrer\">their FAQ</a> :</p>\n<blockquote>\n<p>A covered entity is permitted to share information with a family member or other person involved in an individual’s care or payment for care as long as the individual does not object.</p>\n</blockquote>\n<p>A parent of a child who has just turned 18 is likely still somewhat involved in the child's care, so, absent either an objection or a reason to believe the child would object if asked, sharing is probably not a violation.</p>\n", "score": 3 } ]

[ "hipaa" ]

[ { "answer_id": 92530, "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<h3>Common-law remedy: expectation damages</h3>\n<p>The general measure of damages for breach of contract is <em>expectation damages</em>: &quot;the plaintiff will be entitled to the value of the promised performance&quot; (<em>Bank of America Canada v. Mutual Trust Co.</em>, <a href=\"https://canlii.ca/t/51s8#par26\" rel=\"nofollow noreferrer\">2002 SCC 43 at paragraph 26</a>); &quot;the purpose of expectation damages is to put the plaintiff in the same position it would have been <em>if the contract had been performed</em> (<em>Grandeur Homes Inc. v. Zeng</em>, <a href=\"https://canlii.ca/t/jgdx0#par19\" rel=\"nofollow noreferrer\">2021 ONSC 4005 at paragraph 19</a>). Unless Bob's contract specifies some other entitlement in the case of non-delivery, Bob will likely be awarded expectation damages.</p>\n<p>As a starting point, courts are likely to view the market value of the contract (e.g. £40) as the floor for expectation damages, but it is open to Bob to prove higher expectation damages by demonstrating the cost of obtaining a sufficiently similar alternative, while reasonably attempting to mitigate damages. That is: Bob should not simply announce a million-pound open bid for a similar phone, and Bob should not wait around if the price is increasing, but Bob could enter another reasonably competitive auction. Also, if Bob can prove losses incurred by not having the item in the meantime, those will also form part of the expectation damages.</p>\n<h3>Statute: Sales of Goods Acts essentially provide for expectation damages</h3>\n<p>Provincial Sale of Goods Acts also say this. See e.g. <a href=\"https://www.ontario.ca/laws/statute/90s01\" rel=\"nofollow noreferrer\">Ontario's</a>:</p>\n<blockquote>\n<p>The measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the seller’s breach of contract.</p>\n<p>Where there is an available market for the goods in question, the measure of damages is, in the absence of evidence to the contrary, to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.</p>\n</blockquote>\n", "score": 1 } ]

[ "england-and-wales", "any-jurisdiction", "ecommerce" ]

[ { "answer_id": 92555, "body": "<p>This is only a partial answer.</p>\n<h3>Types of deeds and what they mean</h3>\n<p>Normally, a related party transfer to a limited liability company would be done via a quitclaim deed (more often) or a bargain and sale deed (less often), rather than a warranty deed.</p>\n<p>The quitclaim deed transfers whatever you own with respect to the property but makes no promises that you own it or that it is free of liens and encumbrances. A quitclaim deed does not convey after-acquired property except when an exception to the general rule applies.</p>\n<p>A bargain and sale deed conveys what is described with a promise that the person executing the deed had not encumbered (e.g. mortgaged) or sold the property at any time after it came to be titled in their name that are not described in the deed, but does not promise that the person that they obtained the property from had good title or that their title was free of liens or encumbrances. A bargain and sale deed preserves title insurance policy protections from the previous owner, while a quitclaim deed does not. I don't know what affect a bargain and sale deed has with respect to after-acquired property.</p>\n<p>Warranty deeds are not normally used for this purpose. Warranty deeds are normally used in arms-length sales for fair market value between unrelated parties and are normally processed by title insurance companies who insure the buyer and anyone financing the buyer's purchase of the property with a mortgage against the possibility that the seller didn't have good title to the property sold or had undisclosed liens or encumbrances. A warranty deed contains a promise that the seller owns all real property described in the deed subject only to the liens and encumbrances stated in the deed. A warranty deed also conveys after-acquired property.</p>\n<h3>ACRIS</h3>\n<p>You <a href=\"https://www.nyc.gov/site/finance/taxes/property-recording-documents.page\" rel=\"nofollow noreferrer\">don't have to use the ACRIS system</a>. You can bring the document to the appropriate city office and have it recorded there on paper in person, rather than electronically.</p>\n<h3>Other forms you must file</h3>\n<blockquote>\n<p>Quitclaim deeds filed in New York City use Real Property Transfer\nReport (Form RP-5217NYC) and a Combined Real Estate Transfer Tax\nReturn, Credit Line Mortgage Certificate, and Certification of\nExemption from the Payment of Estimated Personal Income Tax (Form\nTP-584), both of which are filed with the county clerk.</p>\n</blockquote>\n<p>(<a href=\"https://www.legalzoom.com/articles/new-york-state-requirements-for-a-quitclaim-deed#:%7E:text=owns%20the%20property.-,How%20to%20file%20a%20quitclaim%20deed%20in%20New%20York,where%20the%20property%20is%20located.\" rel=\"nofollow noreferrer\">Source</a>)</p>\n<p>Tax form 584 has a box to check for transfers such as this one that result in no tax being owed. You check box &quot;f&quot; in two places and attach Schedule F. You may also need to fill out Schedule A.</p>\n<blockquote>\n<p><a href=\"https://assembly.state.ny.us/leg/?default_fld=&amp;bn=S01730&amp;term=2019&amp;Summary=Y&amp;Actions=Y&amp;Text=Y&amp;Committee&amp;nbspVotes=Y&amp;Floor&amp;nbspVotes=Y\" rel=\"nofollow noreferrer\">Section 1409(a) of the New York Tax Law</a> has been amended, effective\nSeptember 13, 2019, in relation to real property transfer tax returns\nof limited liability companies (LLC). . . .</p>\n<p>The amended legislation “requires the real property transfer tax\nreturn relating to residential property sold or purchased by a limited\nliability company to include information on the ownership of such\ncompany.” S1730 Sponsor Memo</p>\n<p>The amendment only applies to the conveyance of residential real\nproperty containing one- to four-family dwelling units when the\ngrantor or grantee is an LLC.</p>\n<p>If you are recording a deed:</p>\n<p>of a residential real property containing a one- to four- family\ndwelling unit, and</p>\n<p>a grantor or a grantee is an LLC</p>\n<p>If the grantor or grantee is an LLC and the member of the grantor or\ngrantee LLC is not a single natural person, then all members,\nmanagers, or any other authorized persons must be listed and included\non a separate page behind the TP-584. “Other” should be chosen as\nGrantor or Grantee type on the TP-584 in Schedule A.</p>\n<p>If a member of the LLC is another LLC or other business entity, all\nshareholders, directors, officers, members, managers, partners and\nauthorized persons of said LLC or business entity must be listed by\nname and business address until “full disclosure of ultimate ownership\nby natural persons is achieved.”</p>\n</blockquote>\n<p>(<a href=\"https://www.westchesterclerk.com/news/2019-news/396-notice-re-conveyances-with-llcs-as-grantors-or-grantees\" rel=\"nofollow noreferrer\">Source</a>) The language of the amended statute makes clear that the form must be used even when no tax is actually due in the transaction. See also a discussion of the impact of the 2019 law <a href=\"https://www.jdsupra.com/legalnews/amendment-to-nys-tax-law-affects-36462/\" rel=\"nofollow noreferrer\">here</a>.</p>\n<p>Incidentally, you do not need to file with the IRS Form 709, a gift tax form, because a transfer from the owners of real property to an LLC that they own is not a taxable gift. Instead it is considered to be a contribution to the capital of the LLC.</p>\n<h3>Questions left unanswered</h3>\n<p>I omit from this answer (for lack of time) the bottom line of all other forms, if any, must be completed and filed when a deed is recorded in New York City in a transfer of real estate for no consideration from its owners to an LLC owned by the owners. In particular, I leave unanswered the questions of whether you need to file the following forms:</p>\n<ul>\n<li><p>Affidavit of smoke detector</p>\n</li>\n<li><p>Tax form IT-2663 (for non-residents in our case)</p>\n</li>\n<li><p>Water utility form</p>\n</li>\n</ul>\n<p>I suspect, but do not know that the smoke detector and water utility forms may be New York City specific.</p>\n<p>I also do not analyze the filing fees due, but <em>see</em> <a href=\"https://www.tax.ny.gov/research/property/assess/sales/deedevents.htm\" rel=\"nofollow noreferrer\">this chart</a>. The basic fee for filing a quitclaim deed to residential real estate is $125.</p>\n<p>(FWIW, for comparison's sake, <a href=\"https://www.arapahoegov.com/1423/Recording-Fees\" rel=\"nofollow noreferrer\">in Colorado</a>, the filing fee is $13 plus $5 per page, LLC ownership does not have to be disclosed, one information form similar to Form 584 in NY has to be filed, but doesn't prevent a deed from being recorded and isn't a matter of public record, affidavits related to smoke detectors don't have to be filed, and utility transfers are handled outside the real estate recording system. Prior to a transfer out of an LLC, in Colorado, one has to file a &quot;Statement of Authority&quot; which states under oath who is allowed to sign a deed from the LLC but not who owns the LLC.)</p>\n", "score": 2 } ]

[ "tax-law", "real-estate", "limited-liability-company", "new-york-city" ]

[ { "answer_id": 93288, "body": "<p>The method of proposing an amendment by way of Convention <a href=\"https://constitution.congress.gov/browse/essay/artV-3-1/ALDE_00013049/\" rel=\"noreferrer\">has never been used</a>. Thus, procedural aspects such as how members of such a convention would be chosen have also not been settled:</p>\n<blockquote>\n<p>In the modern era, scholars have debated various issues, including: (1) <strong>how delegates to the convention should be chosen</strong>; (2) whether Congress, state legislatures, or the delegates should set rules of procedure for the convention; (3) the vote threshold would be required to propose an amendment in convention; and (4) how voting rights on a proposed amendment should be apportioned among the states.</p>\n<p>(Constitution Annotated, &quot;<a href=\"https://constitution.congress.gov/browse/essay/artV-3-3/ALDE_00013051/\" rel=\"noreferrer\">ArtV.3.3 Proposals of Amendments by Convention</a>&quot;)</p>\n</blockquote>\n", "score": 12 }, { "answer_id": 93289, "body": "<p>As noted, we don't know. What do we know?</p>\n<p>Basically, Congress would have to specify the procedure for selecting delegates, or at least a procedure for establishing how to select delegates, in the act calling the convention. (This is presumably why the constitution requires congress to call the convention when two thirds of the states ask for one rather than simply saying that a convention will happen when two thirds of the states want one.)</p>\n<p>If the applications of the two thirds of states included identical proposed procedural rules for the convention then Congress would probably use those rules, but it might not.\nFor example, if three fourths of the states were firmly controlled by one party, giving that party the power to ratify amendments unilaterally, while congress was controlled by another party, and the proposed procedural rules would allow the first party to control the convention, then congress might decide to alter the rules).</p>\n<p>So, to answer your question:</p>\n<blockquote>\n<p>How would the members of such a convention be chosen?</p>\n</blockquote>\n<p>However congress specified when calling the convention.</p>\n", "score": 7 } ]

[ "us-constitution" ]

[ { "answer_id": 73697, "body": "<p><strong>Legal Theory and Philosophy of Law</strong></p>\n<p>There are two different meanings of the word <strong>Jurisprudence</strong></p>\n<ol>\n<li><p>A heavy word for the study or knowledge of the law. If a judge or law lecturer were to refer to &quot;the role of freedom of contract in our jurisprudence&quot; for example, this is the sense intended (this is the sense @ohwilleke refers to in his answer).</p>\n</li>\n<li><p>The second meaning - and the more usual meaning nowadays, particularly in in academic circles (I note you are studying law so this is probably the meaning you are asking about) - could be described as the philosophy of law.</p>\n</li>\n</ol>\n<p>In <em>Legal Philosophies</em> (1997) J W Harris says (p.1)</p>\n<blockquote>\n<p>Jurisprudence is a ragbag. Into it are cast all kinds of general\nspeculations about the law. What is it for? What does it achieve?\nShould we value it? How is it to be improved? Is it dispensable? Who\nmakes it? Where do we find it? What is its relation to morality, to\njustice, to politics, to social practices, or to naked force? Should\nwe obey it? Whom does it serve? These are the questions of which\ngeneral jurisprudence is comprised. They can be ignored, but they will\nno go away...</p>\n<p>Jurisprudence has to entrench on [the disciplines of moral and\npolitical philosophers] at many points, as well as upon those of\nsocial and political theory. It is a scavenger, as well as a ragbag;\nhaving no perimeter to its field of enquiry, save that what is studied\nmust have a bearing on some general speculation about law.</p>\n<p>If jurisprudence has a heartland all its own, it is <strong>legal theory</strong>\nMuch discussion about moral claims of the law (and moral claims on the\nlaw) takes the concept of law itself for granted. Yet, answers to such\nquestions may turn on what picture of law we have. Legal theory asks:\nWhat is the nature of law (everywhere, or just in the modern state)?</p>\n</blockquote>\n<p>In a three year English undergraduate law degree, Jurisprudence has traditionally been studied as a compulsory module in the third year which concentrates on <strong>legal theory</strong>. One thing students immediately notice is that the exact scope and definition of jurisprudence is disputed (which can be discomforting since all the other modules they have hitherto studied - Contract, Tort, Crime, etc- have clear definitions). This uncertainty is exacerbated by the fact that legal theories which come under the umbrella term of <strong>legal positivism</strong> have as one of their central themes the proposition that jurisprudence should only be concerned with <strong>positive law</strong> and that legal theory need not (and should not) look outside to ideas of morality or <strong>natural law</strong>.\nIn other words not only do different legal theories have different explanations of the phenomenon of law, but they actually disagree about the scope of what it is they are supposed to be explaining!</p>\n<p>Traditionally jurists thought of God as the ultimate law-giver whose laws were written on human hearts (conscience). This is the &quot;natural law&quot; which human legislators add to by creating &quot;positive law&quot;. For example murder is contrary to natural law but you need human laws to define the different categories of homicide, the prescribed penalties, and the procedure by which accusations are tried and decided. You also need human laws to define the circumstances in which a contract comes into being etc.</p>\n<p>Note: <strong>positive</strong> in used in its old original meaning of &quot;laid down&quot; as distinct from natural. It is nothing to do with the modern meaning of <strong>positive</strong> as being the opposite of <strong>negative</strong>.</p>\n<p>William Blackstone, in Vol. 1, Commentaries on the Laws of England (1765) Page 27, wrote:</p>\n<blockquote>\n<p>This will of his maker is called the law of nature. For as God, when\nhe created matter, and endued it with a principle of mobility,\nestablished certain rules for the perpetual direction of that motion;\nso, when he created man, and endued him with freewill to conduct\nhimself in all parts of life, he laid down certain immutable laws of\nhuman nature, whereby that freewill is in some degree regulated and\nrestrained, and gave him also the faculty of reason to discover the\npurport of those laws. Considering the creator only as a being of\ninfinite power, he was able unquestionably to have prescribed whatever\nlaws he pleased to his creature, man, however unjust or severe. But as\nbe is also a being of infinite wisdom, he has laid down only such laws\nas were founded in those relations of justice, that existed in the\nnature of things antecedent to any positive precept. These are the\neternal, immutable laws of good and evil, to which the creator himself\nin all his dispensations conforms; and which he has enabled human\nreason to discover, so far as they are necessary for the conduct of\nhuman actions. Such among others are these principles: that we should\nlive honestly, should hurt nobody, and should render to every one his\ndue; to which three general precepts Justinian1 has reduced the whole\ndoctrine of law. This will of his maker is called the law of nature.\nFor as God, when he created matter, and endued it with a principle of\nmobility, established certain rules for the perpetual direction of\nthat motion; so, when he created man, and endued him with freewill to\nconduct himself in all parts of life, he laid down certain immutable\nlaws of human nature, whereby that freewill is in some degree\nregulated and restrained, and gave him also the faculty of reason to\ndiscover the purport of those laws. Considering the creator only as a\nbeing of infinite power, he was able unquestionably to have prescribed\nwhatever laws he pleased to his creature, man, however unjust or\nsevere. But as be is also a being of infinite wisdom, he has laid down\nonly such laws as were founded in those relations of justice, that\nexisted in the nature of things antecedent to any positive precept.\nThese are the eternal, immutable laws of good and evil, to which the\ncreator himself in all his dispensations conforms; and which he has\nenabled human reason to discover, so far as they are necessary for the\nconduct of human actions. Such among others are these principles: that\nwe should live honestly, should hurt nobody, and should render to\nevery one his due; to which three general precepts Justinian has\nreduced the whole doctrine of law....</p>\n<p>Upon these two foundations, the law of nature and the law of\nrevelation, depend all human laws; that is to say, no human laws\nshould be suffered to contradict these. There are, it is true a great\nnumber of indifferent points, in which both the divine law and the\nnatural leave a man at his own liberty; but which are found necessary\nfor the benefit of society to be restrained within certain limits. And\nherein it is that human laws have their greatest force and efficacy;\nfor, with regard to such points as are not indifferent, human laws are\nonly declaratory of, and act in subordination to, the former. To\ninstance in the case of murder; this is expressly forbidden by the\ndivine, and demonstrably by the natural law; and from these\nprohibitions arises the true unlawfulness of this crime. Those human\nlaws that annex a punishment to it, do not at all increase its moral\nguilt, or superadd any fresh obligation in foro conscientiae [in the\ncourt of conscience] to abstain from its perpetration. Nay, if any\nhuman law should allow or enjoin us to commit it, we are bound to\ntransgress that human law, or else we must offend both the natural and\nthe divine. But with regard to matters that are in themselves\nindifferent, and are not commanded or forbidden by those superior\nlaws; such, for instance, as exporting of wool into foreign countries;\nhere the inferior legislature has scope and opportunity to interpose,\nand to make that action unlawful which before was not so...</p>\n</blockquote>\n<p>In <em>the Province of Jurisprudece Determined</em> (1832) John Austin wrote at length about both natural law and positive law and sought to draw a line of distinction between them:</p>\n<blockquote>\n<p>AS one of the Law-Professors at the University of London, I planned\nand partly delivered a systematical Course of Lectures on General or\nAbstract Jurisprudence. In the ten lectures delivered at the beginning\nof my Course, I distinguished <strong>positive law (the appropriate matter of\njurisprudence)</strong> from various objects with which it is connected by\nresemblance, and from various other objects to which it is allied by\nanalogy. Out of those ten discourses, I have made the treatise which I\nnow submit to the public, and which I venture to entitle “the\nprovince of jurisprudence determined.”</p>\n<p>Determining the characters of positive laws, I determine implicitly\nthe notion of sovereignty, with the implied or correlative notion of\nindependent political society. For the essential difference of a\npositive law (or the difference that severs it from a law which is not\na positive law) may be stated generally in the following manner.\nEvery positive law, or every law simply and strictly so called, is set\nby a sovereign person, or a sovereign body of persons to a member or\nmembers of the independent political society wherein that person or body &gt; is sovereign or supreme.\nOr (changing the phrase) it is set by a monarch, or sovereign number,\nto a person or persons in a state of subjection to its author. To\nelucidate the nature of sovereignty, and of the independent political\nsociety that sovereignty implies, I examine various topics which I\narrange under the following heads: First, the possible forms or shapes\nof supreme political government; second, the limits, real or\nimaginary, of supreme political power; thirdly, the origin or causes\nof political government and society. Examining those various topics,\nI complete <strong>my description of the limit or boundary by which positive\nlaw is severed from positive morality. For I distinguish them at\ncertain points whereat they seemingly blend, or whereat the line which\ndivides them is not easily perceptitible.</strong></p>\n</blockquote>\n<p>Austin's account of positive law (essentially a command of a sovereign accompanied by a threat of sanction for non-compliance) has been criticised as being simplistic and of failing to provide an adequate explanation of law and legal systems, but to be fair to Austin he never claimed that his theory of positive law could alone explain what happens in legal systems. He recognised the influence of natural law/morality as part of an explanation. He simply wished to define the limits of Jurispudence as an academic subject, which he did narrowly.</p>\n<p>Some jurists, however, have subsequently sought to produce theories of law which seek to explain what the phenomenon of law is, and how it works, based <strong>only</strong> on positive law. Such theorists are called &quot;positivists&quot; and their school of thought is called <strong>legal positivism</strong>.</p>\n<p>In 1960 Hans Kelsen published <em>Reine Rechtslehre</em> which was translated into English in 1967 as <em>The Pure Theory of Law</em>. As the word <strong>pure</strong> in the title suggests Kelsen's theory is in the <strong>legal positivism</strong> school of thought - i.e. it seeks to explain law and legal systems by reference <strong>only</strong> to positive law.</p>\n<p>Kelsen himself was a moral relativist but not all legal positivists are necessarily atheists or moral relativists. Some may personally think that natural law/morality is important but nevertheless think that the discipline of law should be &quot;self contained&quot; and should be capable of being completely and satisfactorily explained without brining natural law/morality etc. into it.</p>\n<p>Natural lawyers critique the theories of legal positivism by saying that they are incomplete as they leave so much unexplained. Legal Positivists reply that their theories have a restricted scope precisely because everything outside the scope of the theory is not really law at all and so does not need to be explained by the theory.</p>\n<p>So you can see that the definition of Jurisprudence is rather woolly but <strong>philosophy of law with particular emphasis on competing theories of what the phenomenon of law actually is</strong> might be a short rough definition to convey the general idea of <strong>Jurisprudence</strong> as the word in generally used today.</p>\n", "score": 5 }, { "answer_id": 60222, "body": "<h2>Jurisprudence is the philosophy of law</h2>\n<p>Jurisprudence is not the same as law just like metaphysics is not physics and theology is not religion.</p>\n<p>The study of law is specific to a specific legal system, like Greek law, English law, Sharia law etc. Jurisprudence is the study of the general principles behind and between these specific legal traditions.</p>\n<p>For example, consider the issue of theft. What the various types of theft are, the elements involved in arresting, charging, convicting and punishing someone for theft and the penalties and redress involved are all legal questions. Whether theft should be a crime and when, how theft is treated in different parts of the world and what is theft anyway are all issues of jurisprudence.</p>\n", "score": 3 }, { "answer_id": 73711, "body": "<p>It depends upon context.</p>\n<p>Often, the word &quot;jurisprudence&quot; is used to describe the customary way that a particular judge, or a particular legal body, or a particular legal system, has historically treated a particular legal issue.</p>\n<p>So, you might talk about &quot;Judge Learned Hand's jurisprudence in tort law&quot;, or &quot;U.S. Supreme Court procedural jurisprudence&quot;, or &quot;Dog bite jurisprudence in the United States legal system.&quot;</p>\n<p>The implication of framing something as an issue of jurisprudence is that a lot of superficially isolated legal decisions or laws may be united and better understood in the context of some overriding principle or theme that illuminates why the law whose jurisprudence is being discussed has the detailed elements that it does. In other words, they are united by an overall legal theory or philosophy of law.</p>\n<p>For example, the jurisprudence of financial systems payment fraud can be summed up with the concept that among non-criminal third-parties, the loss will be assigned by the legal system to the firm or person that had the most direct interaction with the person who perpetrated the fraud. The applicable legal rules never say this outright, and instead deal at a much more granular level with particular specific fact patterns. But the animating theme that can be inferred from looking at those detailed rules as a whole and trying to figure out how they fit together in order to interpret them if they are ambiguous in a particular case is the one expressed above as a description of the jurisprudence of this area of law.</p>\n", "score": 3 } ]

[ "legal-concepts", "civil-legal-system", "jurisprudence", "theory-of-law", "natural-law" ]

[ { "answer_id": 92676, "body": "<p>At this point, since it's been more than four weeks since the order was issued, you are able to enforce the order. The delay is just to allow appeals or corrections. It is up to you to arrange enforcement, so at a high level your choices are to do nothing, or to proceed. If you do nothing then you will not get any money. If you proceed then you will spend more money, which you may or may not get back, as with the original sum.</p>\n<p>The Scottish procedure is conceptually similar to the English one that is more normally described in online resources, but the words are different. To decode things a bit,</p>\n<ul>\n<li>You are now trying to proceed with &quot;diligence&quot;, which means enforcing the court order. The court itself is not involved, having moved on to other things.</li>\n<li>There are several ways the money could come to you, such as &quot;arrestment&quot;, &quot;attachment&quot; and &quot;inhibition&quot;. Or, X might give you the money voluntarily.</li>\n<li>The next steps must be taken by a &quot;sheriff officer&quot; on your instruction. Despite the name being similar to &quot;sheriff&quot; as in &quot;Sheriff Court&quot;, these officers are private practitioners who are licensed by the courts to pursue debtors.</li>\n</ul>\n<p>You can use <a href=\"https://smaso.org.uk\" rel=\"noreferrer\">https://smaso.org.uk</a> to find a sheriff officer you like. Most likely you will be able to give them all the information online. Then, they will go ahead with the first step, formally serving a &quot;charge for payment&quot; on X. Then, X has 14 days to come up with the money; if they don't, then the sheriff officer can proceed with more drastic steps. They will be able to advise based on the particular circumstances, but some broad possibilities are &quot;arrestment&quot; of X's money directly from their bank, or &quot;attachment&quot;, which is seizure of X's property to be auctioned off. If X is an employed person (rather than a business, say) then you might also arrange &quot;arrestment of earnings&quot; whereby the employer diverts a sum from X's pay to you, for whatever necessary period of time. All these come with their own rules and timescales, including processes if X's bank or employer does not comply.</p>\n<p>The sheriff officer will have to be paid for all this. The usual way is that you pay them up-front, and then that fee can be added to the diligence. All officers charge the same rates, but the fee schedule is a bit complicated depending on exactly which services are involved, how long it takes the officer to do the work, and their travel time. It is up to you to make the decisions about how much you want to spend in pursuit of the money, also taking into account the likelihood that you will actually get it. For the sheriff officer, since this is a completely routine part of the job, they will be able to give you their impression of the range of outcomes based on the specifics of X's situation.</p>\n", "score": 7 } ]

[ "united-kingdom", "small-claims-court", "scotland" ]

[ { "answer_id": 93224, "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>The simple answer is the procedures adopted under the Classified Information Procedures Act. Under Personnel Security, they say that:</p>\n<blockquote>\n<p>No person appointed by the court or designated for service therein will be given access to any classified information in the custody of the court, unless such person has received the appropriate security clearance and unless access to such information is necessary for the performance of an official function. A security clearance for justices and other Article III judges is not required.</p>\n</blockquote>\n<p>The true answer is a bit more involved. Article III judges (essentially meaning life-tenured federal judges) are constitutional officers. Their office and its basic role is laid out by the Constitution. On the other hand, security clearances are an administrative thing under the basically unreviewable control of the executive branch. It’s not appropriate to deny a constitutional officer access to information they need to carry out their constitutional role unless the executive branch agrees that they’re suitable.</p>\n", "score": 35 }, { "answer_id": 93218, "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>&quot;Secret&quot; and &quot;Top Secret&quot; are defined by the <a href=\"https://security-guidance.service.justice.gov.uk/government-classification-scheme/\" rel=\"noreferrer\">Government Security Classification (GSC)</a>, and certain senior judges are cleared, just like everyone else who meets the following criteria, to access the material or the assets in a process called <a href=\"https://www.gov.uk/government/publications/united-kingdom-security-vetting-clearance-levels/national-security-vetting-clearance-levels#developed-vetting-dv\" rel=\"noreferrer\">Developed Vetting (DV)</a>:</p>\n<blockquote>\n<p>Individuals who are to be employed in posts which:</p>\n<ul>\n<li>require them to have frequent and uncontrolled access to TOP SECRET assets or require any access to TOP SECRET codeword material</li>\n</ul>\n<p>And for individuals who:</p>\n<ul>\n<li><p>while not in such posts, will be in a position to directly or indirectly bring about the same degree of damage.</p>\n</li>\n<li><p>require frequent and uncontrolled access to Category I nuclear material</p>\n</li>\n<li><p>require access to certain levels of classified material originating from another country or international organisation.</p>\n</li>\n</ul>\n</blockquote>\n<p>Although <a href=\"https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/5?timeline=false\" rel=\"noreferrer\">Article 6</a> of The European Convention on Human Rights (ECHR), incorporated in to law by the Human Rights Act 1998, states:</p>\n<blockquote>\n<p>... everyone is entitled to a fair and <strong>public hearing</strong> ... [<em>and</em>] Judgment shall be <strong>pronounced publicly</strong> ...</p>\n</blockquote>\n<p>To preserve secrecy and to exclude or restrict access to those not DV cleared, Article 6 empowers the judge to hold some, or very rarely all, of the trial <a href=\"https://en.wikipedia.org/wiki/In_camera\" rel=\"noreferrer\"><em>in camera</em></a> as...</p>\n<blockquote>\n<p>...the press and public may be excluded from all or part of the trial in the interest of [...] <strong>national security</strong></p>\n</blockquote>\n<p>This is supplemented by <a href=\"https://www.legislation.gov.uk/uksi/2020/759/rule/6.4?timeline=false\" rel=\"noreferrer\">Rule 6.4</a> of the Criminal Procedure Rules:</p>\n<blockquote>\n<p>This rule applies where the court can—</p>\n<p>(a) impose a restriction on—</p>\n<ul>\n<li><p>(i) reporting what takes place at a public hearing, or</p>\n</li>\n<li><p>(ii) public access to what otherwise would be a public hearing; or</p>\n</li>\n</ul>\n<p>(b) withhold information from the public during a public hearing.</p>\n</blockquote>\n<hr />\n<p>_{Although tagged <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>, I have answered in line with: <em>we expect and encourage answers dealing with other jurisdictions ... please tag your answer using the tag markdown: [tag: some-tag]</em>&quot; from the <a href=\"https://law.stackexchange.com/help/on-topic\">Help centre</a>}</p>\n", "score": 12 }, { "answer_id": 93249, "body": "<p>This is probably a reference to <a href=\"https://www.law.cornell.edu/uscode/text/50/3163\" rel=\"noreferrer\">50 USC 3163</a>:</p>\n<blockquote>\n<p>Except as otherwise specifically provided, the provisions of this subchapter shall not apply to the President and Vice President, Members of the Congress, Justices of the Supreme Court, and Federal judges appointed by the President.</p>\n</blockquote>\n<p>&quot;This subchapter&quot; is 50 USC Chapter 44 Subchapter VI, encompassing sections 3161-3164. Especially <a href=\"https://www.law.cornell.edu/uscode/text/50/3161\" rel=\"noreferrer\">Section 3161</a> which imposes the rule that access to classified information should only be granted to those who have been cleared based on an &quot;appropriate background investigation&quot;. So by Section 3163, judges and members of Congress do not require a clearance in order to access such information.</p>\n<p>That isn't the same as having a <em>right</em> to see all such information. A federal judge can't, as far as I know, arbitrarily demand access to some random classified document. But when, for instance, classified documents appear as evidence in cases they preside over, lacking a clearance isn't a hindrance to access.</p>\n", "score": 8 }, { "answer_id": 93275, "body": "<p>Only one of the other answers even brushes against this part of the question, so I'll focus on that, since it's really critical to fully answering the whole question.</p>\n<blockquote>\n<p>Clearly it can't be the case that every federal judge has the right to see all classified material no matter what classification it has (eg Top Secret/SCI etc.)</p>\n</blockquote>\n<p>No, there's this idea of &quot;need to know&quot; where it doesn't matter what classification someone is cleared to see, if they don't have a specific and real need to see the information, they won't get access to it.</p>\n<blockquote>\n<p>A determination within the executive branch in accordance with directives issued pursuant to this order that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function.</p>\n</blockquote>\n<p><a href=\"https://csrc.nist.gov/glossary/term/need_to_know\" rel=\"nofollow noreferrer\">https://csrc.nist.gov/glossary/term/need_to_know</a></p>\n<p>The above definition comes from a technology standpoint, but it's SOP throughout the whole US government, including the military.</p>\n<p>Another way to say it is &quot;This principle states that a user shall only have access to the information that their job function requires, regardless of their security clearance level or other approvals.&quot;</p>\n<p><a href=\"https://techcommunity.microsoft.com/t5/azure-sql-blog/security-the-need-to-know-principle/ba-p/2112393\" rel=\"nofollow noreferrer\">https://techcommunity.microsoft.com/t5/azure-sql-blog/security-the-need-to-know-principle/ba-p/2112393</a></p>\n<p>The reason for that is risk management. &quot;When access to covered data is broader than what is required for legitimate purposes, there is unnecessary risk of an attacker gaining access to the data.&quot;</p>\n<p><a href=\"https://security.berkeley.edu/need-know-access-control-guideline\" rel=\"nofollow noreferrer\">https://security.berkeley.edu/need-know-access-control-guideline</a></p>\n<p>Generally speaking, a judge doesn't need to know all data covered by security clearances, so they don't get access to all that data. So, no, they can't just &quot;walk up&quot; to a facility with secured documents and demand to see anything they want. However, if there is a requirement for them to access classified data, they can get access through the processes and from the legal rules described by the other answers.</p>\n", "score": 4 } ]

[ "united-states", "rules-of-court", "judge", "secret" ]

[ { "answer_id": 93246, "body": "<h2>If the situation described is accurate, then maybe</h2>\n<p>First, let's deal with the implicit assumption that sales tax is not payable on gifts. Whether that is true or not depends on the law in your jurisdiction.</p>\n<p>For example, in <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> there is no Goods and Services Tax (GST) payable on a gift because a gift is not a &quot;supply&quot; under the law. Technically, a value-added tax like the GST is not a sales tax but close enough.</p>\n<p>However, exchanging a &quot;gift&quot; for something of value (airline points, for example) is not a gift.</p>\n<p>Of course, Australian States and Territories levy Stamp Duty on the transfer of a vehicle's registration, and this is calculated on the sale price or the market price <em>whichever is the greater</em>. Also, technically, that's not a sales tax either.</p>\n<h2>If it's a tax avoidance scheme, then no <em>and</em> it's a crime</h2>\n<p>Assuming that there is no sales tax payable on a gift; if John and David entered into this arrangement (not a contract because of its illegal purpose) to avoid tax, then tax is payable <em>and</em> they are now criminals.</p>\n<p>If the relevant tax authority learns what happened and decides to investigate, then John and David might have some explaining to do. If David can show that he has routinely given John large cash gifts on John's birthday, then they may convince the authority not to prosecute. If they can't, then they get to try to convince a judge.</p>\n<p>It is not atypical for tax law to reverse the onus of proof: the government doesn't have to prove tax is payable, John and Dave have to prove it isn't.</p>\n", "score": 12 }, { "answer_id": 93245, "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<blockquote>\n<p>If you receive a vehicle as a gift you must pay [provincial sales tax] on the fair market value of the\nvehicle, unless a specific exemption applies.</p>\n<p>(British Columbia, &quot;<a href=\"https://www2.gov.bc.ca/assets/gov/taxes/sales-taxes/publications/pst-308-vehicles.pdf\" rel=\"noreferrer\">PST on Vehicles</a>&quot;, p. 10)</p>\n</blockquote>\n<p>There are exemptions for inheritance, relatives, charities, lotteries, and transfers during property division during dissolution of a marriage or marriage-like relationship.</p>\n<p><a href=\"/questions/tagged/saskatchewan\" class=\"post-tag\" title=\"show questions tagged &#39;saskatchewan&#39;\" aria-label=\"show questions tagged &#39;saskatchewan&#39;\" rel=\"tag\" aria-labelledby=\"tag-saskatchewan-tooltip-container\">saskatchewan</a></p>\n<p>Since the vehicle is worth $5,000 or less, the transfer is exempt from taxation (Saskatchewan, &quot;<a href=\"https://www.sets.saskatchewan.ca/rptp/wcm/connect/d822db11-55f6-4cc9-a5da-440119e10884/PST-58+Used+Goods.pdf?MOD=AJPERES&amp;CACHEID=ROOTWORKSPACE-d822db11-55f6-4cc9-a5da-440119e10884-mDb1bE7\" rel=\"noreferrer\">Information Bulletain: PST-58</a>&quot;).</p>\n<p><a href=\"/questions/tagged/nova-scotia\" class=\"post-tag\" title=\"show questions tagged &#39;nova-scotia&#39;\" aria-label=\"show questions tagged &#39;nova-scotia&#39;\" rel=\"tag\" aria-labelledby=\"tag-nova-scotia-tooltip-container\">nova-scotia</a></p>\n<p>If you receive a vehicle as a gift, you will generally have to pay tax based on the fair value of the vehicle determined using the <a href=\"https://www.canadianredbook.com/\" rel=\"noreferrer\">Canadian Red Book</a> listing or a review by the Provincial Tax Commission (Nova Scotia, &quot;<a href=\"https://beta.novascotia.ca/sites/default/files/documents/1-1872/tax-privately-purchased-vehicles-what-you-need-know-en.pdf\" rel=\"noreferrer\">Tax on Privately Purchased Vehicles</a>&quot;).</p>\n", "score": 6 }, { "answer_id": 93279, "body": "<p>As you likely expect, most locales have laws to handle these sorts of attempted workarounds. In <a href=\"/questions/tagged/texas\" class=\"post-tag\" title=\"show questions tagged &#39;texas&#39;\" aria-label=\"show questions tagged &#39;texas&#39;\" rel=\"tag\" aria-labelledby=\"tag-texas-tooltip-container\">texas</a> for example (<a href=\"https://comptroller.texas.gov/taxes/publications/96-254/gift.php\" rel=\"nofollow noreferrer\">source</a>), transferring a motor vehicle for $0 is considered a &quot;gift&quot; if the recipient is an immediate family member, estate, or non-profit organization. Such a gift is subject to a gift tax (currently $10). The recipient is merely a friend in your scenario, so the following rule would apply:</p>\n<blockquote>\n<p>The transfer of a motor vehicle for no consideration, that does\nnot qualify as a gift, is taxed as a sale and SPV procedures may\napply.</p>\n</blockquote>\n<p>SPV is the &quot;<a href=\"https://comptroller.texas.gov/taxes/publications/96-254/spv.php\" rel=\"nofollow noreferrer\">Standard Presumptive Value</a>&quot;. You can think of this as the average selling price for that specific vehicle. So in other words, you'll have to pay the same taxes as if the car was sold for a fair price.</p>\n<p>&quot;Hey, that's easy to get around as well. I'll sell it for $10, that way it's not a transfer 'for no consideration'!&quot;</p>\n<p>When you buy a vehicle, the law says you pay tax on &quot;the greater of the sales price or 80 percent of the vehicle’s SPV&quot;. If you try to cheat the tax man by selling the vehicle for an unreasonably low price, you'll be taxed based on the SPV instead. If the car you're buying is in awful condition and its actual value is much less than the SPV, you can avoid being taxed on the greater amount by presenting &quot;a valid certified appraisal&quot; that confirms the vehicle's fair market price.</p>\n", "score": 4 }, { "answer_id": 93286, "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<h2>The IRS</h2>\n<p>The IRS <a href=\"https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes\" rel=\"nofollow noreferrer\">has &quot;gift taxes&quot;</a>. Generally the donor pays, but there are fairly large exemptions.</p>\n<p>However, you are using <em>reciprocal gifts</em> to conceal what's actually a barter. (well a barter with money on one leg is technically a sale). IRS casts a wide net looking for such transactions: to show the extremes to which they go, consider three brothers each with a trust fund for their children. The brothers wanted to gift six times the legally exempt amount for in-family giving... so they made a pact for each brother to give to all three trust funds, and their spouses to do the same. IRS objected and <a href=\"http://archives.cpajournal.com/2000/0200/nv7200.html\" rel=\"nofollow noreferrer\">tax court sided with IRS</a>. So no, the illusionary gifts will not be treated as such, and will be treated as a barter or sale.</p>\n<p>At the Federal level, the sale would not be a taxable event: First, <em>buying things</em> doesn't create income tax. The seller would only need to pay income tax on the net profits, meaning sale price minus what they paid for it. And since cars generally decline in value, they probably have a higher cost basis than they sold it for, so no tax owed.</p>\n<p>As such, it is unlikely that the IRS would take an interest in this transaction - the juice isn't worth the squeeze... <strong>But don't confuse &quot;no penalty&quot; with &quot;lawful&quot;</strong>. The &quot;fake gifts&quot; equating to a barter or sale is absolutely not lawful.</p>\n<h2>The states</h2>\n<p>It will matter to the state on a couple of levels. First, most states will want to collect <em>sales tax</em>, and this process is generally built right into the vehicle titling and registration system. Second, in many states the registration fee is based on the sales price. In both these cases, the state will have a stake, and will see things the same way the IRS does. So they certainly will see this as an attempt at tax fraud, and they will consider the juice to be worth the squeeze.</p>\n", "score": 0 } ]

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

[ { "answer_id": 93212, "body": "<p>No. Double jeopardy would not apply.</p>\n<p>You can't be prosecuted twice for committing the same (or a lesser included crime) arising from the same incident twice.</p>\n<p>If you commit a new crime you can be prosecuted for that new offense, even if you were acquitted of committing a similar offense at a different time and place in the past.</p>\n", "score": 7 }, { "answer_id": 93211, "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<h3>The second prosecution could proceed</h3>\n<p>The principle against double jeopardy, reflected in <a href=\"https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art11h.html\" rel=\"nofollow noreferrer\">s. 11(h) of the <em>Charter</em></a> and in the special plea of <em>autrefois acquit</em> only precludes a successive prosecution for the very same wrong or &quot;delict.&quot;</p>\n<p>A person may not be placed twice in jeopardy &quot;upon the same facts&quot; (<a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/4274/index.do\" rel=\"nofollow noreferrer\"><em>Kienapple v. The Queen</em>, [1975] 1 S.C.R. 729</a>). A new instance of the offence is not &quot;the same facts&quot;: &quot;<strong>offenders have always been exposed to criminal liability for each occassion on which they have transgressed the law</strong>&quot; (<a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/174/index.do\" rel=\"nofollow noreferrer\"><em>R. v. Prince</em>, [1986] 2 S.C.R. 480</a>).\\</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>I agree with <a href=\"https://law.stackexchange.com/a/93212/46948\">ohwilleke's statement</a> of U.S. law; I disagree with paragraphs 2 and 3 of <a href=\"https://law.stackexchange.com/a/93222/46948\">Acccumulation's answer</a>. A successive prosecution of a lesser or a greater included offence <em>is</em> prohibited by the rule against double jeopardy. See <a href=\"https://supreme.justia.com/cases/federal/us/432/161/\" rel=\"nofollow noreferrer\"><em>Brown v. Ohio</em>, 432 U.S. 161 (1977)</a>, which was precisely on this issue.</p>\n", "score": 5 }, { "answer_id": 93222, "body": "<p>Double Jeopardy prohibits prosecution on the same facts. So if one prosecution is based on you robbing a convenience store on Monday, and another prosecution is based on you robbing a convenience store on Tuesday, then Double Jeopardy doesn't prohibit both prosecutions.</p>\n<p>This then is a bit of a loophole, as if there's a law that says that it's illegal to rob a convenience store, and another law that says that it's illegal to engage in robbery on Monday, then &quot;You robbed a store, and it was a convenience store&quot; and &quot;You robbed a store, and you did it on Monday&quot; would be different sets of facts, and so you could be prosecuted twice, once for each law. So if the legislature really wanted to, they could write a bunch of laws that all slightly differ, and allow people to be prosecuted over and over again without it being considered a violation of Double Jeopardy.</p>\n<p>There does have to be at least one element in the first charge that isn't included in the new one, though. So if you are first charged under a law that prohibits robbing a convenience store on a Monday, and are acquitted, and then charged under a law that prohibits robbing convenience stores without regard to the day, then the second prosecution is not prohibited, because there's an element of the first charge (day of the week) that isn't included in the second. But if you're first charged under a law that prohibits robbing convenience stores without regard to the day and are acquitted, and then charged under a law that prohibits robbing a convenience store on a Monday, then that prosecution is prohibited, because all of the elements of the first charge are present in the second. Basically, if you didn't rob a store, then it logically follows that you didn't rob a store on Monday. But if you didn't rob a store on Monday, it doesn't logically follow that you didn't rob a store at all.</p>\n<p>Double Jeopardy also doesn't protect against prosecution by different jurisdictions, so if Mexico charges you with smuggling drugs into the US and you're acquitted, the US can still prosecute you. Not only are different countries considered different jurisdictions, but states within the US are considered different from each other and from the federal government.</p>\n", "score": 1 } ]

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

[ { "answer_id": 93281, "body": "<p>Obligations are between the customer and A. That does not change as long as A and B remain separated entities (i.e. there is no merger) or there is some kind of contract that alters it.</p>\n<p>There are lots of variations. Did A separate those operations into C (at some point the customer should have agreed to that) and then sold C to B? Did A just &quot;sell&quot; the existing contracts to B (again the customer should have agreed, and then B is the one with the obligation of the customer agreed)?</p>\n<p>For some forms of company, B as an owner could no on the hook for A debts, if it goes into bankruptcy, but that would not depend on the legal firm if the company and would have equally affected the previous owner equally.</p>\n", "score": 2 } ]

[ "liability" ]

[ { "answer_id": 93280, "body": "<p>The reason for the &quot;mail or deliver&quot; language is that it encompasses the possibility that you walk into the company's offices and hand an employee there the required notice letter, without using the postal system. The date &quot;mailed or delivered&quot; is the postmark date if you mail it, or the date the letter goes from your hands to the company's if you deliver it yourself. It isn't the date that the postal service makes their delivery.</p>\n", "score": 3 }, { "answer_id": 93268, "body": "<p>1.) Correct.\n2.) Typically, if there is a postmarked, it was mailed on the day of the mark, not the day of receipt. 6/19 is a federal holiday so the mail won't be delivered until 6/20 at the earliest.\n3.) Likely not. The mis-info is likely because the computers calculating the expected date did not factor in the 6/19 Juneteenth Holiday. It only became a federal holiday 2 years ago.</p>\n", "score": 1 }, { "answer_id": 93277, "body": "<h2>“Mailed” is when you post it, “delivered” is when they receive it</h2>\n<p>You mail something when you deposit it in a post box or hand it over to the post office. Not when it is postmarked (which would normally be the same day) nor when it is delivered (if it ever is). If the Post Office loses your letter and the recipient never gets it, it has still been mailed.</p>\n<p>You might need to prove that you mailed it. A receipt from the Post Office or photos of you putting it, stamped, in a post box, for example.</p>\n<h2>We can’t tell you when 3 business days without seeing how the contract defines a business day</h2>\n<p>There isn’t a standard definition of “business day”, or rather it can mean different things in different contexts. A well drafted contract will define terms that can be ambiguous.</p>\n<p>Absent a definition, the context will determine what days are and what days are not business days. Weekends might be business days for a business that holds itself out to be a 24/7 operation, for example.</p>\n", "score": 0 } ]

[ "united-states", "contract-law", "business", "consumer-protection", "mail" ]

[ { "answer_id": 93269, "body": "<p><a href=\"/questions/tagged/colorado\" class=\"post-tag\" title=\"show questions tagged &#39;colorado&#39;\" aria-label=\"show questions tagged &#39;colorado&#39;\" rel=\"tag\" aria-labelledby=\"tag-colorado-tooltip-container\">colorado</a></p>\n<p>In the U.S., this is largely a question of state law and while similar from state to state, it is not identical.</p>\n<p>In Colorado, which basically follows the majority rule, there are a couple of justifications that could be available: (1) the use of force justified for defense of property, and (2) the use of force justified for a citizen's arrest.</p>\n<p>In the case of defense of property, the rule is as follows:</p>\n<blockquote>\n<p>Use of physical force in defense of property</p>\n<p>A person is justified in using reasonable and appropriate physical\nforce upon another person when and to the extent that he reasonably\nbelieves it necessary to prevent what he reasonably believes to be an\nattempt by the other person to commit theft, criminal mischief, or\ncriminal tampering involving property, but he may use deadly physical\nforce under these circumstances only in defense of himself or another\nas described in section 18-1-704.</p>\n</blockquote>\n<p>Colo. Rev. Statutes § 18-1-706.</p>\n<p>In the case of a citizen's arrest, the rule is:</p>\n<blockquote>\n<p>A private person acting on his own account is justified in using\nreasonable and appropriate physical force upon another person when and\nto the extent that he reasonably believes it necessary to effect an\narrest, or to prevent the escape from custody of an arrested person\nwho has committed an offense in his presence; but he is justified in\nusing deadly physical force for the purpose only when he reasonably\nbelieves it necessary to defend himself or a third person from what he\nreasonably believes to be the use or imminent use of deadly physical\nforce.</p>\n</blockquote>\n<p>Colo. Rev. Stat. § 18-1-707(7).</p>\n<blockquote>\n<p>Can the victim shoot the pickpocket and claim heat of passion as a\ndefense?</p>\n</blockquote>\n<p>No.</p>\n<p>Deadly force is not authorized against a pickpocket, and shooting someone almost always counts (often by definition) as a use of deadly force.</p>\n<p>The &quot;heat of passion&quot; defense only downgrades a murder charge to manslaughter and probably wouldn't apply in any case in these circumstances.</p>\n<blockquote>\n<p>Can the victim grab, tackle, or punch the pickpocket? Can the victim\nsay, &quot;Give back my wallet or I will punch you&quot;? Does the answer vary\ndepending on which of the two people would be at an advantage in a\nphysical confrontation, based on size, age or gender?</p>\n</blockquote>\n<p>The law doesn't answer these question at this level of specificity.</p>\n<p>Whether the force used was &quot;reasonable and appropriate&quot; and was &quot;reasonably believed to be necessary&quot; are determined after the fact on a case by case basis by the finder of fact (i.e. the judge in a bench trial, or the jury in a jury trial).</p>\n", "score": 7 }, { "answer_id": 93276, "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>Force could be justified as defence of property (<a href=\"https://laws-lois.justice.gc.ca/eng/acts/C-46/section-35.html\" rel=\"nofollow noreferrer\"><em>Criminal Code</em>, s. 35</a>) or as a citizen's arrest (<a href=\"https://laws-lois.justice.gc.ca/eng/acts/C-46/section-494.html\" rel=\"nofollow noreferrer\"><em>Criminal Code</em>, s. 494</a>).</p>\n<h3>Defence of property</h3>\n<p>The act committed in defence of property must be &quot;reasonable in the circumstances&quot; (s. 35(1)(d)). The Supreme Court has said (<a href=\"https://canlii.ca/t/29k4c#par21\" rel=\"nofollow noreferrer\"><em>R. v. Szczerbaniwicz</em>, 2010 SCC 15, paragraph 21</a>):</p>\n<blockquote>\n<p>The reasonableness of “all the circumstances” necessarily includes the accused’s subjective belief as to the nature of the danger or harm, but the objective component of the defence is also required: the subjective belief must be based on reasonable grounds. ...</p>\n</blockquote>\n<p>This includes a consideration of subjective <em>and</em> objective criteria, including the value of the property and risk of harm to the property as part of the proportionality analysis (see <a href=\"https://canlii.ca/t/29k4c#par21\" rel=\"nofollow noreferrer\"><em>R. v. Szczerbaniwicz</em>, 2010 SCC 15, paragraphs 21-24</a>).</p>\n<h3>Citizen's arrest</h3>\n<p>See <a href=\"https://canlii.ca/t/j8dzc#par232\" rel=\"nofollow noreferrer\"><em>R. v. Theriault</em>, 2020 ONSC 3317, paragraphs 232-233</a></p>\n<blockquote>\n<p>Where an arrest requires the use of force, the person conducting the arrest must use only the amount of force that is reasonably required in the circumstances. ...</p>\n<p>Assessing whether the degree of force used to conduct an arrest is justified is not an exercise of exactitude. The court should not hold a person conducting an arrest to a standard of perfection. A person conducting an arrest is often placed in a dangerous, fast-paced situation where it may be difficult, if not impossible, to measure the degree of force required with precision. ...</p>\n</blockquote>\n", "score": 4 } ]

[ "united-states", "theft", "use-of-force", "reasonableness", "self-defence" ]

[ { "answer_id": 93274, "body": "<p>There is a reason these are commonly called &quot;TRAP&quot;s (<strong>T</strong>raining <strong>R</strong>epayment <strong>A</strong>greement <strong>P</strong>rovision). These agreements don't just protect the employer from paying for training that an employee can use elsewhere. These agreements frequently act to &quot;trap&quot; the employee in difficult employment circumstances where the employer can demand long hours and excessive dedication in difficult jobs for little pay, knowing that if the employee tries to leave, they could face a substantial financial burden.</p>\n<p>These agreements are generally legal, provided they are executed in good faith.\nHowever, certain circumstances have been used to void the agreements.</p>\n<h2>In particular:</h2>\n<ul>\n<li><p>If the cost or value of the the training is vastly overstated, so the training actually provides minimal value to the employee, but has a disproportionately large repayment cost that only benefit the employer.</p>\n</li>\n<li><p>If the term of the agreement is excessively long (typically, more than 1 year). Training is unlikely to be so valuable and specialized that the employee would need years to repay the benefits. (Certain exceptions apply, such as for advanced engineering work or specialized skills like airline pilots)</p>\n</li>\n<li><p>If the &quot;training&quot; doesn't actually have much value; if the training is just company propaganda and policies, rather than job specific skills, repayment costs are unlikely to hold up in a dispute.</p>\n</li>\n<li><p>If the employee already has demonstrated skills before the training, then forcing them into unnecessary training just for a TRAP contract is unlikely to be supported. For example, someone with years of skilled electrical design work probably cannot be forced to repay thousands of dollars of &quot;training&quot; for a few weeks of basic electrical refresher courses.</p>\n</li>\n</ul>\n<p>Basically, if the training isn't valuable to the employee and the cost isn't reasonable for the training, the TRAP line can frequently be voided. Yet doing so almost always requires mediation or a suit, which are also expensive, time consuming, and have uncertain outcomes.</p>\n<p>Its best for a prospective employee to call out a TRAP provision as a red flag before accepting an offer, and avoid it if at all possible unless they truly believe they'll benefit from the training, intend to stay the full term, and understand the employer might use the cost as a way to expect more from them or hold back their professional advancement.</p>\n", "score": 7 } ]

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

[ { "answer_id": 93272, "body": "<p>The word is not being used in the technical sense here, and is not a mistake.</p>\n<p>The legal term you are thinking that they might have been intending to use is &quot;<a href=\"https://www.merriam-webster.com/dictionary/proffer\" rel=\"nofollow noreferrer\">proffered</a>&quot;. But that wasn't the word that they were trying to use.</p>\n<p>The author is saying that their first choice of legal tactics would have been to file a civil lawsuit with a test plaintiff, who is a boy seeking to be admitted to the Young Women's Leadership School. But, because they could not manage to make this ideal legal tactic work, because they could find a boy willing to do so, they chose to take their Plan B legal tactic instead.</p>\n", "score": 1 } ]

[ "united-states", "legal-terms", "civil-rights" ]

[ { "answer_id": 93240, "body": "<p>The Copyright Office has determined, in <a href=\"https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf\" rel=\"nofollow noreferrer\">chapter 300</a> of the <em>Compendium of U.S. Copyright Office Practices,</em> on page 36, that the copyright bar extends to</p>\n<blockquote>\n<p>works created by the President; <strong>Congress;</strong> the federal judiciary;\nfederal departments, agencies, boards, bureaus, or commissions; or any other officer or employee of the U.S. federal government while acting within the course of his or her official duties.</p>\n</blockquote>\n<p>So the Senator is a US employee for copyright purposes, at least according to the US Copyright Office. Technically, this is interpretation rather than law, and in theory a court might disagree, but if anyone is qualified to speak on this issue, it's the Copyright Office. In my opinion, it is most reasonable to assume that the Copyright Office is correct in their interpretation unless there is case law directly contradicting them.</p>\n<p>The only question is whether the letter was created by the Senator &quot;while acting within the course of his or her official duties.&quot; I'm not aware of any case law suggesting that constituent building is or is not an &quot;official duty&quot; of a US Senator, and there are reasonable arguments to be made in both directions. On the one hand, the letter is clearly beyond the scope of Congress's lawmaking and oversight Constitutional functions. On the other, the office of Senator is an inherently political office, and a case can be made that campaigning for reelection is part of the job. Perhaps surprisingly, <em>that</em> question was extensively litigated during E. Jean Carroll's first defamation lawsuit against Donald Trump, because Trump argued that his statements about Carroll were within the scope of his employment (and so a defamation claim would be effectively barred under the Westfall Act). To my understanding, the current disposition of that lawsuit is that this is considered a question of fact for a jury to decide (at least <a href=\"https://www.documentcloud.org/documents/23785422-carrollca2opn042123\" rel=\"nofollow noreferrer\">according to the Second Circuit</a>).</p>\n<p>What can be said is who does <em>not</em> hold copyright: The US Senate and/or the US government as a whole. The only way the Senate could acquire copyright in this letter (short of the Senator directly granting it to them) would be as a work made for hire, but the work-for-hire doctrine requires that the work be prepared by an employee as part of their official duties, just like the federal copyright bar. So the Senate cannot acquire copyright in this manner. If anyone owns the copyright, it is most likely the Senator.</p>\n", "score": 4 } ]

[ "copyright" ]

[ { "answer_id": 93260, "body": "<p>There is nothing to forgive.</p>\n<p>The question presupposes that it is a crime to lay eyes on classified information. Crimes related to classified information generally have an element of intent. For example, from <a href=\"https://www.law.cornell.edu/uscode/text/18/793\" rel=\"nofollow noreferrer\">18 USC 793</a> (emphasis added):</p>\n<blockquote>\n<p>(a) Whoever, <strong>for the purpose of obtaining information respecting the national defense with intent or reason to believe</strong> that the information is to be used to the injury of the United States, or to the advantage of any foreign nation ...</p>\n<p>(b) Whoever, <strong>for the purpose aforesaid, and with like intent or reason to believe</strong> ...</p>\n</blockquote>\n<p>The other subsections are similar, but subsection (e) is most directly applicable to the present hypothetical, so here it is in full:</p>\n<blockquote>\n<p>(e) Whoever having <strong>unauthorized</strong> possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, <strong>willfully</strong> communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, <strong>or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it</strong>;</p>\n</blockquote>\n<p>Seeing the files is not <em>per se</em> a crime. Finding the files and failing to ensure that they are returned to the government (or retuning them to the government while transmitting the information to unauthorized parties) is a crime.</p>\n", "score": 3 }, { "answer_id": 93259, "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>It is hard to prove a negative, so I will restrict my consideration to the kinds of offences with which Donald Trump was himself charged with under the <em>Espionage Act</em> (<a href=\"https://www.law.cornell.edu/uscode/text/18/part-I/chapter-37\" rel=\"nofollow noreferrer\">18 U.S.C. c. 37</a>).</p>\n<p>None of the offences there would capture the activity you have described: &quot;<a href=\"https://www.lawfareblog.com/espionage-act-after-mar-lago-indictment\" rel=\"nofollow noreferrer\">Courts have also interpreted the act’s willfulness requirement to signify a knowing violation of the law</a>.&quot;</p>\n<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>In Canada, an absolute-liability offence that comes with a risk of imprisonment would be inconsistent with s. 7 of the <em>Charter</em> and would be of no force or effect (<a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/100/index.do\" rel=\"nofollow noreferrer\"><em>Re B.C. Motor Vehicle Act</em></a>, [1985] 2 S.C.R. 486). An offence that carries a risk of imprisonment must be predicated on knowledge or wilfullness or have due diligence available as a defence. So, it would not be constitutional in Canada for the offences in the <em>Espionage Act</em> (which carry a risk of imprisonment) to capture the circumstances you've described.</p>\n", "score": 2 } ]

[ "united-states", "criminal-law", "us-federal-government", "confidentiality", "secret" ]

[ { "answer_id": 93219, "body": "<h2>No</h2>\n<p>Once a person in control of a property has withdrawn your permission to be there, you must leave as soon as practicable or become a trespasser.</p>\n", "score": 4 }, { "answer_id": 93228, "body": "<p>No. All that matters is that the individual is made aware that they are banned.</p>\n<p>The store is private property as you say. That private property gives the general public permission to enter at certain times. This permission can be withdrawn at any time, for any or no reason (barring unlawful discrimination).</p>\n<p>I work in retail and we do have a formal procedure to ban someone. It involves a form which is filled out and signed by both parties. In theory this prevents cases like this where the individual claims not to know they are banned (as well as a paper trail). In practice I don't think we've ever used it- there's never been a case where the individual being ejected is cooperative enough to sign it. Procedure is usually the individual being told not to come back while they shout obscenities.</p>\n<p>The same applies to being in the store and being told to leave. Once you have been told to leave you no longer have permission to be on the property.</p>\n", "score": 4 } ]

[ "canada", "private-property" ]

[ { "answer_id": 93169, "body": "<p>This refers to the prohibition found at <a href=\"https://www.law.cornell.edu/uscode/text/19/1305\" rel=\"nofollow noreferrer\">19 U.S. Code § 1305</a></p>\n<blockquote>\n<p>(a) <strong>Prohibition of importation</strong></p>\n<p>All persons are prohibited from importing into the United States from any foreign country [...] any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is <strong>obscene or immoral</strong>...</p>\n</blockquote>\n<p>What constitutes &quot;obscene or immoral&quot; is subjective and determined on a case-by-case basis, for example by applying the <a href=\"https://en.m.wikipedia.org/wiki/Miller_test\" rel=\"nofollow noreferrer\"><em>Miller test</em></a>, being:</p>\n<blockquote>\n<p>the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.</p>\n</blockquote>\n<p>The <em>Miller test</em> has three &quot;prongs&quot; which have to be satisfied for the material to be considered obscene:</p>\n<blockquote>\n<p>1 Whether &quot;the average person, applying contemporary community standards&quot;, would find that the work, taken as a whole, appeals to the prurient interest,</p>\n<p>2 Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,</p>\n<p>3 Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.</p>\n</blockquote>\n", "score": 3 }, { "answer_id": 93220, "body": "<ol>\n<li><p>You think this law makes no sense. But actually, you have two sets of laws, one about acquiring porn in the USA, one about importing, and each on its own is perfectly reasonable. It’s just the combination that is “interesting”. But you could as well complain about the other law.</p>\n</li>\n<li><p>Assume if creating porn in the USA was extremely well regulated, that is all actors are well paid, well looked after health wise, free to quit at any time and so on, and that’s why buying porn is legal. And assume that in other countries this is different, actors are forced to work, not paid and do on. Now it makes perfect sense to make imports illegal.</p>\n</li>\n</ol>\n", "score": 0 } ]

[ "united-states", "pornography", "customs-law", "import" ]

[ { "answer_id": 93200, "body": "<h2>You get a lab to test it</h2>\n<p>You should clearly document the chain of custody (ideally with photos) from the unopened packaging to the lab. Any decent sized city will have several labs with the capability to tell you what’s in a pill and provide an expert report.</p>\n", "score": 4 } ]

[ "canada", "medical", "negligence" ]

[ { "answer_id": 83383, "body": "<p>It's allowed by the Creative Commons Attribution -ShareAlike license, and intentionally so. The Wikimedia Foundation <em>wants</em> things like this to be possible; that is part of the goal of open content. (This license is also used on Stack Exchange content, so the same applies to e.g. this answer.)</p>\n<p>However, it is important to remember that this is <em>not</em> a public-domain equivalent license. If you copy from a Wikipedia article (or an SE post), you must comply with the &quot;Attribution&quot; and &quot;ShareAlike&quot; requirements.</p>\n<ul>\n<li>Attribution: You must give credit to the author. For Wikipedia articles, which typically have many authors, a link to the page is sufficient; editors agree to this in addition to the license when they save their edits. For Stack Exchange content, a link to the post itself should be enough. (To get a link to a post, click the &quot;share&quot; link below the post.)</li>\n<li>ShareAlike: If you modify the content, you must release your modified version under the same or a compatible license. You can't copy this answer, add more information (or translate it into another language, or make any other change), and keep an all-rights-reserved copyright on it, or release it into the public domain; your version must also be released under CC BY-SA.</li>\n</ul>\n<p>As long as you follow these requirements, copying is allowed and encouraged.</p>\n", "score": 61 }, { "answer_id": 83384, "body": "<p>&quot;they end up ranking higher than Wikipedia itself on Google&quot;. That's a <em>highly</em> unlikely scenario, unless you could somehow convince all current users of Wikipedia that switching to a paid page is better (for the same content!). Also, Google's high ranking of Wikipedia articles (together with often embedding parts of an article in its results) is hard coded and unlikely to change without the explicit interaction of a programmer at Google. As mentioned in <a href=\"https://en.wikipedia.org/wiki/Google_and_Wikipedia\" rel=\"noreferrer\">this article</a>, Google is a large donor to the Wikimedia Foundation, paying several million dollars a year. This was, according to the article, done to &quot;help reduce the pagerank of widespread, uneditable Wikipedia clones that were ostensibly ad farms.&quot;</p>\n<p>So indeed, such pages did exist and many still do. The <a href=\"https://en.wikipedia.org/wiki/Wikipedia:Mirrors_and_forks/ABC\" rel=\"noreferrer\">List of Forks known to Wikipedia</a> is almost endless. Some just clone a particular set of articles (for a particular topic) others really just wrap a new layout around the same content, adding poor navigation and advertisements. Many of the clones fail to follow the CC license requirement, giving the impression the content is their own. This is obviously a clear copyright violation.</p>\n", "score": 53 }, { "answer_id": 83390, "body": "<p>Wikipedia does not make <strong>any</strong> attempt to stop people creating and placing online copies of Wikipedia, or parts of it. Indeed it encourages people to do so. Not only does the CC-BY-SA 3.0 license explicitly allow this, Wikipedia provides free &quot;dumps&quot; on a regular Basis. Using these, anyone can copy the data behind any or all of Wikipedia's articles. It also provides free access to the software on which Wikipedia runs (<a href=\"https://en.wikipedia.org/wiki/MediaWiki\" rel=\"nofollow noreferrer\">MediaWiki</a>) and instructions on how to set it up, and how to load it with data from a dump.</p>\n<p>The legal requirements imposed are to provide <em><strong>attribution</strong></em> and to offer the content under the same (or a compatible) license, that is, the CC-BY-SA 3.0 license.</p>\n<p>The license is simple, just include a note that the site is under the CC-BY-SA 3.0 license and a link to the text of the license. Attribution is harder, because Wikipedia articles often have many authors. But it is generally agreed that one valid way to provide attribution is to link to the history page for the source article on Wikipedia. One could also copy the list of editors from the history, and post that for each article.</p>\n<p>Many online copies of Wikipedia do not fully comply with this license, and are infringements of copyright. But the copyright is held by the individual contributors, not the Wikimedia foundation, and few if any of them care to sue over such infringements.</p>\n<blockquote>\n<p>I don't quite know how best to approach this situation. On one hand I would like to release data which is free and open source. On the other hand I don't want someone else to then run off with all of it and try and outcompete me with the same product I guess.</p>\n</blockquote>\n<p>Those desires are essentially contradictory. If you post a work under a permissive license, such as the CC-BY-SA 3.0 license (or the very similar version 4.0 license which this post and all of Stack Exchange (SE) is offered under), you are saying that anyone in the world is free to copy the work for any purpose, including to sell access to it. One could use the CC-BY-SA-NC licensee which forbids commercial reuse, or some other license that imposes restrictions that seem good to the person doing the posting. But attempting to check up on copies, and get commercial ones taken down or sued would be a full-time job for a team of people, if the site becomes at all popular. Wikipedia (and SE) has chosen not to try.</p>\n", "score": 16 }, { "answer_id": 83389, "body": "<p>As well as forks, there are also &quot;mirrors&quot;. These are like forks, but update regularly to match changes in Wikipedia, so don't end up becoming nothing but a one-off snapshot of the site. Again, nothing to stop you from charging for it. You may not even get your capital investment back though, and the ongoing expenses for a mirror would be higher too, due to higher energy and data usage from continually updating to keep up with Wikipedia. Even more so if you are also saving the intermediate revisions. &quot;Sure you can download Wikipedia, got several multi-terabyte hard drives sitting around?&quot;</p>\n", "score": 3 }, { "answer_id": 83391, "body": "<p>Yes, it can be done legally. Although creating a mirror is not that simple nowadays, as the complexity of the pages increased through the years (images, wikidata, LUA…). You would also need to keep them frequently updated to be competitive.</p>\n<p>And, most importantly, you must correctly include the license of the content (CC-BY-SA for the text, varied for the images) and credit the authors (the author is not &quot;Wikipedia&quot;, but each of the contributors to that page, so you need a list of the authors. It might be enough linking to the Wikipedia history… or you could need your own copy - e.g. they could delete the page you are showing!).</p>\n<p>Then, getting to the main issue, <strong>you are too expensive</strong>. You are providing a service (website with Wikipedia content) for a fee, that is provided for free by Wikipedia itself. And I would bet that better than you (faster to load, more up to date…)</p>\n<p>If you are offered a paid option and <em>exactly the same one</em> (and perhaps even better) for free, which one would you choose? :)</p>\n<p>You would need to provide an additional value that people were willing to pay for. Perhaps, your website is available in a local community with no access to the internet. Or you printed this encyclopedia in paper form. Or you certify that your version does not contain any wrong fact. Or you made a deal with Chinese authorities so your website is available from China <a href=\"https://en.wikipedia.org/wiki/Internet_censorship_in_China#SSL_protocols\" rel=\"nofollow noreferrer\">while Wikipedia is not</a>.</p>\n<p>Or a nuclear war ensued and yours is the only remaining copy of Wikipedia.</p>\n<p>This is the same question that is sometimes raised with Free Software. You could repackage and resell for a hefty sum <a href=\"https://www.gimp.org/\" rel=\"nofollow noreferrer\">an image program</a>, <a href=\"https://www.mozilla.org/en-US/firefox/\" rel=\"nofollow noreferrer\">a web</a> <a href=\"https://www.chromium.org/Home/\" rel=\"nofollow noreferrer\">browser</a>, or even <a href=\"https://getfedora.org/\" rel=\"nofollow noreferrer\">a full</a> <a href=\"https://ubuntu.com/\" rel=\"nofollow noreferrer\">operating</a> <a href=\"https://www.freebsd.org/\" rel=\"nofollow noreferrer\">system</a> with little more than changing their names. <strong>But</strong> you must acknowledge who their authors are (you cannot pass it as made by you), and the right of anyone that receives it from you to give it to others for free.</p>\n<p>So in the end the options to get money from that are generally</p>\n<ul>\n<li>Get paid a nominal fee for the disks with the media (nobody would hardly pay more)</li>\n<li>Get paid for providing <em>support</em> (helping people with issues, keep servers running…)</li>\n<li>Get paid for <em>developing</em> it (there is a payment for the development of a feature, but from then on it is available to everyone for free)</li>\n</ul>\n", "score": 3 } ]

[ "copyright", "open-source-software", "data-ownership" ]

[ { "answer_id": 93213, "body": "<p><strong>An Australian Constitutional Analysis</strong></p>\n<p>These laws are not unconstitutional in Australia because Australia's constitution does not expressly protect the freedom of speech or political expression, and because its implied protections are weak and are not individual rights.</p>\n<p>The <a href=\"https://www.aph.gov.au/constitution\" rel=\"nofollow noreferrer\">Australian Constitution</a> is a document that sets forth the relative powers of the federal and state governments in Australia, and the organizational structure of the federal parliament, the cabinet, and the judiciary.</p>\n<p>But, unlike many national constitutions, the Australian Constitution is not an instrument protecting individual human and civil rights, such as the freedom of expression, except to provide a road map over whether certain kinds of legislation are a federal or state responsibility.</p>\n<p>Any protection of individual rights in Australia has a source different from the Australian Constitution. In Australia, most protections for individual rights arise under the common law and legislation. According to <a href=\"https://g.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-protections\" rel=\"nofollow noreferrer\">the Australian Attorney-General</a>:</p>\n<blockquote>\n<p>The Australian Government is committed to protecting and promoting\ntraditional rights and freedoms, including freedom of speech, opinion,\nreligion, association and movement. These rights and freedoms are\nprotected by the common law principle that legislation should not\ninfringe fundamental rights and freedoms unless the legislation\nexpresses a clear intention to do so and the infringement is\nreasonable.</p>\n<p>The Australian common law provides particularly strong protections for\nfreedom of speech related to public affairs and political matters. The\ngovernment believes these rights and freedoms underpin Australia’s\ndemocracy and should not be taken for granted, and has taken some key\nsteps to ensure that these rights and freedoms are protected and\npromoted.</p>\n</blockquote>\n<p>But, basically, Australia, like the U.K., has a tradition of parliamentary sovereignty, in which a clearly expressed intent of legislation is not subject to judicial review on a substantive basis. As noted in <a href=\"https://www.vgso.vic.gov.au/implied-constitutional-freedom-political-communication\" rel=\"nofollow noreferrer\">the source cited in the question</a>:</p>\n<blockquote>\n<p>It's not uncommon to hear people in Australia talk about their 'right\nto freedom of speech'. However, many people are surprised to learn\nthat the Australian Constitution contains no such right.</p>\n</blockquote>\n<p>It goes on to explain that:</p>\n<blockquote>\n<p>As its name suggests, the implied freedom is not expressly contained\nin the Constitution.It is an implication drawn from the constitutional\n'text and structure'. It originates from the sections of the\nConstitution that require that the Commonwealth Parliament be\n'directly chosen' by the people, and that the people will change the\nConstitution by vote.</p>\n<p>The High Court regularly emphasises that the implied freedom is not a\npersonal right, but operates as a restriction on legislative and\nexecutive power.This means that the Commonwealth and State governments\ncannot make laws or take action that would breach the implied freedom.</p>\n<p>The implied freedom is not absolute ­– it exists only to the extent\nnecessary to protect the system of government reflected in the\nconstitutional text. In practical terms, then, this means that a law\ncan interfere with communication about government or politics without\nbreaching the implied freedom, if the law does so for a legitimate\naim, and is generally proportionate to that aim. . . .</p>\n<p>Under the current case law, three questions must be answered when\ndeciding whether a law infringes the implied freedom:</p>\n<p>Does the law effectively burden the freedom in its terms, operation or\nits practical effect (the burden question)?</p>\n<p>If so, are the purpose of the law and the means adopted to achieve\nthat purpose legitimate, in the sense that they are compatible with\nthe maintenance of the constitutionally prescribed system of\nrepresentative government (the legitimate end question)?</p>\n<p>If the answer to the second question is 'yes', is the law reasonably\nappropriate and adapted to advance that legitimate object (the\nreasonably appropriate and adapted question)? This question involves a\nproportionality test to determine whether the law is justified as\nsuitable, necessary and adequate in its balance.</p>\n<p>If the first question is answered 'yes' and the second or third\nquestion is answered 'no', the law will be invalid.</p>\n</blockquote>\n<p>Essentially, this weak protection of political freedom under the implied freedom of political expression is legitimate if the state governments in question determine that fascism is inconsistent with a Western style political democracy and must be suppressed, and if the laws employed to suppress fascism are not too draconian. This is done in the context of a strong tradition of deference to political decision-making by state and federal parliaments.</p>\n<p>Put another way, so long as the law doesn't make Australia basically a less democratic political system that is depriving people of a meaningful ability to elect members of parliament at the state and federal level, it probably doesn't go too far given the justifications for the implied right. The scales are balanced at the institutional level in terms of whether democracy in Australia is impaired, rather than as an individual right of particular Nazis to express their views.</p>\n<p><strong>A Human Rights Treaty Analysis</strong></p>\n<p>Also, Australia, like the U.K., and many European countries, entrusts the protection of human rights primarily to international treaties which are superior to domestic legislation and are entrenched by the limitations in the treaties themselves upon leaving the treaties, as noted <a href=\"https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/international-human-rights-system\" rel=\"nofollow noreferrer\">here</a>:</p>\n<blockquote>\n<p>Australia is a party to the seven core international human rights\ntreaties:</p>\n<ul>\n<li>the International Covenant on Civil and Political Rights (ICCPR)\n<ul>\n<li>the International Covenant on Economic, Social and Cultural Rights (ICESCR)</li>\n<li>the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)</li>\n<li>the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)</li>\n<li>the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)</li>\n<li>the Convention on the Rights of the Child (CRC)</li>\n<li>the Convention on the Rights of Persons with Disabilities (CRPD).</li>\n</ul>\n</li>\n</ul>\n<p>It is against these treaties that human rights scrutiny processes\nunder the Human Rights (Parliamentary Scrutiny) Act 2011 are\nundertaken. Australia also has periodic treaty body reporting\nobligations under these treaties.</p>\n<p>Australia is an active participant in the Universal Periodic Review\nprocess which provides an in-depth analysis of Australia’s compliance\nwith our international human rights obligations.</p>\n<p>Australia is also a party to:</p>\n<ul>\n<li>the Optional Protocol to the International Covenant on Civil and Political Rights establishing an individual communication mechanism\n<ul>\n<li>the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death\nPenalty</li>\n<li>the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict</li>\n<li>the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child\nPornography</li>\n<li>the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women establishing an\nindividual communication mechanism</li>\n<li>the Optional Protocol to the Convention on the Rights of Persons with Disabilities establishing an individual communication\nmechanism - the Optional Protocol to the Convention against Torture\nand Other Cruel, Inhuman or Degrading Treatment or Punishment.</li>\n</ul>\n</li>\n</ul>\n</blockquote>\n<p>From a U.S.-centric view, the way that Australia protects human rights is similar to how the U.S. regulates itself with regard to preventing war crimes.</p>\n<p>In the Australian context, the core issue with respect to the legislation discussed in the question is whether it abridges an obligation of Australia under the <a href=\"https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights\" rel=\"nofollow noreferrer\">International Covenant on Civil and Political Rights</a> (ICCPR). Primarily, Articles 19 and 20 of that treaty are implicated by this legislation. These articles state:</p>\n<blockquote>\n<p>Article 19</p>\n<ol>\n<li><p>Everyone shall have the right to hold opinions without interference.</p>\n</li>\n<li><p>Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and\nideas of all kinds, regardless of frontiers, either orally, in writing\nor in print, in the form of art, or through any other media of his\nchoice.</p>\n</li>\n<li><p>The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may\ntherefore be subject to certain restrictions, but these shall only be\nsuch as are provided by law and are necessary:</p>\n</li>\n</ol>\n<p>(a) For respect of the rights or reputations of others;</p>\n<p>(b) For the protection of national security or of public order (ordre\npublic), or of public health or morals.</p>\n<p>Article 20</p>\n<ol>\n<li><p>Any propaganda for war shall be prohibited by law.</p>\n</li>\n<li><p>Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall\nbe prohibited by law.</p>\n</li>\n</ol>\n</blockquote>\n<p>In the treaty analysis, the argument would presumably be that section 3 of Article 19 is adequate to permit the law, because Nazism inherently disrespects the rights of others and present a threat to national security, public order, and public morals, particularly considered in light of Article 20, Section 2, as Nazi symbols can be considered incitements to discrimination, hostility, and violence.</p>\n<p>I'm not personally familiar with precisely how these rights are implemented under Australian law, nor am I personally familiar with the case law interpreting these Articles of the ICCPR.</p>\n<p><strong>Application To Hypotheticals</strong></p>\n<blockquote>\n<p>Is it possible that these laws are unconstitutional, and simply\nhaven't been struck down by the courts yet?</p>\n</blockquote>\n<p>Yes. Indeed, I have no idea who would have standing to raise the issue, or by what procedural route this would be done.</p>\n<p>I could imagine, for example, that an individual prosecuted for using such symbols might not have standing to context a prosecution under the laws on these grounds, while the leader of a proposed political party with a petition for recognition pending might be able to make these legal arguments.</p>\n<blockquote>\n<p>However, shouldn't these laws violate the implied right to political\nspeech of the Australian constitution?</p>\n</blockquote>\n<p>As discussed above, under Australia's political freedom jurisprudence, both as an implied constitutional right and under the ICCPR, it isn't an open and shut case.</p>\n<p>Notably, similar prohibitions in Germany have not held to violate the express protections for freedom of political speech of Germany's Basic Law.</p>\n<blockquote>\n<p>If someone wanted to collect the signatures needed to found the\nAustralian Nazi Party and run for parliament, shouldn't they have the\nright to do so, and to display the symbols of the party they intend to\nfound as part of that effort? Shouldn't their supporters be able to\ndisplay the symbols of their support for said party?</p>\n</blockquote>\n<p>Australian courts can address that question when it arises. Presently, there isn't a ground swell of support for such a party. And, there is no legal prohibition on establishing a political party with particular political views that the neo-Nazi party might ascribe to itself, nor is there as prohibition on such a party establishing any other new logos and symbols for itself that it devises.</p>\n<p>Essentially, what a holding that the particular symbols cannot be used is saying is that these symbols are now so deeply and indelibly identified with genocide, and racial discrimination, religious discrimination, and political violence that the government may rightly declare that adopting those widely understood meanings of those symbols is outside the &quot;<a href=\"https://en.wikipedia.org/wiki/Overton_window\" rel=\"nofollow noreferrer\">Overton Window</a>&quot; of acceptable political thought within Australian democracy.</p>\n<p>In the U.S. free speech jurisprudence, the analogous case would be U.S. laws that prohibit cross-burning in front of unwilling people's homes and businesses because such symbols have developed in the context of U.S. history and culture the character of a &quot;true threat&quot;.</p>\n<p>Australian states are basically saying that the symbols of the Nazi Germany regime amount to, in the current Australian context, a true threat to use violence against minorities in Australian society.</p>\n<p>If someone wants to espouse the non-genocidal, non-discriminatory policies of the Nazi Party in Germany, without advocating political violence, they are welcome to try to do so under a different name with symbols of their own that distance themselves from that violent, threatening, and anti-democratic Nazi German legacy.</p>\n<p>U.S. law protects people's right to use Nazi symbols. But, the U.S. has an express individual protection of freedom of speech without the same qualifications as Australia's implied constitutional right and treaty rights. And, one could imagine a rational U.S. Supreme Court resolving that narrow question differently without unraveling the whole of U.S. freedom of speech jurisprudence, just as it did in the case of cross-burning laws which are an uncontroversial part of modern U.S. constitutional free speech law.</p>\n<p>As another example, suppose that a Jewish Temple held the copyright and also trademark rights to those symbols in the context of political campaigns. A political party couldn't use those symbols then any more than they could use the McDonald's arches as its symbols without permission. But that isn't a major restriction on political freedom. The restriction on the use of the Nazi symbols isn't itself a restriction on particular political policies or ideas.</p>\n", "score": 6 }, { "answer_id": 93206, "body": "<p><a href=\"/questions/tagged/austria\" class=\"post-tag\" title=\"show questions tagged &#39;austria&#39;\" aria-label=\"show questions tagged &#39;austria&#39;\" rel=\"tag\" aria-labelledby=\"tag-austria-tooltip-container\">austria</a></p>\n<p>Obviously I read Austria instead of Australia. Following a hint from @Rick about the advice in the help center - <a href=\"https://law.stackexchange.com/help/on-topic\">we expect and encourage answers dealing with other jurisdictions</a> - I will undelete the answer. You are legally allowed to chuckle.</p>\n<p>Nazi symbols, and the symbols of successor organizations, have been illegal in Austria since <a href=\"https://en.wikipedia.org/wiki/Verbotsgesetz_1947\" rel=\"nofollow noreferrer\">at least 1947</a>.</p>\n<p>The relevant &quot;Verbotsgesetz&quot; has been challenged in the European Court of Justice, which refuted the challenge based on paragraph 17 of the European Convention of Humans Rights (which has equal standing to the constitution):</p>\n<blockquote>\n<p>Nothing in this Convention may be interpreted as implying for any\nState, group or person any right to engage in any activity or perform\nany act aimed at the destruction of any of the rights and freedoms set\nforth herein or at their limitation to a greater extent than is\nprovided for in the Convention.</p>\n</blockquote>\n<p>I am pretty sure that this covers other related laws, such as the &quot;Abzeichengesetz&quot; from 1960 (which is also based on international law, the <a href=\"https://www.ris.bka.gv.at/Dokumente/BgblPdf/1955_152_0/1955_152_0.pdf\" rel=\"nofollow noreferrer\">Staatsvertrag von Wien</a> BGBl. 152/1955, in which Austria agrees to ban national socialist activity and propaganda in a treaty with both the allied forces and the Soviet Union).</p>\n<p>You probably could challenge the inclusion of specific symbols, if you feel they cannot be reasonably group as propaganda for Nazi organisatons or their successor organisations. Challenging the whole law will probably fail due to the reasons cited above.</p>\n<p>Note that in general having right wing views in Austria and disseminating them is public is not illegal (as you will notice when you follow the political discourse there).</p>\n<p>Speculative bit concerning the original question, I suspect a similar principle is applied there - constitutional guarantees, if any, might not apply to people and organizations whose goal it is to overthrow said constitution (this is e.g. also the case in Germany, where I live).</p>\n", "score": 4 } ]

[ "constitutional-law", "australia", "freedom-of-speech" ]

[ { "answer_id": 93215, "body": "<blockquote>\n<p>Could I legitimately face criminal prosecution over this?</p>\n</blockquote>\n<p>It's not clear that you have committed a crime. If you're asking whether you might be suspected of having committed a crime, well, you have to identify a crime which you might be suspected of having committed. What would the elements of such a crime be?</p>\n<p>You can have a look at, for example, <a href=\"https://www.nysenate.gov/legislation/laws/PEN/P3TMA235\" rel=\"nofollow noreferrer\">New York's obscenity laws</a>. It's difficult to see how a prosecutor could seek an indictment on the facts given in the question even without knowing that the words were not your own and that you had pasted them inadvertently into your search box.</p>\n<p>If your worry about this is affecting you in your daily life then you should consider whether getting advice from a lawyer would be worthwhile, so you have a better understanding of the likelihood of prosecution and the likelihood of success of any defenses you might have available. It might cost a few hundred dollars, but if you are seriously troubled by the possibility of prosecution then the cost might be justified.</p>\n", "score": 2 } ]

[ "united-states", "criminal-law", "internet", "is-x-legal", "google" ]

[ { "answer_id": 93205, "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>Both the government and private Members may present a bill in the House of Commons. However, the process for a private Member's bill to receive time and consideration on the Order Paper is subject to procedural hurdles, such as <a href=\"https://www.ourcommons.ca/procedure/our-procedure/PrivateMembersBusiness/c_g_privatemembersbusiness-e.html\" rel=\"nofollow noreferrer\">random selection</a>.</p>\n<p>From there, the bill would be pursued subject to ordinary political considerations, such as its practicality, cost-benefit analysis, Parliament's understanding of the bill's constitutionality (including division of powers), public opinion, etc.</p>\n", "score": 2 } ]

[ "bills", "philippines" ]

[ { "answer_id": 93194, "body": "<p>Arraignments are only used for criminal matters. While Trump has been involved in many lawsuits, as have his businesses, only one prior case to his Presidency was criminal or quasi-criminal and might have involved an arraignment (although not necessarily):</p>\n<blockquote>\n<p>In 2006, the Town of Palm Beach began fining Trump $250 per day for\nordinance violations related to his erection of an 80-foot-tall (24 m)\nflagpole flying a 15-by-25-foot (4.6 by 7.6 m) American flag on his\nproperty. Trump sued the town for $25 million, saying that they\nabridged his free speech, also disputing an ordinance that local\nbusinesses be &quot;town-serving&quot;. The two parties settled as part of a\ncourt-ordered mediation, in which Trump was required to donate\n$100,000 to veterans' charities. At the same time, the town ordinance\nwas modified allowing Trump to enroll out-of-town members in his\nMar-a-Lago social club.</p>\n</blockquote>\n<p>Some municipal ordinance violations are treated procedurally like traffic tickets, and some are treated more like misdemeanor criminal offenses (which do generally involve arraignments).</p>\n<p>After his Presidency, one of his business entities <a href=\"https://en.wikipedia.org/wiki/Personal_and_business_legal_affairs_of_Donald_Trump\" rel=\"noreferrer\">was convicted</a> of rare criminal charges against an organization:</p>\n<blockquote>\n<p>On December 6, 2022, Trump's company The Trump Organization was\nconvicted on 17 criminal charges.</p>\n</blockquote>\n<p>Lawsuits do not give rise to arraignments. This isn't part of the civil lawsuit process.</p>\n<p>It is estimated that <a href=\"https://www.sentencingproject.org/app/uploads/2022/08/Americans-with-Criminal-Records-Poverty-and-Opportunity-Profile.pdf\" rel=\"noreferrer\">70 to 100 million Americans</a> have criminal records because they have been convicted of at least one criminal offense. This is about one in three or one in four American adults. The number of Americans who have even been arraigned for a crime, in a case that is not currently pending, who have never been convicted of a crime, is probably on the order of 1 million to 10 million. Probably tens of millions of Americans who have never been arraigned, however, have been arrested but never charged with any crime, in addition to those who have been arraigned and not convicted with no charges pending, those who have been arraigned only in cases that are still pending, and those who have been convicted of crimes.</p>\n<p><strong>Lots Of Crimes That Are Committed Are Never Prosecuted</strong></p>\n<blockquote>\n<p>There is also a CREW report listing 56 &quot;credible&quot; criminal offenses\nsince Trump launched his campaign in 2015.</p>\n</blockquote>\n<p>These are cases in which there is there are credible allegations that Trump acted in ways that could have been the basis for committing a crime. But, CREW is not alleging that any of these circumstances (other than the 2022 Trump Organization conviction and the two felony cases upon which Trump has been arraigned in 2023) have resulted in any court action being taken to press criminal charges.</p>\n<p>It is possible that Trump or one of his businesses was the subject of criminal investigations that did not result in charges being brought, but there is really no way to know that this is the case. And, there is nothing terribly dishonorable about being investigated for a crime but not ultimately charged with any criminal offense.</p>\n<p>By analogy, if you are speeding, you are committing a traffic offense. The vast majority of the time, you are not ticketed for speeding even if a law enforcement office's radar gun tells the law enforcement officer that you were going slightly over the speed limit. Eventually, after the statute of limitations for traffic offenses (which is quite short) runs, you can't even be charged with those offenses.</p>\n<p>In the same way, while unlawful sexual contact or sexual assault is a crime, if charges are not brought within the statute of limitations (something we know empirically to be quite common) then it doesn't result in criminal charges even though the offender committed a crime.</p>\n<p>Likewise, most civil fraud lawsuits allege conduct that could have been prosecuted as a crime if authorities sought to do so. But, in practice, criminal prosecutors with limited resources most often chose not to bring criminal fraud prosecutions in cases where a civil fraud lawsuit could bring complete relief to the party who was harmed by it.</p>\n<p><strong>Not All Illegal Conduct Is Criminal</strong></p>\n<p>Many kinds of conduct that can give rise to civil lawsuits cannot generally give rise to criminal charges at all. These include breaches of contract, negligently but unintentionally causing a personal injury, disagreeing over the interpretation of the tax laws in a way that cause the government to allege that you failed to pay the full amount of the taxes that you owe, employment discrimination, and many kinds of housing discrimination.</p>\n<p><strong>Big Businesses Are Usually Parties To Many Lawsuits</strong></p>\n<p>Business entities, large and small, are routinely involved in lots of civil lawsuits, sometimes as plaintiffs and sometimes as defendants, and the number of lawsuits is, more or less, usually roughly proportional to the economic scale of the enterprise.</p>\n<p>For example, almost every landlord brings eviction and rent collection lawsuits from time to time, and sometimes is sued by tenants over security deposit issues and alleged defects in the maintenance of the rental property. Almost every significant property owner will sooner or later become involved in litigation over boundary discrepancies or easements or in eminent domain cases. Almost every developer will sooner or later be involved in construction defect and/or mechanic's lien litigation.</p>\n<p>Almost every bank brings foreclosure lawsuits and collection lawsuits when loans are allegedly not paid as agreed or loan covenants are not met.</p>\n<p>Almost every business with a great many employees with eventually be involved in some sort of lawsuit with an employee.</p>\n<p>A large business will typically litigate a significant tax dispute at least every few years.</p>\n<p>Most of the lawsuits filed in the United States are brought by banks alleging defaults on loans, landlords alleging unpaid rent, and governments collecting unpaid taxes.</p>\n<p>For example, <a href=\"https://www.courts.state.co.us/userfiles/file/Administration/Planning_and_Analysis/Annual_Statistical_Reports/2022/FY2022%20Annual%20Report.pdf\" rel=\"noreferrer\">in Colorado, in 2022</a>, there were 62,996 tax collection cases, 29,836 evictions, 1,971 simple mortgage foreclosures, 66,875 debt collection cases, and 306 personal property repossession cases, for a total of 161,984 civil lawsuits out of 199,293 civil lawsuits in the state (about 81%), the lion's share of which are brought by financial institution lenders, landlords, and government tax collectors.</p>\n<p>Whether 4,000 lawsuits over several decades is a lot or a little for a large business enterprise, or is just par for the course, really comes down to the nature of, and scope of, the businesses involved. The character of the allegations in the lawsuit, and whether the allegations are atypical of lawsuit involving large business enterprises, is really more telling than the number of lawsuits.</p>\n", "score": 18 } ]

[ "united-states", "statistics", "arraignment" ]

[ { "answer_id": 93208, "body": "<p>Payment of the final expenses of an estate does not make one a settlor of a testamentary trust, and thus, it would not impair its asset protection effect of the testamentary trust. (Incidentally, a disclaimer of (i.e. formal refusal to accept) a bequest or devise or inheritance is also not a gift for this purpose or for gift and estate tax purposes.)</p>\n<p>A payment of the final expenses of a decedent is not an annual exclusion gift under the federal gift and estate tax in the United States. Only gifts of present interests in property to natural persons qualify for the annual exclusion, although, if a natural person was the creditor, I suppose it could be an annual exclusion gift from the person making the payment to the creditor.</p>\n<p>Whether or not the payment of the final expenses like funeral costs and final illness expenses of a decedent constitutes a gift at all, within the meaning of the federal gift and estate tax in the United States, is not entirely clear. There may be case law or tax authority on that point that I haven't researched. But, I've never seen that question litigated.</p>\n<p>Estates of persons dying in 2023 can exclude $12.92 million from gift and estate taxation per lifetime (including any lifetime gifts not exempt from gift taxation), plus any unused gift and estate tax exclusion inherited from a predeceased spouse. So, it is rare that payment of the final expenses of a decedent would materially impact the amount of gift and estate taxes due in an estate.</p>\n", "score": 0 } ]

[ "united-states", "new-jersey", "trusts-and-estates" ]

[ { "answer_id": 93207, "body": "<p>According to the <a href=\"https://scholarship.law.uwyo.edu/do/search/?q=Attorney%27s%20fees%20in%20public%20litigation%20&amp;start=0&amp;context=15127232&amp;facet=\" rel=\"nofollow noreferrer\">Attorney's Fees in Public Interest Litigation</a>¹ from 1981:</p>\n<blockquote>\n<p>It has traditionally been the practice in federal court not to award attorney's fees to the prevailing party under the doctrine known as the American rule. This is different from the practice in English courts where the prevailing litigant has always been awarded the expense of his counsel fees. There are several possible reasons for the development of this American rule including &quot;a public mistrust of lawyers, the American belief that every man should pay his own way as well as the expenses for defending himself, and the possibility of historical accident&quot;</p>\n<p>[...]</p>\n<p><strong>The American rule can be traced as far back as 1796, when the Supreme Court in <a href=\"https://supreme.justia.com/cases/federal/us/3/306/\" rel=\"nofollow noreferrer\"><em>Arcambel v. Wiseman</em></a> concluded that the American system of jurisprudence did not permit the award of attorney's fees to the successful litigant as a matter of course.</strong> Numerous later cases also followed this proposition.</p>\n<p>Several reasons have been given in support of the rule. One is that the rule gives free access to the courts without\nthe threat of having to pay the fees of the adversary's attorney. Another reason commonly given is that the rule limits the possible abuse in the awarding of fees.' However, the rule can act as a deterrent by restraining those parties who cannot afford attorney's fees from bringing an action supported by good cause.</p>\n</blockquote>\n<p>(The article goes on to discuss off-topic exceptions etc)</p>\n<p>¹ _{Quiner, David Mark (1981) &quot;Attorney's Fees in Public Interest Litigation,&quot; Land &amp; Water Law Review: Vol. 16 : Iss. 2 , pp. 727 - 745.}</p>\n", "score": 1 } ]

[ "united-states", "england-and-wales", "civil-law", "legal-history", "costs" ]

[ { "answer_id": 93162, "body": "<blockquote>\n<p>Bob's will leaves everything to Abby. Bob has a brokerage account\nsolely in his name with no TOD on the account. Bob then dies. It is my\nunderstanding that for Abby to get the money, you have to go through\nprobate. Am I right about that?</p>\n</blockquote>\n<p>Yes, this has to go through probate.</p>\n<blockquote>\n<p>I have been told that when you are leaving everything to a spouse you\ncan skip probate. I am thinking that is wrong.</p>\n</blockquote>\n<p>You are correct.</p>\n<p>This said, in a very small dollar estate (e.g. $20,000, with the actual dollar amount varying state by state), some states allow you to transfer assets by affidavit rather than via the probate process, if the sold heir at all and will beneficiary are the same and there are no unpaid creditors with a claim against those funds.</p>\n<p>New Jersey has <a href=\"https://smallestates.uslegal.com/affidavits-and-summary-administration-laws/new-jersey-small-estates-law/\" rel=\"noreferrer\">two sets of small estate procedures</a> for estates under $50,000. The cutoff is sometimes $10,000, sometimes $20,000, and sometimes $50,000 depending upon the circumstances and the nature of the simplified process sought. It isn't clear to me that they apply in cases where the decedent has a will and therefore is not intestate.</p>\n<blockquote>\n<p>Small Estates General Summary: Small Estate laws were enacted in order\nto enable heirs to obtain property of the deceased without probate, or\nwith shortened probate proceedings, provided certain conditions are\nmet. Small estates can be administered with less time and cost. If the\ndeceased had conveyed most property to a trust but there remains some\nproperty, small estate laws may also be available. Small Estate\nprocedures may generally be used regardless of whether there was a\nWill. In general, the two forms of small estate procedures are\nrecognized:</p>\n<ol>\n<li>Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the\naffidavit to the holder of property such as a bank to obtain property\nof the deceased. Other states require that the affidavit be filed with\nthe Court. The main requirement before you may use an affidavit is\nthat the value of the personal and/or real property of the estate not\nexceed a certain value.</li>\n<li>Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary\nAdministration, basing the requirement of which one to use on the\nvalue of the estate. Example: If the estate value is 10,000 or less an\naffidavit is allowed but if the value is between 10,000 to 20,000 a\nsummary administration is allowed.</li>\n</ol>\n<p>New Jersey Summary: Under New Jersey statute, where as estate is\nvalued at less than $50,000, a surviving spouse, partner in a civil\nunion, or domestic partner, may present an affidavit of a small estate\nbefore the Superior Court. Upon the execution and filing of the\naffidavit, the surviving spouse shall have all of the rights, powers\nand duties of an administrator duly appointed for the estate.</p>\n<p>New Jersey: New Jersey requirements are set forth in the statutes\nbelow.</p>\n<p>TITLE 3B ADMINISTRATION OF ESTATES–DECEDENTS AND OTHERS</p>\n<p>3B:10-3. When spouse, partner in a civil union, or domestic partner\nentitled to assets without administration.</p>\n<p><strong>Where the total value of the real and personal assets of the estate of</strong>\n<strong>an intestate</strong> will not exceed $50,000, the surviving spouse, partner in\na civil union, or domestic partner upon the execution of an affidavit\nbefore the Surrogate of the county where the intestate resided at his\ndeath, or, if then nonresident in this State, where any of the assets\nare located, or before the Superior Court, shall be entitled\nabsolutely to all the real and personal assets without administration,\nand the assets of the estate up to $10,000 shall be free from all\ndebts <strong>of the intestate</strong>. Upon the execution and filing of the affidavit\nas provided in this section, the surviving spouse, partner in a civil\nunion, or domestic partner shall have all of the rights, powers and\nduties of an administrator duly appointed for the estate. The\nsurviving spouse, partner in a civil union, or domestic partner may be\nsued and required to account as if he had been appointed administrator\nby the Surrogate or the Superior Court. The affidavit shall state that\nthe affiant is the surviving spouse, partner in a civil union, or\ndomestic partner of the intestate and that <strong>the value of the</strong>\n<strong>intestate’s real and personal assets will not exceed $50,000, and</strong>\n<strong>shall set forth the residence of the intestate at his death</strong>, and\nspecifically the nature, location and value of <strong>the intestate’s</strong> real\nand personal assets. The affidavit shall be filed and recorded in the\noffice of such Surrogate or, if the proceeding is before the Superior\nCourt, then in the office of the clerk of that court. Where the\naffiant is domiciled outside this State, the Surrogate may authorize\nin writing that the affidavit be executed in the affiant’s domicile\nbefore any of the officers authorized by R.S.46:14-6.1 to take\nacknowledgments or proofs.</p>\n<p>amended 1983, c.246, s.1; 2004, c.132, s.77; 2005, c.331, s.24; 2015,\nc.232, s.1.</p>\n<p>3B:10-4. When heirs entitled to assets without administration</p>\n<p>Where the total value of the real and personal assets of the estate of\nan intestate <strong>will not exceed $20,000 and the intestate</strong> leaves no\nsurviving spouse, partner in a civil union, or domestic partner, and\none of his heirs shall have obtained the consent in writing of the\nremaining heirs, if any, and shall have executed before the Surrogate\nof the county where the intestate resided at his death, or, if then\nnonresident in this State, where any of the intestate’s assets are\nlocated, or before the Superior Court, the affidavit herein provided\nfor, shall be entitled to receive the assets of the intestate of the\nbenefit of all the heirs and creditors without administration or\nentering into a bond. Upon executing the affidavit, and upon filing it\nand the consent, he shall have all the rights, powers and duties of an\nadministrator duly appointed for the estate and may be sued and\nrequired to account as if he had been appointed administrator by the\nSurrogate or the Superior Court.</p>\n<p>The affidavit shall set forth the residence of the intestate at his\ndeath, the names, residences and relationships of all of the heirs and\nspecifically the nature, location and value of the real and personal\nassets and also a statement that the value of the intestate’s real and\npersonal assets will not exceed $20,000.</p>\n<p>The consent and the affidavit shall be filed and recorded, in the\noffice of the Surrogate or, if the proceeding is before the Superior\nCourt, then in the office of the clerk of that court. Where the\naffiant is domiciled outside this State, the Surrogate may authorize\nin writing that the affidavit be executed in the affiant’s domicile\nbefore any of the officers authorized by R.S.46:14-6.1 to take\nacknowledgments or proofs.</p>\n<p>amended 1983, c.246, s.2; 2004, c.132, s.78; 2005, c.331, s.25; 2015,\nc.232, s.2.</p>\n<p>The consent and the affidavit shall be filed and recorded, in the\noffice of the surrogate or, if the proceeding is before the Superior\nCourt, then in the office of the clerk of that court. Where the\naffiant is domiciled outside this State, the surrogate may authorize\nin writing that the affidavit be executed in the affiant’s domicile\nbefore any of the officers authorized by R.S. 46:14-7 and R.S. 46:14-8\nto take acknowledgments or proofs.</p>\n</blockquote>\n", "score": 7 } ]

[ "united-states", "new-jersey", "trusts-and-estates" ]

[ { "answer_id": 93191, "body": "<p>Yes... whether the judge will grant the subpoena is another matter and one that it is to premature to speculate on. With what I have seen of the indictment, Pence was not named as a witness in the investigation, which will call into question why he is being asked to testify to events that were not used to indict Trump (if he saw something, that should come out in the investigation prior to trial.). Without some show that the testimony was material to the investigations findings and the charge I doubt it would be granted... but there's nothing stopping the prosecution for requesting the subpoena.</p>\n", "score": 3 } ]

[ "united-states", "criminal-law", "constitutional-law", "us-federal-government", "president" ]

[ { "answer_id": 93187, "body": "<p>Without addressing the specific facts of the question, here are some general principles.</p>\n<p>While a transfer of real estate upon divorce does not trigger a due on sale clause (which would trigger a foreclosure), both spouses have to remain on the loan unless it is refinanced.</p>\n<p>Assumption of a loan generally applies to new owners of the real estate, assuming that they are creditworthy, and not to someone who is one of the original owners of the real estate. Otherwise the bank would be giving up something (one of the guarantors of the loan), while getting nothing in return.</p>\n<p>It is common for spouses who are both on a loan to have a difficult time extricating one of them from responsibility for it. Often rates or lack of income or creditworthiness makes it hard for the spouse getting the home to refinance. Of course, one could also sell the home, pay the debt with the proceeds, and use the proceeds to buy a new home.</p>\n<p>Ideally, a plan to deal with this is included in a separation agreement in a divorce, but sometimes there are no good alternatives, or parties not represented by lawyers don't anticipate the problem and address it.</p>\n", "score": 2 } ]

[ "divorce", "mortgage" ]

[ { "answer_id": 93175, "body": "<p>Without knowing the specifics on Florida Goverment's regulations, the term Umbrella School is used to designate school like organizations that over see multiple homeschoolers and that they are meeting state educational expectations. Often they will hold events which will allow homeschoolers to compete in school sports as well as set curriculums (sometimes), and field trips and social events (A stereotype of Home School Students is that they are poorly socialized compared to those who attend traditional public or private schools.).</p>\n<p>They should meet legal qualifications, but it's a bare minimum at best. I would recommend calling a local school administration office for best guidance, but saying Home School (Florida Unschoolers Umbrella School) would likely cover your bases. I'm sure you're not the first person to ask this question.</p>\n", "score": 16 }, { "answer_id": 93186, "body": "<blockquote>\n<p>It is asking me whether I am &quot;currently enrolled in high school&quot; and I am not sure what that would entail. I am currently being homeschooled under an umbrella school called &quot;Florida Unschoolers&quot;. Does this count as being enrolled in high school?</p>\n</blockquote>\n<p>According to <a href=\"https://ged.com/policies/florida/\" rel=\"noreferrer\">ged.com</a>, these are some of the requirements for getting a GED in Florida:</p>\n<blockquote>\n<p>To get your Florida GED, you cannot already have a high school diploma or equivalent. You must also be unenrolled in any accredited high school. Additionally, you must be at least 18 years of age or, if younger, have a waiver from your local school board.</p>\n</blockquote>\n<p>These are the criteria that the site is interested in evaluating, and in particular, observe that being enrolled in an accredited high school is a <em>disqualifier</em>.</p>\n<p>&quot;Florida Unschoolers&quot; is a registered school in the state of Florida, which is a separate thing from accreditation. However, according to <a href=\"https://www.fldoe.org/schools/school-choice/private-schools/accreditation.stml\" rel=\"noreferrer\">the Florida Department of Education</a>,</p>\n<blockquote>\n<p><strong>The Florida Department of Education does not accredit, regulate, approve, or license K-12 private schools. Additionally, the Florida Department of Education does not officially recognize any of the various agencies that accredit private schools.</strong></p>\n</blockquote>\n<p>(emphasis in the original).</p>\n<p>As far as I can determine, the GED rules are set by GED, not by the state of Florida. It is plausible that the &quot;accredited&quot; prong of their requirement is boilerplate, and that they would interpret any school registered with the Florida Department of Education to satisfy that requirement. And it is likely that they would consider your school to be a high school if it considers <em>you</em> to be in grade 9, 10, 11, or 12. My guess, then, is that GED would, yes, consider you to be enrolled in high school.</p>\n<p>But you should not accept my guess about that. The Florida Department of Education provides <a href=\"https://www.fldoe.org/academics/career-adult-edu/hse/\" rel=\"noreferrer\">contact information</a> for questions about GEDs, including telephone numbers and an e-mail address. Use them. That will give you authoritative answers to your questions.</p>\n", "score": 14 } ]

[ "education", "school" ]

[ { "answer_id": 41728, "body": "<p>The MIT/JSON.org/Apache licenses are non-copyleft, so commercial use is feasible (i.e., you don't have to release source code when distributing your software). They do each have other requirements like attribution (so you need a part of your software or distribution where you maintain the attribution), and JSON.org has a weird requirement that your software \"shall be used for Good, not Evil\", whatever that means. I don't know if that language has been tried in court to see what it means. You should consult a lawyer for further guidance.</p>\n\n<p>The CDDL license is per-file copyleft, which means you only have to distribute source code for the files which were CDDL licensed. Files that you write that use software that is CDDL-licensed (via import or include) can be licensed as you wish.</p>\n\n<h1>The EPL</h1>\n\n<p>The EPL is more complicated and the most copyleft license in your list. It has a weird patent clause that:</p>\n\n<blockquote>\n <p>...grants Recipient a non-exclusive, worldwide, royalty-free patent license under Licensed Patents to make, use, sell, offer to sell, import and otherwise transfer the Contribution of such Contributor...</p>\n</blockquote>\n\n<p>I don't know what that means.</p>\n\n<p>In terms of your software, I don't know if you can use an EPL library. The text states:</p>\n\n<blockquote>\n <p>Contributions do not include additions to the Program which: (i) are separate modules of software distributed in conjunction with the Program under their own license agreement, and (ii) are not derivative works of the Program.</p>\n</blockquote>\n\n<p>I don't know if software that imports/includes other software is considered \"derivative\", but legally it probably has to do with the ability of your software to use another module that performs similar functionality. If your software calls an API which is instantiated in multiple libraries, then it probably isn't derivative. If the API is unique enough to a specific library, then a court might rule it \"derivative\". For example, I have a program that uses either BSD-licensed Editline, or GPL-licensed GNU Readline. My understanding is that because the API that I use is the same for both, installing my software on a machine that uses Readline doesn't mean my software must be GPL. Please note that I could be wrong.</p>\n\n<h2>Conclusion</h2>\n\n<p>I would avoid EPL-licensed software, but I am biased towards permissive licenses like MIT/BSD.</p>\n", "score": 1 } ]

[ "licensing" ]

[ { "answer_id": 21300, "body": "<blockquote>\n<p>Intellectual property is something unique that you physically create. An idea alone is not intellectual property. For example, an idea for a book doesn’t count, but the words you’ve written do <br>(from the <a href=\"https://www.gov.uk/intellectual-property-an-overview\" rel=\"nofollow noreferrer\">UK government website</a>).</p>\n</blockquote>\n<p>This is a universal principle: having ideas is not protectable (are you quite sure that nobody else has had the same idea, or ever will?)</p>\n<p>So unless you have put some work into producing a specific implementation, your idea can be used by anybody who thinks of it.</p>\n", "score": 3 }, { "answer_id": 21281, "body": "<p>I presume the goal is to get some compensation from the company for using your idea. Since you can't protect the elements of the product and IP law does not protect an idea, you can rely on basic contract law, whereby under the contract, the business is obligated to not use your idea (for some period of time) if they decide, initially, not to \"buy\" your idea (and what you give them, in return, is knowledge of the idea). You may need to get them to agree to this restriction first based on the promise of a great idea, before revealing the idea to them, since once you've told them the idea, they would not have any motivation to pay you or to refrain from using the idea.</p>\n", "score": 2 }, { "answer_id": 21299, "body": "<p>In practice, you could check what happens if you have a great idea to improve Apple's products, or their sales, or whatever else. They have an \"unsolicited ideas submission policy\" which you can find here; </p>\n\n<p><a href=\"https://www.apple.com/legal/intellectual-property/policies/ideas.html\" rel=\"nofollow noreferrer\">https://www.apple.com/legal/intellectual-property/policies/ideas.html</a></p>\n\n<p>Basically it says: If you have an idea, then we don't want it, don't send it to us. If you send it, it's ours, if we use it you won't get paid, we don't keep it confidential, and we don't look at it if we don't want to. </p>\n\n<p>So the chances of making an exception for you and for Apple to sign a contract that would protect you are slim to non-existing. </p>\n", "score": 2 } ]

[ "copyright", "intellectual-property" ]

[ { "answer_id": 93179, "body": "<p>I don't think so.</p>\n<p>When it comes to wages, there may be a <em>Tarifvertrag</em> (union-negotiated wage schedule), which may apply even if the employee in question is no union member. It is enough if the employer is member of the employer's association negotiating the schedule, or in certain other cases. (Clever, really, by extending union benefits to non-members they weaken the unions ...)</p>\n<p>The <em>Tarifvertrag</em> stipulates minimum wages for certain positions, and it may define those positions implement that. An employer could not underpay a skilled machinist by calling her a 'gadget specialist' or similar non-scheduled position. But the deputy department head is likely paid above the highest bracket of the wage schedule, called <em>außertariflich</em> (<a href=\"https://de.wikipedia.org/wiki/Angestellter#Arten\" rel=\"nofollow noreferrer\">AT</a>, beyond the schedule). At this level, it comes down to individual negotiations between the employee and employer.</p>\n", "score": 3 } ]

[ "employment", "germany", "unions" ]

[ { "answer_id": 67503, "body": "<p>An F-2 visa holder is free to create and publish online content, but can’t profit off of it since F-2 holders are not allowed to work, even for themselves. That being said, an F-2 holder could provide the funds for someone else to create online content as long as the visa holder acts strictly in an investor capacity and does not actually “work” on anything.</p>\n<p>An F-2 visa holder <em>would</em> be allowed to create online content without monetizing it, and then once that person has changed their residency status, they could begin monetizing their work, even if it was created while they were under an F-2.</p>\n", "score": 1 } ]

[ "united-states", "corporate-law", "immigration", "f2-visa", "work-permit" ]

[ { "answer_id": 93125, "body": "<blockquote>\n<p>Am I within my rights to arrange it as a cover for non-profit?</p>\n</blockquote>\n<p>I'm not sure about that, but I do know that Broadway Licensing isn't the right source for your license. They told you you'd have to license the whole show, but they seem to have forgotten to tell you that if you do that you also have to <em>peform</em> the whole show. From their FAQ:</p>\n<blockquote>\n<p>Can I change or cut language in the script?</p>\n<p>In order to change or remove any language, you must receive prior permission from Broadway Licensing. If you cannot perform the musical without such changes, you should not hold auditions until such permissions have been granted. Please send an email to info@broadwaylicensing.com with the details of the changes you are interested in making. We will respond as quickly as possible.</p>\n</blockquote>\n<p>It sounds as though whoever you spoke with didn't really know what they were talking about. The folks over at Music Theatre International seem to have a much better handle on the situation. <a href=\"https://www.mtishows.com/about-licensing\" rel=\"noreferrer\">Their website describes</a> the difference between the licensing model for a theatrical production and that for a single song:</p>\n<blockquote>\n<p>Grand Rights vs. Small Rights:</p>\n<p>The rights that MTI is able to grant under our contracts with the authors are limited to &quot;Grand Rights.&quot; Grand Rights cover the right to present the show, in its entirety, on stage. These rights do not include performance of a single song or medleys (&quot;Small Rights&quot;), videotaping, use of a logo or merchandising. In some instances, MTI has separately negotiated representation of additional rights, but those are administered on a show-by-show basis.</p>\n<p>&quot;Small Rights&quot; is a term used to cover performances of individual songs in a concert or cabaret-type setting. There are three major agencies that control these rights in the U.S.: SESAC (Society of European Stage Authors and Composers), ASCAP (American Society of Composers, Author and Publishers) and BMI (Broadcast Music, Inc.) Depending upon the songs that are being performed, licenses may be required from one, two or all three of these organizations for a single presentation. Most schools, churches, restaurants and clubs pay an annual fee to obtain a &quot;blanket license&quot; from these licensing agencies that covers the &quot;small rights&quot; use of all music in their respective catalogues for the year. Note that these blanket licenses DO NOT permit dramatic performances of songs. The songs can be performed only in cabaret style. While it is sometimes difficult to draw a distinction between dramatic and non-dramatic performances, a dramatic performance usually involves using a song to tell a story or as part of a story or plot. A blanket license permits neither the use of dialogue from the show nor sets, costumes and/or choreography that invoke the original show.</p>\n</blockquote>\n<p>In general, you need permission to make an arrangement and you need permission to perform it. Whether you're making money or not may affect the likelihood of being given permission, and it may affect the amount of the license fee, or it may not. Copyright does not exist to prevent you from making money with other people's compositions; it exists to ensure that the composers get to make money -- or decide for themselves not to -- when you perform their music.</p>\n<p>Your school may already have a blanket license with for example ASCAP that would cover a public performance of the song. At least now you should have a better idea of where to look for it.</p>\n", "score": 9 } ]

[ "copyright", "licensing", "music" ]

[ { "answer_id": 93172, "body": "<p>In Washington, there is no criminal sanction for installing an &quot;aftermarket&quot; product on your vehicle. If we are speaking of non-commercial vehicles, the penalties for violating the various safety regulations is a ticket.</p>\n<p>The federal Motor Vehicle Safety Standards can be consulted <a href=\"https://www.ecfr.gov/current/title-49/subtitle-B/chapter-V\" rel=\"nofollow noreferrer\">here</a>. The criminal penalty provisions are <a href=\"https://www.ecfr.gov/current/title-49/subtitle-B/chapter-V/part-578\" rel=\"nofollow noreferrer\">here</a>, as authorized by <a href=\"https://www.law.cornell.edu/uscode/text/49/30170\" rel=\"nofollow noreferrer\">49 USC 30170</a> – basically, lying in a report to the government will get you in trouble. You would have to track down all of the provisions in the regulations, but <a href=\"https://www.law.cornell.edu/uscode/text/49/32506\" rel=\"nofollow noreferrer\">here</a> is the bumper prohibition. The rule prohibits manufacture or importation of a car or a part that doesn't meet the standard. Subsection (b) addresses the &quot;then added later&quot; question, generally saying that there is little prohibition against you tweaking your car. First, if you &quot;had no reason to know, by exercising reasonable care, that the vehicle or equipment does not comply with the standard&quot;, you are not subject to penalty. Usually, people have absolutely no reason to know that some part is unsafe, which is not the same as non-compliant, but you might pick up a really cheap bumper having been told that it is cheap because it totally ignores the applicable standards: then you would have reason to know. Used cars and parts are not subject to any federal scrutiny.</p>\n<p>The concept of a &quot;vehicle in violation&quot; is a legal misconception. Certain acts violate, objects do not violate. The chokepoint that controls car parts is the &quot;manufacture or sell&quot; part of the law, which prevents Auto Zone from selling you a bumper made of clay (it does not prevent you from installing such a bumper – unless your state has a specific law to that effect). The shop is in violation, not the customer.</p>\n", "score": 4 }, { "answer_id": 93173, "body": "<h2>Modification can make operating the car a violation of applicable law 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></h2>\n<p>To be allowed to drive a car on a german road, it needs to have a <em>Betriebserlaubnis</em>, which is most akin to a vehicle registration/allowance to operate this <em>specific</em> vehicle. To get this, the car has to comply with <a href=\"https://www.gesetze-im-internet.de/stvzo_2012/__19.html\" rel=\"nofollow noreferrer\">§19 StVZO</a>. Typically, an unmodified car has a type certificate of conformity (<em>Typengenehmigung</em>) according to <a href=\"https://www.gesetze-im-internet.de/eg-fgv_2011/__2.html\" rel=\"nofollow noreferrer\">§2 StVZO</a>, which leads to the car getting a rubberstamped certificate as long as it is managing to pass technical inspection.</p>\n<p>However, modifying the vehicle can void the Typengenehmigung. In fact, doing many changes automatically does <em>unless</em> the part added either has a special certificate that it is a certified accessory for this type of car or you make an <em>Einzelzulassungsantrag</em> - a request for individual road certification for your specialized modified car. In either case, for anything more invasive than swapping one approved part for another, you need to go through a technical inspection <em>again</em>, and you need those changes registered on the Betriebserlaubnis.</p>\n<p>Certain types of additions to the vehicle are also banned in any circumstance, for example, lightbars with blue light, sirens, having invasive changes to the car, and <strong>not</strong> having those registered on the car's Betriebserlaubnis automatically can void the Betriebserlaubnis, making driving with the vehicle a crime.</p>\n<p>Among the parts listed...</p>\n<ul>\n<li>Installation of a Roll Cage needs to be registered.</li>\n<li>Custom Bumpers require either certification that it fits the car and often registration as a custom part.</li>\n<li><strong>ANY</strong> change to the steering or suspension needs type certification <em>and</em> registration.</li>\n<li>Rooftop Tent needs to be registered.</li>\n</ul>\n", "score": 2 } ]

[ "traffic", "motor-vehicle", "safety", "automotive" ]

[ { "answer_id": 93168, "body": "<p>The US presidency operates strictly on four-year terms, which currently begin and end at noon on January 20th of every year that is one more than a multiple of four (for example, the current term began in 2021 and will end in 2025). There is a national election for the presidency every four years in the last November of each presidential term. As this fact is common knowledge, I suppose the question is</p>\n<blockquote>\n<p>Suppose that the majority of the states decide to elect 1 person as their leader to replace the president before the end of a four-year term.</p>\n</blockquote>\n<p>It is certainly possible to remove a president before the expiration of the term of office. The mechanism provided by the constitution is that of impeachment and conviction. But any vacancy that may arise during a four-year term for any reason must be filled according to the constitution and any legislation that does not conflict with the constitution. The constitution and the <a href=\"https://en.wikipedia.org/wiki/Presidential_Succession_Act\" rel=\"nofollow noreferrer\">presidential succession act</a> establish a &quot;line of succession&quot; from which a successor must be chosen essentially by algorithm. If this <a href=\"https://en.wikipedia.org/wiki/Presidential_Succession_Act#Table_of_statutory_successors\" rel=\"nofollow noreferrer\">fairly long list of people</a> were to be exhausted without filling the office, it would be for congress to make further provisions, though its ability to do so without a president in office is questionable, because enacting legislation requires interacting with the president.</p>\n<p>Thus, there is at present no provision for &quot;early elections&quot; as are common in parliamentary systems. If &quot;the people&quot; came to the consensus that such an election were desirable, it would be possible to call one by <a href=\"https://en.wikipedia.org/wiki/Amending_the_United_States_Constitution\" rel=\"nofollow noreferrer\">amending the constitution</a>, which requires far more than a &quot;majority of the states&quot;; rather, it requires an amendment</p>\n<ul>\n<li>first to be approved by either\n<ul>\n<li>a vote of two thirds or more in both houses of congress, or</li>\n<li>a constitutional convention called by congress in response to a request by two thirds or more of the state legislatures, and</li>\n</ul>\n</li>\n<li>and subsequently to be approved by the legislatures of three fourths of the states.</li>\n</ul>\n", "score": 2 } ]

[ "united-states", "us-constitution" ]

[ { "answer_id": 93138, "body": "<blockquote>\n<p>The Life of the Law Has Not Been Logic; It Has Been Experience.</p>\n</blockquote>\n<p>-- Oliver Wendell Holmes, Jr.</p>\n<p>Basically none.</p>\n", "score": 5 }, { "answer_id": 93142, "body": "<blockquote>\n<p>The common law is tolerant of much illogicality, especially on the surface; but no system of law can be workable if it has not got logic at the root of it.</p>\n</blockquote>\n<p>(Lord Devlin, Hedley Byrne &amp; Co., Ltd v Heller &amp; Partners [1964] AC 465, 516)</p>\n<p>To think like a lawyer, you need to use <a href=\"https://www.deakin.edu.au/__data/assets/pdf_file/0005/728105/du-legalreason.pdf\" rel=\"nofollow noreferrer\">three</a> types of logical reasoning:</p>\n<ul>\n<li><a href=\"https://en.wikipedia.org/wiki/Argument_from_analogy\" rel=\"nofollow noreferrer\">reasoning by analogy</a>,</li>\n<li><a href=\"https://en.wikipedia.org/wiki/Inductive_reasoning\" rel=\"nofollow noreferrer\">inductive reasoning</a>, and</li>\n<li><a href=\"https://en.wikipedia.org/wiki/Deductive_reasoning\" rel=\"nofollow noreferrer\">deductive reasoning</a></li>\n</ul>\n<p>However, the standard required is not rigorous logical proof, it is reasonableness. That is, on the evidence provided, is it open to a reasonable person to draw the conclusions that the decision maker made.</p>\n", "score": 2 } ]

[ "theory-of-law" ]

[ { "answer_id": 93164, "body": "<h2><a href=\"https://en.wikipedia.org/wiki/Copyright\" rel=\"noreferrer\">Copyright</a> is the reason</h2>\n<p>Microsoft owns the copyright to the Minecraft code. That gives them <em>exclusive</em> rights to make copies and <a href=\"https://en.wikipedia.org/wiki/Derivative_work\" rel=\"noreferrer\">derivative works</a>. A mod is a derivative work.</p>\n<p>Further, copyright is near universal because of the Berne Convention, the countries in blue all respect each other’s copyright:</p>\n<p><a href=\"https://i.stack.imgur.com/rjePD.png\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/rjePD.png\" alt=\"User:Conscious - Own work. This file was derived from: BlankMap-World6.svg Berne Convention.png\n\" /></a></p>\n<p>So, you can only make a derivative work if you are Microsoft, have Microsoft’s permission, or fall into one of the copyright exemptions which aren't relevant here. The EULA is the permission Microsoft gives and they set the terms on what you can and can’t do.</p>\n<p>If you make a mod without following the terms of the EULA then that is a copyright violation and gives Microsoft the ability to sue you and prevent you from distributions the mod. Copyright in an infringing derivative varies by jurisdiction but in the USA, <em>there is no copyright in the work</em> - so, yes, Microsoft do not own it (but they can prevent its distribution) but <em>neither do you</em>.</p>\n<p>Copyright laws allow Microsoft to not only prevent you from distributing the infringing mod, they can prevent <em>anyone</em> from distributing it - that’s how the get people like Patreon to shut down accounts.</p>\n", "score": 5 } ]

[ "commerce", "eula" ]

[ { "answer_id": 93155, "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<h3>Courts must be <em>correct</em> on questions of law; it is not enough that the interpretation is <em>reasonable</em></h3>\n<p>When an appellate court reviews a lower court's position on a question of law, the lower court's position is reviewed on a standard of <em>correctness</em>. See <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1972/index.do\" rel=\"nofollow noreferrer\"><em>Housen v. Nikolaisen</em>, 2002 SCC 33</a>:</p>\n<blockquote>\n<p>On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness ...</p>\n<p>There are at least two underlying reasons for employing a correctness standard to matters of law. First, the principle of universality requires appellate courts to ensure that the same legal rules are applied in similar situations. ...</p>\n</blockquote>\n<p>It is not open to the lower court to come to a conclusion that is different from that which the appellate court declares to be the correct one on a question of law. Even if lower court's interpretation would be one &quot;open to a reasonable person,&quot; it will be overturned if it does not match that of the appellate court.</p>\n<h3>Questions of law are reviewed on a lower standard (<em>reasonableness</em>) in judicial reviews of administrative decisions</h3>\n<p>The alternative standard, <em>reasonableness</em>, is applicable in the judicial review many administrative tribunals and agencies, even on questions of law. That is unless the statutory scheme invites more strict review by courts or if it is a constitutional question or a general question of law of central importance to the legal system as a whole or relate to jurisdictional boundaries between administrative bodies, in which case, the administrative decision-maker's interpretation of law <em>will</em> still be reviewed on a <em>correctness</em> standard. See <a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do\" rel=\"nofollow noreferrer\"><em>Canada (Minister of Citizenship and Immigration) v. Vavilov</em>, 2019 SCC 65</a>.</p>\n<p>But even in this regime of judicial review, a decision will not be upheld simply because it was <em>open to a reasonable person</em> to come to the decision. The review looks like this:</p>\n<blockquote>\n<p>A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks <strong>whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision</strong></p>\n</blockquote>\n<p>This is significantly more robust that merely inquiring whether the outcome was open to a reasonable person.</p>\n<blockquote>\n<p>a court conducting a reasonableness review properly considers both the outcome of the decision and the reasoning process that led to that outcome was recently reaffirmed in <em>Delta Air Lines Inc. v. Lukács</em>, 2018 SCC 2, [2018] 1 S.C.R. 6, at para. 12. In that case, although the outcome of the decision at issue may not have been unreasonable in the circumstances, the decision was set aside because the outcome had been arrived at on the basis of an unreasonable chain of analysis.</p>\n</blockquote>\n", "score": 1 }, { "answer_id": 93157, "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>Decisions of lower courts are reviewed on appeal <em>de novo</em>, with no deference to lower court interpretations, except in the case of <em>habeas corpus</em> review of state court determinations of law in criminal cases, which can only be set aside if the interpretations are unreasonable.</p>\n<p>This standard of review also applies to written contract interpretation, when the language of the contract is undisputed and unambiguous, and to any determination made by a lower court without resolving a dispute of facts in an evidentiary hearing.</p>\n", "score": 1 }, { "answer_id": 93160, "body": "<h2>It depends</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>“Standard of review” is not a <a href=\"https://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/Pre-2015%20Speeches/Basten/basten_2010.10.07.pdf\" rel=\"nofollow noreferrer\">term</a> that is used in Australia, instead, the governing legislation would determine if an <a href=\"https://law.stackexchange.com/questions/93154/when-a-lower-court-bases-its-outcome-on-an-interpretation-of-the-law-what-is-th\">appeal</a> were to be strict, a rehearing, or a rehearing ‘de novo’. Similarly, whether there is a right to appeal, what can be appealed, what the court may consider, and what powers they have are defined by the statute.</p>\n<p>Note that this is the situation for appeals: merits review of administrative decisions and common law judicial review are different and are addressed later. In casual usage, the word “appeal” might be used for any of the three but formally they are different.</p>\n<p>For this question, ‘de novo’ hearings are the easiest to deal with - the trial judge’s reasoning is immaterial as the appellate courts retries the case from the beginning.</p>\n<p>In a strict appeal the appellate court only considers the law at the time of the original trial and the evidence that was before it. It is also limited to only those matters that the parties raise in the appeal - there might be a glaring and obvious error in the decision but if its not raised in the appeal, its not for the court to go looking for it. The standard that is applied is whatever the statute says or, if it is silent, whether the decision is correct or not on the matters in dispute in the appeal.</p>\n<p>In a rehearing, the appellate court may consider subsequent changes in the law and may allow fresh evidence on the facts. This may mean that the decision was correct at the time but is incorrect now. Again, the statute dictates the standard to be applied with the default being correctness.</p>\n<p>Merits review of administrative decisions are not done by the courts but by internal or external administrative review bodies. For example, each state and territory has a civil and administrative tribunal which are known by their acronyms - NCAT for NSW, VCAT for Victoria, QCAT for Queensland etc. A merits review looks at the correctness of the decision as well as considering if the decision was the “best” in the circumstances - it may overturn a correct decision for a <em>better</em> correct decision.</p>\n<blockquote>\n<p>There were traditionally four grounds for applying for judicial review of a decision:</p>\n<ul>\n<li><p>the decision was ultra vires (it was beyond the legal power or authority of the decision-maker to make the decision)</p>\n</li>\n<li><p>the decision was made in breach of the rules of procedural fairness (for example, if the decision-maker did not give the person concerned a fair hearing)</p>\n</li>\n<li><p>in the case of a court or tribunal, there was a jurisdictional error (the court or tribunal mistakenly decided that it had (or did not have) jurisdiction over a particular matter)</p>\n</li>\n<li><p>in the case of a court or tribunal, there was an error of law on the face of the record (there was a mistake of some kind in the record of the court’s decision, not in its reasons for decision).</p>\n</li>\n</ul>\n</blockquote>\n<p>Again, legislation can limit the scope of these. For example, the arbitration acts severely restrict the grounds for judicial review of an arbitration, among other things, an error of law on the face of the record is <em>not</em> reviewable.</p>\n", "score": 0 } ]

[ "standard-of-review" ]

[ { "answer_id": 48621, "body": "<p>Using it without permission is copyright infringement and illegal. </p>\n\n<p>Legally, you can try offering money to the company for the copyright or for a suitable license. For example offer them $1000 for a copy of the code licensed under the GPL license. If they accept, you are fine. </p>\n", "score": 3 }, { "answer_id": 48589, "body": "<h2>Consider a company car</h2>\n\n<p>If they aren’t using it; is it ok for you to take it without permission? </p>\n\n<p>Same principle applies to IP.</p>\n", "score": 1 } ]

[ "copyright" ]

[ { "answer_id": 93132, "body": "<p>Parents do not have the right to their child's property. See <a href=\"https://law.stackexchange.com/questions/76587/is-it-legal-for-a-parent-to-take-items-from-their-children\">this question</a>.</p>\n<p>The parent cannot sell the house as they don't own it. The minor does- there is no law that says they cannot own real estate. There are limits on what minors can and can't do with it but this simply means that the legal guardian would be involved in selling it.</p>\n<p>Even if the parent was the legal guardian they would be selling it on behalf of the child. Depending on the age of the child this would involve either their consent or this being in their best interests.</p>\n<p>The contents are more complicated. In theory, if they were also inherited by the child, no. In practice it would be difficult to prove ownership. The most reliable way to prevent this would be taking physical possession of any important items by removing either the item or the parent from the house.</p>\n", "score": 3 } ]

[ "property", "minor", "ownership", "inheritance", "guardianship" ]

[ { "answer_id": 93153, "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<h3>Child support</h3>\n<p>In Canada, under the <a href=\"https://laws.justice.gc.ca/eng/regulations/SOR-97-175/FullText.html\" rel=\"noreferrer\">Federal Child Support Guidelines</a> (used when computing child support after a divorce, and in most or all provinces after a separation), the terms are defined as follows:</p>\n<ul>\n<li><em>majority of parenting time</em> &quot;means a period of time that is more than 60% of parenting time over the course of a year&quot; (s. 2(1));</li>\n<li><em>shared parenting time</em> is when &quot;each spouse exercises not less than 40% of parenting time with a child over the course of a year&quot; (s. 9)</li>\n<li><em>split parenting time</em> describes a situation where &quot;there are two or more children, and each spouse has the majority of parenting time with one or more of those children&quot; (s. 8).</li>\n</ul>\n<p>Which of these regimes a couple falls into is significant because it <a href=\"https://www.justice.gc.ca/eng/rp-pr/fl-lf/child-enfant/guide/step6-etap6.html\" rel=\"noreferrer\">changes the approach to computing the amount owing for child support</a>.</p>\n<h3>&quot;Primary parent&quot; outside of child support</h3>\n<p>Outside of the computation of child support, there is no concrete definition for what makes someone a &quot;primary parent.&quot; Parenting arrangements or orders will just describe the division of parenting responsibilities, such as who has day-to-day care, control, and supervision of the child; decisions about residence, friends, activities, education, medical treatment, etc. Typically though, when the phrase &quot;primary parent&quot; is used, it describes the person with day-to-day care, control, and supervision of the child. But this isn't a descriptor that can be applied universally to the relationship. For example, a person might have &quot;primary parenting of the children over the holiday&quot; (<em>Wilson v Wilson</em>, <a href=\"https://canlii.ca/t/jxjjl#par163\" rel=\"noreferrer\">2023 ONSC 3387, at para 163</a>). Some courts are careful to place the term in quotes to emphasize that it isn't a precise term (e.g. &quot;she puts great stock in being the 'primary parent'&quot;: <em>Begum v Klippenstein</em>, <a href=\"https://canlii.ca/t/jxbhx#par86\" rel=\"noreferrer\">2023 ONSC 2970 at para 86</a>).</p>\n", "score": 9 } ]

[ "canada", "family-law" ]

[ { "answer_id": 93148, "body": "<h2>Breach of contract is within the wider definition of <em>illegal</em></h2>\n<p>When you install Apple OS, the installer prompts you to read and adhere to a clickwrap contract. This contract, the license agreement, only grants you a license to install and use the software if you adhere to a list of enumerated device types or cases. The enumerated cases, broadly speaking, are not allowing installation on non-Apple machines.</p>\n<p>Not following the terms of a license and creating a Hackintosh is a breach of contract. <a href=\"https://en.wikipedia.org/wiki/Breach_of_contract\" rel=\"nofollow noreferrer\">Breach of contract</a> is something that Apple can sue the person breaching the contract over - that makes it fall within the wider sphere of <em>illegal</em> or rather <a href=\"https://en.wikipedia.org/wiki/Wrongdoing#Legal_wrong\" rel=\"nofollow noreferrer\"><em>legal wrong(doing)</em></a>). But it is not <em>criminal</em>. It's a <a href=\"https://en.wikipedia.org/wiki/Civil_wrong\" rel=\"nofollow noreferrer\"><em>civil wrong(doing)</em></a>.</p>\n", "score": 2 }, { "answer_id": 93141, "body": "<p>Let me try to find a legal question here.\nThe SE main TOS page states that</p>\n<blockquote>\n<p>Stack Overflow reserves the right to refuse, suspend or terminate your\naccess to the public Network if it determines, <strong>in its sole discretion</strong>,\nthat you have in any way violated these Public Network Terms or are\notherwise ineligible to access or use the Network or Services.</p>\n</blockquote>\n<p>The question of whether SE will get sued over this policy is therefore &quot;No&quot;, they have complete discretion to kick you off.</p>\n<p>Still, maybe there is some question as to what the word &quot;illegal&quot; means. The popular meaning of illegal is &quot;prohibited by criminal law&quot;, but the broader meaning assumed on Law SE is something like &quot;may reasonably be negatively sanctioned if brought to court&quot;, and includes crimes, torts, breaches of contract, administrative fines, judicial injunctions and so on.</p>\n<p>Presumably the real intent is to prohibit uses which encourage actions that stand a reasonable chance of being found to be illegal, were the matter to be brought to court (<em>everything</em> &quot;may or may not be legal&quot;). Without calling into question the logic of such a principle in the first place, and unless you refine the principle to narrowly mean &quot;criminally prohibited&quot;, then this means &quot;is it illegal to run Mac OS on non-apple hardware&quot;. It sort of looks like it is a violation of the EULA for the operating system, which makes it copyright infringement to do so (and illegal in virtually every nation, except Iran and Eritrea).</p>\n<p>It is entirely unclear what the prohibition against &quot;illegal use&quot; is supposed to refer to. It is not universally illegal to advocate certain (unnamed) political positions, but it is in some countries. Hate speech is legal in the US, and illegal in other countries. It may be illegal to describe how to violate a software EULA in some country, though it is not, in the US.</p>\n", "score": 1 } ]

[ "software", "fair-use" ]

[ { "answer_id": 93146, "body": "<h2>That licence does not allow you to do what you want</h2>\n<p>It’s a non-commercial licence and your usage is commercial (making money).</p>\n<h2>You don’t need a licence to perform commentary or review of a book</h2>\n<p>Providing that you use as little material as necessary from the original work, commentary and review is one of the exceptions to copyright carved out by fair dealing in most English speaking jurisdictions.</p>\n<p>In the USA, the fair use exemption is not so clear as it involves a four factor balancing test. Your planned use is in favour of being fair use, your commercialisation is against.</p>\n", "score": 4 } ]

[ "copyright", "youtube", "legal-concepts" ]

[ { "answer_id": 93120, "body": "<p>It's a bit of an oversimplification. You're correct that there is a federal law against murder, <a href=\"https://www.law.cornell.edu/uscode/text/18/1111\" rel=\"noreferrer\">18 USC 1111</a>. However it applies only to a murder committed in the <a href=\"https://www.law.cornell.edu/uscode/text/18/7\" rel=\"noreferrer\">special maritime and territorial jurisdiction of the United States</a>. This covers situations like crimes committed on federal lands such as national parks or federal buildings, or crimes on US-flagged ships at sea, aircraft in flight, or in space. It does not apply to &quot;ordinary&quot; crimes committed at most locations within the US.</p>\n<p><a href=\"https://www.law.cornell.edu/uscode/text/18/part-I/chapter-51\" rel=\"noreferrer\">18 USC Chapter 51</a> covers a few other situations, such as murder of a federal officer, foreign diplomat, by incarcerated or escaped federal prisoners, US nationals murdering each other while abroad, and so forth.</p>\n<p>The idea is that these restrictions keep the laws within the enumerated powers of Congress as stated in Article I Section 8 of the US Constitution. A federal statute covering all murders throughout the US would probably be unconstitutional for this reason.</p>\n<p>So while what he says is not strictly correct, it is true that in the vast majority of cases, murders are covered by state laws and not by federal laws. Even if one was to agree with Ramaswamy that medical abortions are a form of murder, even still, no federal murder law currently on the books would apply to a typical abortion, except under very unusual circumstances.</p>\n", "score": 29 }, { "answer_id": 93121, "body": "<p><strong>This Is Not An Accurate Statement Of U.S. Constitutional Law</strong></p>\n<p>State governments have &quot;plenary&quot; (i.e. unlimited) power to enact any legislation authorized by the state's constitution which is not contrary to the U.S. Constitution or federal law.</p>\n<p>Every U.S. state has statutes defining and punishing various grades of homicide.</p>\n<p>The federal government may only enact legislation specifically authorized by the U.S. Constitution which is not, in principle, at least, plenary, although it is very broad.</p>\n<p>In practice, while the federal government has enacted federal criminal homicide statutes, those statutes are piecemeal and generally involve some interstate, international, maritime, or federal government related nexus.</p>\n<p>For example, there are quite a few federal statutes that criminalize the murder of federal officials. The federal government has piracy statutes that criminalize conduct including murder committed on the high seas where no U.S. state has jurisdiction, parallel statutes that criminalize murders connected to air travel, and statutes that criminalize murder in places where no U.S. state or territorial government has jurisdiction like unincorporated federal territories in the Pacific Ocean. Murders of members of Indian Tribes by other members of Indian Tribes on an Indian Reservation are prosecuted in federal courts by federal prosecutors rather than in state or territorial courts. The federal government has statutes like the Racketeering and Corrupt Organizations Act (RICO) that criminalize organizations and <em>de facto</em> organizations of people who commit multiple &quot;predicate crimes&quot; one of which is murder if it implicates interstate commerce. And so on.</p>\n<p>As <a href=\"https://en.wikipedia.org/wiki/Murder_in_United_States_law\" rel=\"noreferrer\">Wikipedia explains</a>:</p>\n<blockquote>\n<p>If murder is committed within the borders of a state, that state has\njurisdiction, and in a similar way, if the crime is committed in the\nDistrict of Columbia, the D.C. Superior Court (the equivalent of a\nstate court in the District) retains jurisdiction, though in some\ncases involving U.S. government property or personnel, the federal\ncourts may have exclusive jurisdiction.</p>\n<p>If, however, the victim is a federal official, an ambassador, consul,\nor other foreign official under the protection of the United States,\nor if the crime took place on federal property or involved crossing\nstate borders, or in a manner that substantially affects interstate\ncommerce or national security, then the federal government also has\njurisdiction. If a crime is not committed within any state, then\nfederal jurisdiction is exclusive, for example vessels of the U.S.\nNavy or the U.S. Merchant Marine in international waters and U.S.\nmilitary bases worldwide. Recently, the Supreme Court, in the McGirt\ndecision, reaffirmed that major crimes within the reservation\nboundaries of Native American tribes, for which a tribal member is\nsuspected, must be investigated and prosecuted by the federal, not\nstate, government. Federal penalties will apply if found guilty.</p>\n<p>In addition, murder by a member of the United States Armed Forces of a\nprisoner while under custody of the United States Armed Forces is in\nviolation of Article 118 of the Uniform Code of Military Justice and\ncan result in the perpetrator being tried by a general court-martial,\nsubjecting to certain types of jurisdictions within its own borders or\nwith foreign nations.</p>\n</blockquote>\n<p>So, yes, the federal government does have all sorts of laws prohibiting and punishing murder in a variety of specific circumstances with some federal hook. Some of those law are even generally applicable throughout the United States (e.g., the federal homicide offense of murdering a postal worker).</p>\n<p>As a matter of constitutional law, while the federal government doesn't have complete plenary power to adopt the equivalent of a state murder statute with no federal government jurisdictional hooks whatsoever (<em>see United States v. Lopez</em>,m 514 U.S. 549 (1995), which held that the federal government didn't have the power to prohibit gun possession in school zones under the authority granted to it by the Interstate Commerce Clause), it could clearly criminalize far more murders at the federal level than it does.</p>\n<p>It is unquestioned, as a matter of constitutional law, that Congress can criminalize all intrastate bank robberies and all intrastate thefts of controlled substances. Congress could regulate far more murders as well, if it wanted to do so.</p>\n<p><strong>This Stance Appeals To A GOP Minority That Thinks The Courts Have Allowed Congress To Exceed Its Limited Constitutional Authority To Legislate</strong></p>\n<p>A significant subset of conservative political activists are ideologically opposed to the breadth of federal legislative authority which the courts have permitted under the Interstate Commerce Clause and a few other less commonly used hooks (most notably power of Congress to spend federal money for the general welfare and to use that spending to bribe states to adopt substantive state policies).</p>\n<p>Mr. Ramaswamy's rhetoric is crafted to appeal to this minority within the conservative movement (the majority of both liberals and conservatives don't really care about federalism except as a tool to serve policy goals when it presents itself). But this isn't actually the law and if anyone tried to really enforce this narrow view of limited federal power across the board rather than to support selective political objectives, the conservative movement would swiftly disavow it.</p>\n<p><strong>This Does Reflect A Long Standing Bipartisan Criminal Justice Federalism Consensus</strong></p>\n<p>The federal government could also clearly devote more resources than it does to prosecuting homicides under existing federal homicide statutes, that it instead allows state governments to handle.</p>\n<p>But, while Mr. Ramaswamy isn't strictly correct that the federal government doesn't regulate murder as a matter of constitutional law authority, it is also true that the criminal justice enforcement related to homicides is predominantly a state level activity. This practice has been the living law in the United States for a very long time.</p>\n<p>For example, <a href=\"https://www.statista.com/statistics/191134/reported-murder-and-nonnegligent-manslaughter-cases-in-the-us-since-1990/\" rel=\"noreferrer\">in 2021 there were 22,900 reported non-negligent murders</a> in the United States. Of those murders, 54.4% (12,478) of them were solved, predominantly through state court criminal prosecutions, and secondarily through the death of a few hundred murders a year in the course of the offense, an attempted arrest, or by suicide shortly after committing the murder.</p>\n<p>But, there were only <a href=\"https://www.uscourts.gov/statistics/table/d-2/statistical-tables-federal-judiciary/2022/12/31\" rel=\"noreferrer\">311 federal non-negligent homicide prosecutions</a> in that year. Thus, only about 3-4% of all homicide prosecutions are brought under federal criminal statutes, and the balance are brought under state criminal statutes.</p>\n<p><em>Territorial v. Subject-Matter Federal Homicide Prosecutions</em></p>\n<p>Moreover, a large share of the federal criminal homicide prosecutions (probably at least a majority of them) involve murders on Indian Reservations or in some other circumstance where the justification for federal involvement is territorial, rather than under federal laws that are generally applicable throughout the United States.</p>\n<p>It would be unreasonable to interpret the statement from Vivek Ramaswamy that the federal government &quot;doesn't regulate murder&quot; to mean that he was saying that murder should be legal in places where the federal government has exclusive jurisdiction to the exclusion of any state government (such as the on the high seas or Indian Reservations or in unincorporated federal territory).</p>\n<p>Only about 1-2% of homicide prosecutions in the U.S. (outside of places where the federal government's authority over murder charges is territorial) are prosecuted in federal court, under federal laws without territorial limitations.</p>\n<p>To that point, I wouldn't be surprised that Mr. Ramaswamy would favor strict regulation of abortion in circumstances where there is no state or territorial or Indian Reservation jurisdiction over the issue.</p>\n<p>So, while Mr. Ramaswamy isn't accurate as a question of constitutional law about the authority of the federal government to criminalize murder, his statement does reflect what has been a widely held bipartisan policy consensus for as long as the U.S. has existed.</p>\n<p><em>Side Point: Federal Death Penalty Prosecutions Are Rare</em></p>\n<p>Incidentally, the federal government has brought about 1% of death penalty homicide prosecutions. You can count on your fingers the number of federal death penalty prosecutions committed in states without a death penalty, since the death penalty was reinstated, post-<em>Furman</em> in about 1976.</p>\n<blockquote>\n<p>From 1976 to 8 December 2016, there were 1,533 executions. . . . The\nSouth had the great majority of these executions, with 1,249; there\nwere 190 in the Midwest, 86 in the West, and only 4 in the Northeast.\nNo state in the Northeast has conducted an execution since\nConnecticut, now abolitionist, in 2005. The state of Texas alone\nconducted 571 executions, over 1/3 of the total; the states of Texas,\nVirginia (now abolitionist), and Oklahoma combined make up over half\nthe total, with 802 executions between them.</p>\n</blockquote>\n<p>(<a href=\"https://en.wikipedia.org/wiki/Capital_punishment_in_the_United_States\" rel=\"noreferrer\">Source</a>)</p>\n<p><a href=\"https://en.wikipedia.org/wiki/List_of_people_executed_by_the_United_States_federal_government\" rel=\"noreferrer\">16 executions</a> have been conducted by the federal government since 1963.</p>\n<p>Of the 16 federal executions took place since 1976, 13 took place during the last six months of the Trump Administration. <a href=\"https://en.wikipedia.org/wiki/Capital_punishment_by_the_United_States_federal_government\" rel=\"noreferrer\">Specifically</a>:</p>\n<blockquote>\n<p>The last pre-Furman federal execution took place on March 15, 1963,\nwhen Victor Feguer was executed for kidnapping and murder, after\nPresident John F. Kennedy denied clemency. . .</p>\n<p>From 1988 to October 2019, federal juries gave death sentences to\neight convicts in places without a state death penalty when the crime\nwas committed and tried. . . .</p>\n<p>No federal executions occurred between 1972 and 2001. From 2001 to\n2003, three people were executed by the federal government. No further\nfederal executions occurred from March 18, 2003, up to July 14, 2020,\nwhen they resumed under President Donald Trump, during which 13 death\nrow inmates were executed in the last 6 months of his presidency.\nSince January 16, 2021 no further executions have been performed. . .\n. There are 43 offenders remaining on federal death row. . . .</p>\n<p>The most recent person to be executed by the military is U.S. Army\nPrivate John A. Bennett, executed on April 13, 1961, for child rape\nand attempted murder.</p>\n</blockquote>\n<p>The only executions by the federal government committed in states where the death penalty was abolished in the last sixty years were Dustin Lee Honken (Iowa, executed in 2020), Corey Johnson (Virginia, executed in 2021), and Dustin John Higgs (Maryland, executed in 2021). Five other defendants were sentenced to death but died in prison or have not been executed yet, most notoriously the Boston Marathon bomber.</p>\n<p>Pro-death penalty conservatives could have used broader federal homicide legislation to expand the death penalty widely into states that have abolished the death penalty, but neither Republican nor Democratic Presidential administrations have chosen to do so, and legislators have not passed budgets or new federal criminal homicide statutes to facilitate this possibility.</p>\n<p><strong>He Is Really Proposing A Novel Federalism Based Compromise On Abortion</strong></p>\n<p>In this case, Ramaswamy is using this position to advance his political goal of trying to take a national abortion ban off the table of legitimate issues in a national Presidential election because he knows that politically, this proposal would do him more harm than good in a general election, while allowing him to continue to meet a GOP abortion litmus test by supporting abortion bans at the state level in states where there is the political will to pass them.</p>\n<p>Equally important, of course, is the fact that this stance provides him with vaguely plausible talking points that help him to strike a somewhat principled compromised between the most extreme anti-abortion advocates in the GOP base (and most of the leading GOP Presidential candidates) on one hand, and independent voters in general elections who are strongly turned off by national abortion ban proposals, on the other.</p>\n", "score": 13 }, { "answer_id": 93145, "body": "<p>I think this is inevitable in a federal system: it is difficult to imagine a country not having laws that outlaw homicides, including murder. If a group of countries decide to federate, they have two choices: try to negotiate all the homicide laws into one uniform federal code, or leave homicide as a state matter. Generally there are enough other problems for them not to want to run with the first option.</p>\n<p>The only other federal system that I know reasonably well is Australia, where each state has it's own laws for crimes against the person, crimes against property, driving, etc.</p>\n", "score": 0 } ]

[ "us-federal-government", "murder", "abortion", "federalism" ]

[ { "answer_id": 93144, "body": "<p>I recognize your difficulty, and I'm not sure about the formal legality of it (which would go to the materiality of the alteration, which if material would probably be a presentation of a false document to a TSA officer).</p>\n<p>But more practically, when you present your boarding pass and ID to the TSA officer before going through security, their system checks your boarding pass against the boarding pass in the computer system. If those don't match, you are sent back to the ticketing desk.</p>\n<p>My wife and I had to do this on a recent trip simply because folding up our boarding passes to put them in my wallet caused smudging that was enough to cause the TSA system to conclude that our boarding passes weren't in the system. This also triggered heightened bag searches and pat down searches for both of us going through security the second time around.</p>\n<p>In your shoes, I'd try my chances with a TSA officer accepting the ID v. boarding pass mismatch with your brief explanation instead. Due to the limitations of airline software, discrepancies between IDs and boarding passes are common enough for reasons like the inability of airline software to handle two word surnames, very short surnames, hyphens, and apostrophes.</p>\n", "score": 4 } ]

[ "aviation" ]

[ { "answer_id": 93139, "body": "<blockquote>\n<p>If the U.S. adds a new territory, are the people currently living there able to become president?</p>\n</blockquote>\n<p>No.</p>\n<blockquote>\n<p>Or does the territory have to become a state in order for the people to be eligible to become president?</p>\n</blockquote>\n<p>Not necessarily.</p>\n<h2>What does &quot;natural-born citizen&quot; mean?</h2>\n<p>The meaning of the natural born citizen clause of the constitution is unclear in many respects, but virtually all scholars agree that a person who was a US citizen at birth, and who has remained a US citizen until present, is a natural-born citizen.</p>\n<p>There is a small minority of scholars who insist that a US citizen at birth is only a natural-born citizen if they were born in the US (for example, Ted Cruz would not be considered a natural-born citizen). There is an even smaller minority who insist that a person must have at least one US citizen parent in order to be a natural-born citizen.</p>\n<p>But for all practical purposes, these minority viewpoints are irrelevant. The only thing that matters is whether someone was a US citizen when they were born.</p>\n<h2>Citizenship of people living in US territories</h2>\n<p>When a US territory is created, the people living there don't automatically become US citizens, and if Congress eventually gives them US citizenship, the <strong>canon of presumption against retroactivity</strong> applies: a statute should not be read to be retroactive unless there is evidence that it was intended to apply retroactively. That means the people who get US citizenship under the statute don't become natural-born citizens; they're considered to have been automatically naturalized when the statute went into effect. But if there's a statute saying that people born in the territory are US citizens at birth, then people born in the territory after the effective date of that statute are natural-born citizens, since they are citizens at birth.</p>\n<p>I will use Hawaii as an example. Hawaii became a territory in 1898. Citizenship was granted in 1900. Statehood was not granted until 1959.</p>\n<p><a href=\"https://www.law.cornell.edu/uscode/text/8/1405\" rel=\"nofollow noreferrer\">8 USC §1405</a> governs the citizenship of people born in Hawaii:</p>\n<blockquote>\n<p>A person born in Hawaii on or after August 12, 1898, and before April 30, 1900, is declared to be a citizen of the United States as of April 30, 1900. A person born in Hawaii on or after April 30, 1900, is a citizen of the United States at birth. A person who was a citizen of the Republic of Hawaii on August 12, 1898, is declared to be a citizen of the United States as of April 30, 1900.</p>\n</blockquote>\n<p>So, Hawaiians didn't become US citizens when Hawaii was annexed. They were granted US citizenship 2 years later. A person born in Hawaii on or after April 30, 1900 is a natural born citizen. Applying the presumption against retroactivity, we see that a person who was born in Hawaii between August 12, 1898 and April 29, 1900, or who was a citizen of independent Hawaii when it was annexed by the United States, was not a natural born citizen and could not have become President.</p>\n<p>In addition to the presumption against retroactivity, there is also another canon of construction that applies here: Congress could have used the &quot;is a citizen of the United States at birth&quot; language for the other two categories of Hawaiians too, but chose to omit it. Presumably, Congress acted purposefully in doing so, with the intent of granting citizenship at birth to only one of the three categories. (I can't remember whether this canon has a name.)</p>\n<h2>Can Congress grant natural-born citizen status retroactively?</h2>\n<p>If the US were to acquire a new territory and saw fit to bestow citizenship retroactively to birth on some natives of that territory, would those people be eligible for the presidency? No one knows the answer to that question.</p>\n<p>As an example of when Congress has granted citizenship retroactively, the Immigration and Nationality Technical Corrections Act of 1994 created <a href=\"https://www.law.cornell.edu/uscode/text/8/1401#h\" rel=\"nofollow noreferrer\">8 USC §1401(h)</a>, which granted citizenship retroactively to birth to individuals who had been born outside the US to a US citizen mother and alien father prior to May 24, 1934. This act was necessary because, prior to that date, only US citizen fathers could transmit citizenship, not US citizen mothers.</p>\n<p>A person granted citizenship under this statute would be over the age of 89 now, so we're unlikely to see one run for president. It's an open question whether someone who obtained US citizenship through this statute would be considered eligible for the presidency. One could argue that &quot;natural-born citizen&quot; implies a person who actually was a citizen when they were born and that retroactive grants of citizenship are a mere legal fiction that cannot override the meaning of the constitution.</p>\n", "score": 4 }, { "answer_id": 29878, "body": "<p>This issue has never been addressed, even in dicta, by any court case of which I am aware, and I've read many of the relevant case laws in articles about this issue. </p>\n\n<p>The language of the constitution is unclear on this point and its meaning in general is subject to a lot of debate by academics.</p>\n\n<p>There are legitimate reasons for both interpretations. </p>\n\n<p>Some of the analysis applying to foreign born children U.S. citizens (who are \"natural born citizens), arguably points to a theory of the requirement that would hurt residents of the newly acquired territory because that case law looks to the status of the person on the day that they were born.</p>\n\n<p>The original constitution overcame the issue for the new colonies by grandfathering in people who were in the colonies at the time that they became independent. This could be taken either as an implied precedent for newly acquired territory, or as a precedent for the fact that an exception for newly acquired territory requires express constitutional language, depending upon your approach to interpreting the text.</p>\n", "score": 2 }, { "answer_id": 29873, "body": "<p><strong>tl;dr</strong></p>\n<p>It can be complicated, and it usually comes down to the language Congress uses in the legislation that treats the addition.</p>\n<p><strong>Background</strong></p>\n<p>Article II, § 1 of the U.S. Constitution lays out the eligibility requirements for a president.</p>\n<blockquote>\n<p>No person except a natural born citizen . . . shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.</p>\n</blockquote>\n<p>To see whether someone is a &quot;natural born citizen&quot; there are a couple of places one can look.</p>\n<p>First, <a href=\"https://www.law.cornell.edu/uscode/text/8/1401\" rel=\"nofollow noreferrer\">8 U.S.C. § 1401</a> deals with nationals and citizens of the United States at birth. It details a list of circumstances in which an individual may be considered a U.S. national by birth. Setting aside most of the situations that don't appear to pertain to your question:</p>\n<blockquote>\n<p>The following shall be nationals and citizens of the United States at birth:</p>\n<p>(a) a person born in the United States, and subject to the jurisdiction thereof;</p>\n</blockquote>\n<p>The definition for &quot;United States&quot; comes from <a href=\"https://www.law.cornell.edu/uscode/text/8/1101\" rel=\"nofollow noreferrer\">8 U.S.C. § 1101</a>, which deals with both nationality and immigration. Section 1101(a)(38) explains that:</p>\n<blockquote>\n<p>The term “United States”, except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.</p>\n</blockquote>\n<p>Congress updates it frequently—for example to reflect the political union with the Commonwealth of the Northern Mariana Islands, which took effect on November 3, 1986.</p>\n<p>But 8 U.S.C. § 1101 alone probably isn't outcome determinative. It's possible that one might still be considered a natural born citizen of the United States if other legislation (<em>e.g.</em>, the covenant recognizing political union itself or a Congressional resolution) recognizes the status.</p>\n<p>For example, people still debate whether Senator John McCain is a natural born citizen under 8 U.S.C. § 1401 or by virtue of other Congressional legislation. He was born at a military installation associated with the Panama Canal Zone in 1936, which was not widely considered a U.S. territory at the time. The next year (1937), Congress passed <a href=\"https://www.law.cornell.edu/uscode/text/8/1403\" rel=\"nofollow noreferrer\">8 U.S.C. § 1403</a>, which retroactively awarded citizenship to those born in the zone on or after February 26, 1904. So some people argue that he became a natural born citizen retroactively under § 1403, while others argue he was a natural born citizen at the moment of his birth under § 1401.</p>\n<p>For territorial additions (like the Marianas), presidential eligibility likely comes down to they way in which the legislation that recognizes the union treats citizenship. Births after the effective date of the union likely face a lower hurdle to natural born citizenship, while those born before the effective date may be more dependent on a retroactive grant.</p>\n", "score": 1 } ]

[ "united-states", "president", "admission-of-new-states" ]

[ { "answer_id": 93136, "body": "<p>It is generally illegal in all US states for a landlord to change the locks on a tenant. Given your description of the facts, this person (henceforth &quot;squatter&quot;) is a tenant, lack of forms and lease notwithstanding. When a person violates the terms of a lease, the landlord's recourse is to sue the person for damages and to petition for eviction (where the sheriff removes the person from the premise). Penalties for illegal lockouts tend to be very severe, however the tenant on the lease is not the one at risk on that point.</p>\n<p>The squatter can't win in a court case against the former tenant, but he can still file paperwork which the tenant must respond to. If the tenant of record doesn't show up in court, summary judgment will be entered against him. The landlord can sue you for the rent owed.</p>\n", "score": 4 } ]

[ "sublease" ]

[ { "answer_id": 93015, "body": "<p><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>In the notorious <a href=\"https://en.wikipedia.org/wiki/Operation_Spanner#Investigation\" rel=\"nofollow noreferrer\">Spanner Case</a> in the UK in 1987, several gay men were prosecuted for aiding and abetting consensual sadomasochistic assaults upon themselves. So the answer to your question is yes, at least in the UK.</p>\n", "score": 27 }, { "answer_id": 93004, "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<h3>Aiders and abetters are liable for the primary offence</h3>\n<p><em>Criminal Code</em>, s. 21 makes <em>parties</em> to an offence liable of that offence on equal footing with the person who actually committed it:</p>\n<blockquote>\n<p>21 (1) Every one is a party to an offence who</p>\n<p>(a) actually commits it;</p>\n<p>(b) does or omits to do anything for the purpose of aiding any person to commit it; or</p>\n<p>(c) abets any person in committing it.</p>\n</blockquote>\n<p>The purpose is to &quot;make the difference between aiding and abetting and personally committing an offence legally irrelevant... whether a person personally commits or only aids and abets, he is guilty of that offence... and not some separate distinct offence.&quot; <em>R. v. Thatcher</em>, [1987] 1 S.C.R. 652.</p>\n<h3>The <em>actus reus</em></h3>\n<p>The <em>actus reus</em> that makes one a party is to <em>do or omit something</em> that assists or encourages the principal to commit the offence. <a href=\"https://canlii.ca/t/29280#par14\" rel=\"noreferrer\"><em>R. v. Briscoe</em>, 2010 SCC 13</a>.</p>\n<h3>The <em>mens rea</em></h3>\n<p>The <em>mens rea</em> requires that the aider or abetter &quot;know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed.&quot; The aider or abetter also does not need to share the perpetrator's intention. &quot;It is sufficient that he or she, armed with <em>knowledge</em> of the perpetrator’s intention to commit the crime, acts with the intention of assisting the perpetrator in its commission.&quot; <em>Briscoe</em>.</p>\n<p>&quot;Criminal liability as a party to an offence... does not require that the harm in issue be foreseeable in relation to a specific identifiable individual.&quot; <em>R. v. Natewayes</em>, 2015 SKCA 120, affirmed in 2017 SCC 5.</p>\n<h3>Application</h3>\n<p>Bill very likely knew of Bob's intention to assault someone using a gun, and, with that knowledge, Bill did something to assist Bob in commiting that offence. This would make Bill a party to an assault.</p>\n", "score": 16 }, { "answer_id": 93009, "body": "<p><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></p>\n<p>If any given law actually applies is for judges to decide, but on the face of it this sounds like a case of &quot;Beihilfe&quot; as per <a href=\"https://dejure.org/gesetze/StGB/27.html\" rel=\"nofollow noreferrer\">§ 27 Strafgesetzbuch</a> (German penal code):</p>\n<blockquote>\n<p>(1) Als Gehilfe wird bestraft, wer vorsätzlich einem anderen zu dessen\nvorsätzlich begangener rechtswidriger Tat Hilfe geleistet hat.</p>\n<p>(2) Die Strafe für den Gehilfen richtet sich nach der Strafdrohung für\nden Täter. Sie ist nach § 49 Abs. 1 zu mildern.</p>\n</blockquote>\n<p>With (1) saying that anybody aiding a crime (more literally a purposefully committed illegal act) will be punished, and (2) saying the possible punishment depends on the punishment for the crime that has been aided.</p>\n<p>(As a later addendum, the fact that Bill is the victim should not have much bearing onto the outcome, since he clearly was okay with a crime being committed; that he happened to be the victim is incidental. A German judge is also not elected and indeed completely independent, subject only to the law and his own conscience, so unlikely to respond to outside pressure. Instead this comes down to the question if Bill was aware that Bob was making a serious threat and a crime actually was planned.).</p>\n<p>Bill can also not escape this by not starting legal action against Bob since shooting somebody is &quot;gefährliche Körperverletzung&quot; (aggravated assault, I think) per <a href=\"https://dejure.org/gesetze/StGB/224.html\" rel=\"nofollow noreferrer\">StGb 224</a>, and this is an &quot;Offizialdelikt&quot;, i.e. a crime that will be persecuted by a state attorney even if the assaulted party does not seek legal action (and this would certainly uncover Bills part in the shooting).</p>\n<p>Following a very interesting comment by JanusBahsJacquet I tried to find out if Bill would have already aided a crime if Bob had not actually shot anyone. It seems that is very hard to answer and depends on the difference if that was a &quot;Vorbereitungshandlung&quot;, i.e. abstract preparation to commit a crime, or a &quot;Versuch&quot;, an attempt to commit a crime. <a href=\"https://www.bundestag.de/resource/blob/503546/12828089dd7fe3463bca80aa5d33e0d3/Strafbarkeit-von-Vorbereitungshandlungen-data.pdf\" rel=\"nofollow noreferrer\">As this source says</a></p>\n<blockquote>\n<p>Der Wille desselben, ein Rechtsgut zu verletzen, muss sich zusätzlich in einem bestimmten nach außen sichtbaren Verhalten manifestieren</p>\n</blockquote>\n<p>meaning &quot;the intent to violate the law must manifest in a distinct visible behaviour&quot; to determine if this was a Vorbereitungshandlung or an actual attempt.</p>\n<p>Arguably, making threats to shoot somebody should count as &quot;nach außen sichtbares Verhalten&quot;, so my layman's intuition would suggest that even if Bob does not shoot, Bill aided the attempt to commit a crime, which is already a criminal offence, so even if Bob does not actually shoot, Bill will still face legal consequences.</p>\n", "score": 10 } ]

[ "criminal-law", "any-jurisdiction" ]

[ { "answer_id": 93127, "body": "<p><strong>Overview</strong></p>\n<p>California's prohibition on non-competition clauses was part of the Civil Code it adopted in 1872 which was written predominantly by David Dudley Field II, whose first major accomplishment was drafting a significant overhaul and codification of civil procedure rules for New York State a couple of decades earlier that was widely emulated and became the standard framework for civil procedure until the Federal Rules of Civil Procedure were adopted in the 1930s.</p>\n<p>He was heavily influenced by European civil codes and by criticism of the common law system. He was an anti-slavery Democrat who later became a Republican and represented (unsuccessfully) the leader of the Tammany Hall's leader Boss Tweed who was the epitome of corrupt machine politics in a trial of the century class criminal case.</p>\n<p>Another reference that can be reviewed is David S. Clark, &quot;The Civil Law Influence on David Dudley Field's Code of Civil Procedure&quot;, in Mathias Reimann (ed), The Reception of Continental Ideas in the Common Law World: 1820–1920 (1993) 63–87.</p>\n<p><strong>Long Answer</strong></p>\n<blockquote>\n<p>Only three states ban employee noncompetes: California (since 1872,\nsee Edwards v. Arthur Andersen LLP, <a href=\"https://scocal.stanford.edu/opinion/edwards-v-arthur-andersen-33130\" rel=\"nofollow noreferrer\">44 Cal. 4th 937, 94</a>5 (2008));\nNorth Dakota (since 1865—before North Dakota was even a state, see\nWerlinger v. Mut. Serv. Cas. Ins. Co., 496 N.W.2d 26 (N.D. 1993)); and\nOklahoma (since 1890—before Oklahoma was a state, see Brandon Kemp,\n“Noncompetes in Oklahoma Mergers and Acquisitions,” 88 Okla. B.J. 128,\n128 (2017)).</p>\n</blockquote>\n<p>(<a href=\"https://faircompetitionlaw.com/2021/10/11/a-brief-history-of-noncompete-regulation/\" rel=\"nofollow noreferrer\">Source</a>)</p>\n<p>The cited California case at the page cited states:</p>\n<blockquote>\n<p>Under the common law, as is still true in many states today,\ncontractual restraints on the practice of a profession, business, or\ntrade, were considered valid, as long as they were reasonably imposed.\n(Bosley Medical Group v. Abramson (1984) 161 Cal.App.3d 284, 288.)\nThis was true even in California. (Wright v. Ryder (1868) 36 Cal. 342,\n357 [relaxing original common law rule that all restraints on trade\nwere invalid in recognition of increasing population and competition\nin trade].) However, <strong>in 1872 California settled public policy in favor</strong>\n<strong>of open competition, and rejected the common law “rule of</strong>\n<strong>reasonableness,” when the Legislature enacted the Civil Code.</strong> (Former\nCiv. Code, § 1673, repealed by Stats. 1941, ch. 526, § 2, p. 1847, and\nenacted as Bus. &amp; Prof. Code, § 16600, Stats. 1941, ch. 526, § 1, p.\n1834; Bosley, supra, 161 Cal.App.3d at p. 288.)Footnote 3.</p>\n<p>Today in California, covenants not to compete are void, subject to\nseveral exceptions discussed briefly below.</p>\n<p>Footnote 3: &quot;Prior to oral argument, we granted Andersen’s request\nthat we take judicial notice of various documents providing\ninformation on the history of section 16600 and its predecessor\nstatutes. (Evid. Code, §§ 452, 453, 459.)&quot;</p>\n</blockquote>\n<p><a href=\"https://en.wikipedia.org/wiki/California_Civil_Code\" rel=\"nofollow noreferrer\">Wikipedia summarizes</a> the 1872 adoption of the Civil Code in California as follows:</p>\n<blockquote>\n<p>The Civil Code of California is a collection of statutes for the State\nof California. The code is made up of statutes which govern the\ngeneral obligations and rights of persons within the jurisdiction of\nCalifornia. It was based on a civil code originally prepared by David\nDudley Field II for the state of New York (but which was never enacted\nin that state). It is one of the 29 California Codes and was among the\nfirst four enacted in 1872.</p>\n<p>Though the Code is organized in a manner similar to the inherited\nColonial Spanish and Mexican Civil Law civil codes, many of its\nprovisions are codifications of well-established American common law\nprinciples. For example, it contains a definition of consideration, a\nprinciple in the common law of contracts which has no direct\nequivalent in civil law systems. Similarly, it codifies the mailbox\nrule that communication of acceptance is effective when dropped in the\nmail, which is a feature unique to the common law.</p>\n<p>First adopted in 1872 and signed into law by then Governor Newton\nBooth, the Civil Code is divided – similarly to its civil law\nanalogues – into four divisions: &quot;the first relating to persons&quot;; &quot;the\nsecond to property&quot;; &quot;the third to obligations&quot;; &quot;the fourth contains\ngeneral provisions relating to the three preceding divisions.&quot;\nDivision One contains laws which govern personal rights while Division\nTwo contains laws which govern property rights. Division Three\ncodifies the substantive contract law of the State of California as\nwell as various regulations relating to agency, mortgages, unsecured\nloans, extensions of credit, and other areas of California law.\nDivision Four defines remedies available in lawsuits, what constitutes\na nuisance, various maxims of jurisprudence, and other miscellaneous\nprovisions which relate &quot;to the three preceding divisions.&quot;</p>\n<p>Although revolutionary for its time, the California Civil Code was\nactually the third successfully enacted codification of the substance\nof the common law. The first was the Code of Georgia of 1861 (largely\nbased on the work of Thomas Reade Rootes Cobb independent of Field),\nwhich is the ancestor of today's Official Code of Georgia Annotated.\nThen Dakota Territory beat California to the punch by becoming the\nfirst jurisdiction to enact Field's civil code in 1866.</p>\n<p>David Dudley Field II's audacity in trying to codify all of the\ngeneral principles of the common law (including the law of property,\ndomestic relations, contracts, and torts) into general statutory law\nin the form of a civil code was extremely controversial in the\nAmerican legal community, both in his time and ever since. Most U.S.\nstates (as well as most other common law jurisdictions) declined to\npursue such an aggressive codification. The Restatements of the Law\nwere developed in the 20th century as a compromise between those who\nfelt the common law was a disorganized mess and those who valued the\nflexibility and richness of the common law. Only California, North\nDakota, South Dakota, and Montana enacted virtually all of Field's\ncivil code, while Idaho partially enacted the contract sections but\nomitted the tort sections. Later, Guam borrowed much of the California\nCivil Code for its own legal system.</p>\n<p>Justice Stephen Johnson Field (who was David Field's brother and was\nlargely responsible for introducing his work to California), praised\nthe California Codes (including the Civil Code) as &quot;perfect in their\nanalysis, admirable in their arrangement, and furnishing a complete\ncode of laws,&quot; while English jurist Sir Frederick Pollock attacked the\nCivil Code as &quot;about the worst piece of codification ever produced&quot;\nand called it &quot;the New York abortion&quot; (since it was never enacted in\nthat state).</p>\n</blockquote>\n<p>What was David Dudley Field II's agenda? According to <a href=\"https://en.wikipedia.org/wiki/David_Dudley_Field_II\" rel=\"nofollow noreferrer\">this Wikipedia article</a>:</p>\n<blockquote>\n<p>After having practiced law for several years, Field became convinced\nthat the common law in America, and particularly in New York state,\nneeded radical changes to unify and simplify its procedure. 1836 was\nparticularly devastating for Field: his first wife, youngest child,\nand one of his brothers all died in the same year. To cope with his\ngrief, he paused his law practice, traveled to Europe for over a year\nand focused on investigating the courts, procedure, and codes of\nEngland, France and other countries. He then returned to the United\nStates and labored to bring about a codification of its common law\nprocedure. Upon returning, he also established his own law firm, in\nwhich he was joined by his brothers Stephen and Jonathan.</p>\n<p>Much of Field's ideas on codification and the civil procedure rules\nwere based on the 1825 Louisiana Code of Procedure. The Louisiana code\nwas drafted by jurists including Edward Livingston, Louis Lislet\n(1762–1832), and Pierre Derbigny. In turn, the Louisiana code was\ninspired by French (including the French Code of Civil Procedure of\n1806), Spanish, and Roman law, the common law tradition, and\nLivingston's Louisiana Practice Act of 1805. European civil law thus\ninfluenced American civil procedure, partially through the\nintermediary of Louisiana.</p>\n<p>Livingston helped to prepare criminal and civil codes for Louisiana,\nand <strong>Field's personal papers at Duke University Libraries reveal that\nhe had read Livingston's 1825 report on the Louisiana Civil Code.\nField was also influenced by criticism of the common law by his law\npartner Henry Sedgwick, as well as lawyer William Sampson.</strong></p>\n<p>Field devoted more than 40 years to this codification project. He\nbegan by outlining his proposed reforms in pamphlets, professional\njournal articles, and legislative testimony, but met with a\ndiscouraging lack of interest. In 1846, Field's ideas gained wider\nnotice with publication of a pamphlet, &quot;The Reorganization of the\nJudiciary&quot;, which influenced that year's New York State Constitutional\nConvention to report in favor of a codification of the laws. In 1847\nhe finally had a chance to put his ideas into official form when he\nwas appointed head of a state commission to revise court procedure and\npractice. . . .</p>\n<p><strong>In 1857, Field became chair of another state commission, this time for the systematic codification of all of New York state law except\nfor those portions already reported upon by the Commissioner of\nPractice and Pleadings. In this work he personally prepared almost the\nwhole of the political and civil codes.</strong> . . .</p>\n<p>The codification, which was completed in February 1865, was adopted\nonly in small part by the state of New York, but it served as a model\nupon which many statutory codes throughout the United States were\nconstructed. For example, although Field's civil code was repeatedly\nrejected by his home state of New York, it was later adopted in large\npart by California, Idaho, Montana, North Dakota, and South Dakota, as\nwell as the territory of Guam many years later. (Notably, Idaho\nlargely enacted the contract sections of Field's civil code but\ndeclined to enact the tort sections) . . . Thanks to Field's brother,\nStephen (who served in the California State Assembly and as\nCalifornia's fifth Chief Justice before being appointed to the U.S.\nSupreme Court), California bought into Field's codification project\nmore than any other state. California first enacted a Practice Act in\n1851 influenced by the Field Code, then in 1872 enacted Field's civil\nprocedure, criminal procedure, civil, penal, and political codes as\nthe first four California Codes (California merged Field's penal and\ncriminal procedure codes into a single code). . . .</p>\n<p>Field was originally an anti-slavery Democrat, and he supported Martin\nVan Buren in the Free Soil campaign of 1848. He gave his support to\nthe Republican Party in 1856 and to the Lincoln Administration\nthroughout the American Civil War.</p>\n<p>Field was part of the team of defense counsel that William M. Tweed\n[a.k.a. &quot;Boss Tweed&quot;] assembled to defend himself during the first\ncriminal prosecution of Tweed in 1873. Other members of the defense\nteam included John Graham and Elihu Root. This first trial ended when\nthe jury could not agree on a verdict. In a second trial in November\n1873, Tweed received a sentence of twelve years in prison and a\n$12,750 fine from judge Noah Davis.</p>\n</blockquote>\n", "score": 3 } ]

[ "united-states", "california", "legal-history", "non-compete" ]

[ { "answer_id": 93129, "body": "<p><a href=\"https://www.state.nj.us/treasury/taxation/pdf/pubs/sales/su4.pdf\" rel=\"nofollow noreferrer\">This document</a> explains what is taxable vs. exempt, and also explains how to get more definitive answers (email, call, office visit).</p>\n", "score": 3 } ]

[ "tax-law" ]

[ { "answer_id": 93122, "body": "<p>That remains to be determined. <a href=\"https://deliverypdf.ssrn.com/delivery.php?ID=710087064097094101074123011070083122015017095012001064108080020002087015024121092093101099062003019016045099094112096102000024007087059020059075075079030008115068031021076024029086119076022075108118115072090066023099101003091081000001022070030126000&amp;EXT=pdf&amp;INDEX=TRUE\" rel=\"noreferrer\">This article</a> (100 Tex. L. Rev. 56 (2021)) discusses the possibility. To start, the Constitution does not directly say that a sitting president cannot be prosecuted. The lack of an express presidential immunity and the fact that an attempt by Madison to create such an immunity is an indication of &quot;original intent&quot;. The view that an incumbent president cannot be indicted, prosecuted, convicted or punished is a policy stance set forth by the Dept. of justice, but is not constitutional law. Alito in <a href=\"https://www.supremecourt.gov/opinions/19pdf/19-635_o7jq.pdf\" rel=\"noreferrer\"><em>Trump v. Vance</em></a> points to some apparently negative consequences of allowing indictment of a sitting president, but this was in a dissenting opinion. Practical considerations of policy might argue for not prosecuting a sitting president, but the Constitution itself does not expressly forbid it.</p>\n<p>As we know from numerous SCOTUS rulings, the court is also capable of finding implicit support for a rule in the Constitution. For example theimpeachment provisions do not demand or even hint that impeachment must precede trial and punishment. An argument that prosecution would &quot;incapacitate&quot; the president is met with the fact that there is a provision for replacing an incapacitated POTUS with VPOTUS as acting president. The idea that a trial interferes with a person's ability to do their job (or that they can't adequately participate in their defense if they are doing their job) has not actually prevented ordinary people with jobs from being prosecuted for their crimes.</p>\n", "score": 6 } ]

[ "united-states", "prosecution", "us-president" ]

[ { "answer_id": 93102, "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><strong>Overview</strong></p>\n<blockquote>\n<p>If someone owns a house before marriage, would that house be exempt\nfrom asset division in divorce?</p>\n<p>For simplicity, assume that otherwise, asset picture is fairly simple\nand even (2 working spouses with similar income, no children, a shared\nsavings/checking account, similarly sized retirements accounts, no\nother properties or investments).</p>\n</blockquote>\n<p>This seemingly simple question doesn't have a simple answer.</p>\n<p>This is in part because state law on the subject varies so much.</p>\n<blockquote>\n<p>Would the answer depend on any factors other than whether the state is\nEquitable Distribution vs community property?</p>\n</blockquote>\n<p>Yes. The other reason that this is a difficult question to answer is that there are many other potentially relevant factors. This answer will provide some examples of some of the relevant facts that were not provided in the question.</p>\n<p><strong>State Law Varies Greatly</strong></p>\n<p>It is necessary to look to particular states, such as the New York and California, as suggested in the question, regarding this matter, as there is no uniformity or even guidance in federal law (there is even a common law exception to federal court jurisdiction that actually specifically prohibits federal courts from handling divorces and other domestic relations matters).</p>\n<p>There are two extreme starting points in terms of how this question is handled under state law, but many states are hybrid systems that borrow from each of these systems. Also, there are very practically important differences in detail with respect to how final outcomes are determined, even in states that have the same basic systems.</p>\n<p>Once critical details are considered, there are probably at least half a dozen basic sets of rules among the fifty U.S. states concerning the question of how a house acquired prior to marrying by one spouse before marriage is treated in a property division during a divorce, and each of those basic sets of rules has some state specific variations.</p>\n<p>This also sets aside the ubiquitous possibility in every U.S. state that these rules have been modified by a marital agreement between the spouses (such as a prenuptial agreement).</p>\n<p>There are also significant differences between states, beyond the scope of this question, regarding the inheritance rights of a spouse in a house acquired by the other spouse before the marriage began in that spouse's sole name, at death.</p>\n<p><strong>Equitable Division</strong></p>\n<p>One of the two extremes in U.S. law is the pure traditional equitable division rule, in which all property of each spouse (regardless of whose name it is titled in) may be distributed in a manner that the judge finds to be equitable, rather than equal, and the concepts of separate and marital or community property does not exist. In the traditional equitable division regime, and in some states, but not others, a divorce court may consider marital fault in some (but not all) divorces, in deciding what is equitable in divorces commenced on fault based grounds. Each of these states has both fault based and no-fault divorces, a marital fault in not considered in property divisions in no-fault divorces in these states. New York State, for example, has a mixed fault and no-fault based divorce system.</p>\n<p>In equitable division states, often a business or a pension will be allocated entirely to a spouse who is active in the business or occupation associated with that asset, and a house will be allocated to a spouse who is not involved with the business or the occupation that gave rise to the pension.</p>\n<p><strong>Community Property</strong></p>\n<p>Another of the extremes in U.S. law is the community property regime, in which property acquired before the marriage and by a gift or inheritance are separate property not subject to division in a divorce, and everything acquired during the marriage is owned 50-59 by the spouses. In a community property state, property acquired by either spouse during the marriage automatically becomes property that is owned 50-50 by the spouses immediate and often some kinds of property formally titled in only one spouse's name can't be transferred without the consent of both spouses.</p>\n<p>For example, in California, which is a community property state, a house purchased in the name of one spouse before the couple marries is initially, at least, on the day of the wedding, entirely the separate property of the spouse who owns it. But, considerations discussed below regarding appreciation and the source of payments to related to the house will sometimes muddy the waters of this analysis.</p>\n<p><strong>New York State: A Hybrid System</strong></p>\n<p>New York State is strictly speaking an equitable distribution state and a spouse does not have a present ownership interest in property titled in their spouse's name which is acquired during the marriage. But, New York State does make a distinction between separate property and marital property at the time of a divorce, so it is really a hybrid of a traditional equitable division regime and a community property regime, unlike some other states that are more pure examples of the traditional equitable division system.</p>\n<blockquote>\n<p>During the divorce both spouses have to tell the judge about their\nincome and any debts they owe. When the court grants a divorce,\nproperty will be divided equitably (though not always equally) between\nthe spouses.</p>\n<p>New York's Equitable Distribution Law recognizes marriage as an\neconomic as well as a social partnership. The law requires that a\njudge divide property as fairly as possible.</p>\n<p>The Equitable Distribution Law talks about two types of property for\npurposes of divorce: marital property and separate property. Marital\nproperty will be divided between the two spouses.</p>\n<p>Marital Property: all property either spouse bought during the\nmarriage, regardless of whose name is on the property. Pension plans\nand other retirement plans are considered marital property. The\nportion of marital property earned during the marriage will be divided\nby the court.</p>\n<p>Separate Property: property a spouse owned before the marriage, or any\ninheritance or personal injury payments or gifts from someone other\nthan the spouse during the marriage.</p>\n<p>To see the factors a court should consider in making an equitable\ndistribution award, see Domestic Relations Law § 236(B)(5)(d).</p>\n</blockquote>\n<p>(<a href=\"https://ww2.nycourts.gov/divorce/info_faqs.shtml\" rel=\"nofollow noreferrer\">Source</a>)</p>\n<p>In New York State, separate property and marital property is defined as follows:</p>\n<blockquote>\n<p>c. The term &quot;marital property&quot; shall mean all property acquired by\neither or both spouses during the marriage and before the execution of\na separation agreement or the commencement of a matrimonial\naction, regardless of the form in which title is held, except as\notherwise provided in agreement pursuant to subdivision three\nof this part.</p>\n<p>Marital property shall not include separate property as\nhereinafter defined.</p>\n<p>d. The term separate property shall mean:</p>\n<p>(1) property acquired before marriage or property acquired by bequest,\ndevise, or descent, or gift from a party other than the spouse;</p>\n<p>(2) compensation for personal injuries;</p>\n<p>(3) <strong>property acquired in exchange for or the increase in value of</strong>\n<strong>separate property</strong>, except to the extent that such appreciation is due\nin part to the contributions or efforts of the other spouse;</p>\n<p>(4) property described as separate property by written agreement of\nthe parties pursuant to subdivision three of this part.</p>\n</blockquote>\n<p>(<a href=\"https://law.justia.com/codes/new-york/2021/dom/article-13/236/\" rel=\"nofollow noreferrer\">Source</a>)</p>\n<p>The factors to be considered in the equitable property division in New York State, per the same source, are as follows:</p>\n<blockquote>\n<ol start=\"5\">\n<li>Disposition of property in certain matrimonial actions.</li>\n</ol>\n<p>a. Except where the parties have provided in an agreement for the\ndisposition of their property pursuant to subdivision three of this\npart, the court, in an action wherein all or part of the relief\ngranted is divorce, or the dissolution, annulment or declaration of\nthe nullity of a marriage, and in proceedings to obtain a distribution\nof marital property following a foreign judgment of divorce, shall\ndetermine the respective rights of the parties in their separate or\nmarital property, and shall provide for the disposition thereof in the\nfinal judgment.</p>\n<p>b. Separate property shall remain such.</p>\n<p>c. Marital property shall be distributed equitably between\nthe parties, considering the circumstances of the case and of the\nrespective parties.</p>\n<p>d. In determining an equitable disposition of property under\nparagraph c, the court shall consider:</p>\n<p>(1) the income and property of each party at the time of marriage,\nand at the time of the commencement of the action;</p>\n<p>(2) the duration of the marriage and the age and health of\nboth parties;</p>\n<p>(3) the need of a custodial parent to occupy or own the\nmarital residence and to use or own its household effects;</p>\n<p>(4) the loss of inheritance and pension rights upon dissolution of\nthe marriage as of the date of dissolution;</p>\n<p>(5) the loss of health insurance benefits upon dissolution of\nthe marriage;</p>\n<p>(6) any award of maintenance under subdivision six of this part;</p>\n<p>(7) <strong>any equitable claim to, interest in, or direct or</strong>\n<strong>indirect contribution made to the acquisition of such marital</strong>\n<strong>property by the party not having title, including joint efforts or</strong>\n<strong>expenditures and contributions and services as a spouse,</strong>\n<strong>parent, wage earner and homemaker, and to the career or career</strong>\n<strong>potential of the other party.</strong> The court shall not consider as marital\nproperty subject to distribution the value of a spouse's enhanced\nearning capacity arising from a license, degree, celebrity goodwill,\nor career enhancement. **However, in arriving at an equitable division\nof marital property, the court shall consider the direct or indirect\ncontributions to the development during the marriage of the\nenhanced earning capacity of the other spouse;</p>\n<p>(8) the liquid or non-liquid character of all marital property;</p>\n<p>(9) the probable future financial circumstances of each party;</p>\n<p>(10) the impossibility or difficulty of evaluating any component\nasset or any interest in a business, corporation or profession,\nand the economic desirability of retaining such asset or interest\nintact and free from any claim or interference by the other party;</p>\n<p>(11) the tax consequences to each party;</p>\n<p>(12) the wasteful dissipation of assets by either spouse;</p>\n<p>(13) any transfer or encumbrance made in contemplation of a\nmatrimonial action without fair consideration;</p>\n<p>(14) whether either party has committed an act or acts of\ndomestic violence, as described in subdivision one of section\nfour hundred fifty-nine-a of the social services law, against the\nother party and the nature, extent, duration and impact of such act or\nacts;</p>\n<p>(15) in awarding the possession of a companion animal, the court\nshall consider the best interest of such animal. &quot;Companion animal&quot;,\nas used in this subparagraph, shall have the same meaning as in\nsubdivision five of section three hundred fifty of the agriculture and\nmarkets law; and</p>\n<p>(16) any other factor which the court shall expressly find to be\njust and proper.</p>\n<p>e. In any action in which the court shall determine that an\nequitable distribution is appropriate but would be impractical or\nburdensome or where the distribution of an interest in a business,\ncorporation or profession would be contrary to law, the court in lieu\nof such equitable distribution shall make a distributive award in\norder to achieve equity between the parties. The court in its\ndiscretion, also may make a distributive award to supplement,\nfacilitate or effectuate a distribution of marital property.</p>\n<p>f. <strong>In addition to the disposition of property as set forth above,\nthe court may make such order regarding the use and occupancy of the\nmarital home and its household effects as provided in section\ntwo hundred thirty-four of this chapter, without regard to the form of\nownership of such property.</strong></p>\n<p>g. In any decision made pursuant to this subdivision, the court\nshall set forth the factors it considered and the reasons for its\ndecision and such may not be waived by either party or counsel.</p>\n<p>h. In any decision made pursuant to this subdivision the court\nshall, where appropriate, consider the effect of a barrier to\nremarriage, as defined in subdivision six of section two hundred\nfifty-three of this article, on the factors enumerated in paragraph\nd of this subdivision.</p>\n</blockquote>\n<p>Thus, in New York State, unlike Colorado (discussed below), appreciation in the value of separate property during the marriage is separate property and not marital property.</p>\n<p><a href=\"https://law.justia.com/codes/new-york/2021/dom/article-13/234/\" rel=\"nofollow noreferrer\">Section 234 of the New York Domestic Relations Law</a> referenced in the bolded language above states:</p>\n<blockquote>\n<p>§ 234. Title to or occupancy and possession of property.</p>\n<p>In any action for divorce, for a separation, for an annulment\nor to declare the nullity of a void marriage, the court may (1)\ndetermine any question as to the title to property arising between the\nparties, and (2) <strong>make such direction, between the parties,\nconcerning the possession of property, as in the court's\ndiscretion justice requires having regard to the circumstances of the\ncase and of the respective parties.</strong> Such direction may be made in\nthe final judgment, or by one or more orders from time to time before\nor subsequent to final judgment, or by both such order or orders and\nfinal judgment. Where the title to real property is affected, a copy\nof such judgment, order or decree, duly certified by the clerk of the\ncourt wherein said judgement was rendered, shall be recorded in the\noffice of the recording officer of the county in which such property\nis situated, as provided by section two hundred ninety-seven-b of the\nreal property law.</p>\n</blockquote>\n<p>Usually, the authority granted by Section 234 is used to enter temporary orders granting a spouse possession and use of a residence titled in the name of the other spouse until the case is concluded, although it could be applied to a post-decree decision as well.</p>\n<p>Also, while New York State now finally has &quot;no fault&quot; divorces (it was the last state in the U.S. to make this option available), it also allows spouses to commence a fault based divorce. In a fault based divorce, marital fault (e.g. having an affair) can be considered as a factor by the court in equitably dividing the couple's property in the divorce if fault is successfully established.</p>\n<p><strong>Fun Fact:</strong> In New York State, <em>family court judges don't have jurisdiction over divorces</em>, which are instead handled by the general jurisdiction trial court in the state known as the &quot;Supreme Court&quot;. New York State's apex court is called the &quot;Court of Appeals&quot;.</p>\n<p><strong>Complicating Factors</strong></p>\n<p>The reality, however, is more complicated than these extremes in most cases. Many states adopt parts of each regime, develop their own special rules, or implement the same basic system of marital property ownership and property division upon divorce in different ways.</p>\n<p><em>Appreciation And Payment Of Carrying Costs During The Marriage</em></p>\n<p>For example, Colorado is not technically a community property state, and community property rights of a spouse in marital property are not recognized during the marriage. But in Colorado, upon divorce, there is a distinction between separate property and marital property that is very similar to that found in community property states. And, in Colorado, while property owned before a marriage is not marital property, appreciation in the value of separate property during the marriage, and income from separate property, is marital property.</p>\n<p>Another issue is what payment of mortgages and other costs of maintain real estate that is separate property from funds earned from wages or investments of either spouse during the marriage, will often muddy the waters. <a href=\"https://law.stackexchange.com/questions/59867/home-community-and-separate-property/59891#59891\">California's rule in this situation</a> is non-obvious from general community property principles ands is quite tricky and technical.</p>\n<p>California allocates some appreciation of separate property which has had mortgage principal paid for in part from income earned during the marriage or marital property to community property and some of the appreciation to separate property, on a pro-rated basis determined at the time that the property is valued for divorce purposes.</p>\n<p>For example, in California, if the home was worth $100,000 net of a $100,000 mortgage at the time of the marriage, and then is then sold free and clear net of costs of sale for $400,000, then $100,000 of the proceeds are separate property, $100,000 of the proceeds are community property, and $200,000 of the proceeds are appreciation is is pro-rated between the two, in this case, evenly. so $200,000 of the proceeds is separate property and $200,000 of the proceeds is marital property. But, taxes, insurance payments, and interest payments as opposed to principal payments, do not add to the community property value of the house, as they are current expenses that don't change the value of the property under California law, even though money is fungible.</p>\n<p>In general, some states that distinguish between separate and marital property, or separate and community property, at the time of a divorce, treat appreciation in separate property and payment of carrying costs for separate property as giving rise to some marital or community property interest in that property that is traceable to appreciation during the marriage or income acquired during the marriage, while other states continue to treat property acquired before the marriage entirely as separate property even if it appreciates, and/or even if carrying costs for the property are paid for from income acquired during the marriage.</p>\n<p>In states where appreciation in the property and/or payment of carrying costs with income earned during a marriage, gives separate property a partial marital property status, these two factors often convert a house that was originally separate property almost entirely into marital property after a long marriage, while modifying its separate property status only slightly after a short marriage.</p>\n<p>In the same vein, different states that distinguish between separate property on one hand, and marital or community property on the other, treat income from separate property earned during a marriage such as rent, interest, and dividends, differently than other states do and sometimes differently than appreciation in the asset itself.</p>\n<p><em>Quasi-Community Property</em></p>\n<p>A third complicating issue is the question of &quot;quasi-community property.&quot;</p>\n<p>If property is acquired as separate property or community property in a community property state, many states which are not community property states will treaty property acquired or owned by one or more members of the couple while they lived in that community property state as if it were governed by the community property laws of the place where the property is located, or the laws of the place where it was located before it was sold and reinvested in property in the state where the divorce case is being litigated.</p>\n<p>Other jurisdictions recognize property acquired while a couple lived in a community property state and its proceeds to retain its community property v. separate property status with a &quot;quasi-community property&quot; doctrine. But, these jurisdictions, rather than applying the community property laws of the state where particular property was acquired, applies a generic set of community property laws to property acquired in any community property state during the marriage.</p>\n<p><em>Sanctions For Economic Waste</em></p>\n<p>Also, in both traditional equitable division regimes that make a separate v. marital property distinction, and in community property regimes, sometimes if the owner of the house that would otherwise be classified as separate property commits &quot;economic waste&quot; that destroys the value of marital property out of spite, or without good cause. When that happens, a court may order that the harm to the marital or community property caused by the economic waste of a spouse be remedied with a contributions from the guilty spouse's separate property.</p>\n<p><em>Marital Agreements</em></p>\n<p>Finally, almost every state allows married couples to modify the property division rules of the state as applied to that couple, in a prenuptial agreement or a postnuptial agreement (collectively, &quot;marital agreements&quot;) if it is prepared with the proper disclosures and formalities, and informed consent is given to the agreement.</p>\n<p>For example, one of the common terms of a marital agreement (especially for late in life remarriages of widows and widowers, but also in many other cases) states that upon a divorce, legal title to property will be followed strictly when making a property division, with the value of any jointly owned property split exactly equally.</p>\n<p>In other words, a marital agreement will often provide that property will be divided upon a divorce in the same way that it would be divided if the couple had never married. This is sometimes called a &quot;your's is your's, and mine is mine&quot; prenup.</p>\n<p>Marital agreements like this also often waive any right to alimony to the full extent permitted by law (which economically is almost equivalent to treating the members of the couple as if they had never married) and often waive any inheritance rights of a surviving spouse upon their spouse's death.</p>\n", "score": 3 }, { "answer_id": 93082, "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>When spouses separate, each has a right to property division that is governed by provincial legislation. I give three examples, only one of which (British Columbia) excludes a house brought into the marriage from property division. The other two (Saskatchewan and Ontario) give the <em>family home</em>/<em>matrimonial home</em> special treatment for property division and <em>do</em> include it for division, even if it was owned by a spouse prior to the marriage.</p>\n<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>A previously owned home is excluded from property division.</p>\n<p>If a spouse acquired the house before the relationship between the spouses began, it is excluded from &quot;family property&quot; for the purpose of property division: <a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_05#section85\" rel=\"nofollow noreferrer\"><em>Family Law Act</em>, s. 85</a>.¹</p>\n<p><a href=\"/questions/tagged/saskatchewan\" class=\"post-tag\" title=\"show questions tagged &#39;saskatchewan&#39;\" aria-label=\"show questions tagged &#39;saskatchewan&#39;\" rel=\"tag\" aria-labelledby=\"tag-saskatchewan-tooltip-container\">saskatchewan</a></p>\n<p>The &quot;family home&quot; is <em>not</em> exempt from property division, even if it was owned by a spouse prior to the commencement of the spousal relationship. There is a presumption that its value will be divided equally, unless a court finds that to be unfair considering extraordinary circumstances or unfair to the spouse with custody of the children. <a href=\"https://www.canlii.org/en/sk/laws/stat/ss-1997-c-f-6.3/latest/ss-1997-c-f-6.3.html\" rel=\"nofollow noreferrer\"><em>Family Property Act</em>, ss. 22-23</a>.</p>\n<p><a href=\"/questions/tagged/ontario\" class=\"post-tag\" title=\"show questions tagged &#39;ontario&#39;\" aria-label=\"show questions tagged &#39;ontario&#39;\" rel=\"tag\" aria-labelledby=\"tag-ontario-tooltip-container\">ontario</a></p>\n<p>The value of the &quot;matrimonial home&quot; is never deducted from the value of family property even if it was owned by a spouse on the date of marriage. <a href=\"https://www.ontario.ca/laws/statute/90f03#BK6\" rel=\"nofollow noreferrer\"><em>Family Law Act</em>, s. 4(1)</a>.</p>\n<p><a href=\"/questions/tagged/quebec\" class=\"post-tag\" title=\"show questions tagged &#39;quebec&#39;\" aria-label=\"show questions tagged &#39;quebec&#39;\" rel=\"tag\" aria-labelledby=\"tag-quebec-tooltip-container\">quebec</a></p>\n<p>Québec has two regimes. Before July 1, 1970, the default regime was <a href=\"https://www.quebec.ca/en/famille-et-soutien-aux-personnes/couple-famille/mariage-union-civile-ou-union-de-fait/effects/matrimonial-regimes/community-of-property\" rel=\"nofollow noreferrer\"><em>community of property</em></a>. Since July 1, 1970, the default regime is <a href=\"https://www.quebec.ca/en/famille-et-soutien-aux-personnes/couple-famille/mariage-union-civile-ou-union-de-fait/effects/matrimonial-regimes/partnership-of-acquests\" rel=\"nofollow noreferrer\"><em>partnership of acquests</em></a>. Spouses could and can choose a non-default regime or otherwise alter the scheme to their specific desires by contract.</p>\n<p>But before property division under either regime, the value of <em>family patrimony</em> is to be divided equally between spouses (<a href=\"https://www.legisquebec.gouv.qc.ca/en/document/cs/ccq-1991?langCont=fr#se:416\" rel=\"nofollow noreferrer\">art 416 CCQ</a>). <a href=\"https://www.quebec.ca/en/famille-et-soutien-aux-personnes/couple-famille/mariage-union-civile-ou-union-de-fait/effects/family-patrimony/residences-used-by-family\" rel=\"nofollow noreferrer\">The family residence is part of the family patrimony</a> (<a href=\"https://www.legisquebec.gouv.qc.ca/en/document/cs/ccq-1991?langCont=fr#se:415\" rel=\"nofollow noreferrer\">art 415 CCQ</a>). This right cannot be renounced by a marriage contract (<a href=\"https://www.legisquebec.gouv.qc.ca/en/document/cs/ccq-1991?langCont=fr#se:423\" rel=\"nofollow noreferrer\">art 423 CCQ</a>).</p>\n<hr />\n<p>^{1. For background about B.C.'s change from a &quot;family purpose&quot; model (where property was included for division if it was used for a family purpose) regime to an &quot;excluded property&quot; model (where all property is included unless on a fairly precise &quot;excluded&quot; list, such as pre- and post-relationship property), see the <a href=\"https://www.courthouselibrary.ca/sites/default/files/inline-files/family-law-white-paper-2010.pdf\" rel=\"nofollow noreferrer\">2010 White Paper on the <em>Family Relations Act</em> Reform</a>. It does not discuss why it was not recommended that the family residence not be always counted as family property.}</p>\n", "score": 2 } ]

[ "property", "divorce" ]

[ { "answer_id": 93094, "body": "<p>Hire a lawyer, who is licensed and trained in law and who is obligated to be honest with you and advocate for your interests, and get him/her to review your business plan. He/she will point out real or potential problems with your ideas and plans, show you legal gray areas of the law and advise you on what you can and can't do.</p>\n<p>Some lawyers offer a free initial consultation. As an example, you can browse and read specialties and qualifications for legal help in New Jersey: <a href=\"https://www.justia.com/lawyers/business-law/new-jersey\" rel=\"noreferrer\">https://www.justia.com/lawyers/business-law/new-jersey</a></p>\n<p>There's no substitute for real legal advice; not consulting with an attorney before signing contracts or starting a business can put in in real legal jeopardy. Don't ask legal advice from randos on the Internet, as they are not trained or licensed, and it is illegal to act or work as a lawyer without being licensed.</p>\n<p>As ohwilleke points out, you may want or need to consult several different lawyers.</p>\n", "score": 40 }, { "answer_id": 93093, "body": "<p>When you have a problem with your car, you take it to a person who is trained to fix cars and knows about them. You pay money for their time and expertise.</p>\n<p>This is more or less the same situation- you consult a lawyer.</p>\n", "score": 9 } ]

[ "united-states", "business", "is-x-legal", "new-jersey", "legal-research" ]

[ { "answer_id": 93115, "body": "<h3>An indictment is not the deprivation of liberty.</h3>\n<p>An indictment is actually part of the due process of law that is guaranteed in the Constitution. Deprivation of liberty means incarceration. The processes that are generally part of incarceration are the initial court hearings after arrest and the trials to gain conviction for offenses.</p>\n", "score": 3 }, { "answer_id": 93116, "body": "<p>The purpose of the grand jury system is to ensure that innocent people don't have their names dragged through the mud by the mere fact of being accused of a crime. The US founding fathers were concerned that the government could announce that, say, they were indicting ein for murder, let that accusation ruin your reputation by being reported in papers, and later withdraw the charges when it turned out there was no evidence. The accusation would still sully your reputation.</p>\n<p>The grand jury system avoids that by forcing the prosecutor to lay out their evidence to the grand jury in secret. These proceedings are sealed so that your reputation isn't damaged if the grand jury declines to indict. If the grand jury does choose to indict, that indictment stays sealed until the prosecutor makes it public.</p>\n<p>Prosecutors may keep indictments sealed for many reasons. But in the case of large, long-running investigations, the most common reason is so that they can unseal indictments against a number of people at once. If you're investigating an organized crime family, for example, you might develop evidence against Little Fish first, go to the grand jury, and indict him. With that sealed indictment, you might convince Little Fish to turn state's evidence and implicate Medium Fish. You go to the grand jury and secure an indictment against Medium Fish and leverage that, eventually, to indict the Big Fish you're after. At the end, you unseal all the indictments at once and arrest everyone. If the indictments were made public immediately, it would be a major tip-off to the organized crime family that investigators were closing in on Big Fish.</p>\n", "score": 3 }, { "answer_id": 93111, "body": "<p><a href=\"https://www.justice.gov/usao/justice-101/charging\" rel=\"nofollow noreferrer\">Grand jury proceedings and statements</a> are sealed in their initial state, for example you can't go listen in on the hearing. At some point a legal document may be produced, and filed with the court: <a href=\"https://www.mdd.uscourts.gov/content/sealed-criminal-document-procedures\" rel=\"nofollow noreferrer\">they are sealed,</a> unless they are unsealed. <a href=\"https://www.justice.gov/atr/case-document/file/986336/download\" rel=\"nofollow noreferrer\">Here</a> is a motion to unseal an indictment, and here is a <a href=\"https://www.justice.gov/opa/page/file/1037496/download\" rel=\"nofollow noreferrer\">motion to seal</a> an indictment. You will notice that in both cases the US attorney simply says &quot;we request that the indictment be (un)sealed&quot;. <a href=\"https://www.law.cornell.edu/rules/frcrmp/rule_6\" rel=\"nofollow noreferrer\">FRCP 6</a> requires secrecy, see (e)(3) for the &quot;exceptions&quot;. Essentially, secrecy is in the nature of the grand jury process, which does not determine guilt, it only determines if there is enough evidence to formally charge. It is a filtering tool that decides if there is probable cause for an arrest.</p>\n<p>Public records laws all have exceptions built in for various purposes, one of them being that secret court records are not subject to otherwise mandatory release. There are no clauses to the effect that a secret record must be released after a particular period of time (this is distinct from declassification).</p>\n", "score": 2 } ]

[ "united-states", "due-process", "grand-jury", "indictment", "constitutional-rights" ]

[ { "answer_id": 92947, "body": "<p>No, you would be guilty of perjury. In order to go through the legal formality, you have to obtain a license, Washington example (King County) seen <a href=\"https://kingcounty.gov/%7E/media/depts/records-licensing/recorders-office/documents/MLAPPpdf.ashx?la=en\" rel=\"noreferrer\">here</a>. You must swear that you are single, divorced, or widowed. If you leave the box unchecked, you won't get a license. If you are married and check any box, you have committed perjury.</p>\n", "score": 28 }, { "answer_id": 92952, "body": "<p>New York's Domestic Relations Law explicitly contemplates the licensing and solemnization of second marriages for already-married couples. However</p>\n<ul>\n<li>I haven't read it closely enough to determine whether a clerk is required to consider granting a license to such a couple or it within the clerk's discretion to refuse;</li>\n<li>the law explicitly authorizes clerks to require proof of the existing marriage, so this provision would not meet your goal if the clerk does demand that proof (it leaves room for the clerk's discretion but I wonder whether that is to cover situations where the parties are well known to the clerk, e.g. in small towns); and</li>\n<li>failing to declare the existing marriage probably constitutes perjury as noted in another answer.</li>\n</ul>\n<p>Section 15(1)(a) in full, with emphasis added:</p>\n<blockquote>\n<p>1. (a) It shall be the duty of the town or city clerk when an application for a marriage license is made to him or her to require each of the contracting parties to sign and verify a statement or affidavit before such clerk or one of his or her deputies, containing the following information.  From party one:  Full name, place of residence, social security number, age, occupation, place of birth, name of father, country of birth, maiden name of mother, country of birth, number of marriage.  From party two:  Full name, place of residence, social security number, age, occupation, place of birth, name of father, country of birth, maiden name of mother, country of birth, number of marriage.  Both parties shall also be required to present to the clerk documentary proof of age in the form of an original or certified copy of a birth record, a certification of birth issued by the state department of health, a local registrar of vital statistics or other public officer charged with similar duties by the laws of any other state, territory or country, a baptismal record, a passport, an automobile driver's license, any government or school issued identification card that contains a photograph of the applicant, a life insurance policy, an employment certificate, a school record, an immigration record, a naturalization record, a court record or any other document or record issued by a governmental entity, showing the date of birth of such parties.  The said clerk shall also embody in the statement if either or both of the applicants have been previously married, a statement as to whether the former spouse or spouses of the respective applicants are living or dead and as to whether either or both of said applicants are divorced persons, if so, when and where and against whom the divorce or divorces were granted and shall also embody therein a statement that no legal impediment exists as to the right of each of the applicants to enter into the marriage state.  The town or city clerk is hereby given full power and authority to administer oaths and may require the applicants to produce witnesses to identify them or either of them and may examine under oath or otherwise other witnesses as to any material inquiry pertaining to the issuing of the license, and if the applicant is a divorced person <strong>the clerk may also require</strong> the production of a certified copy of the decree of the divorce, or <strong>proof of an existing marriage of parties who apply for a license to be used for a second or subsequent ceremony</strong>; provided, however, that in cities or towns the verified statements and affidavits may be made before any regular clerk or designee of the clerk's office.</p>\n</blockquote>\n<p>The drafting is a bit sloppy, but the intent seems clear. In light of this it is difficult to imagine an interpretation of the bigamy statute that would criminalize a &quot;second or subsequent&quot; marriage of a married couple. Nonetheless, as noted above, this may not solve the problem presented in the question.</p>\n", "score": 19 }, { "answer_id": 92998, "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>This is legal though uncommon in England - I did it nine days after my marriage abroad precisely because it was the easiest and cheapest way to get a marriage certificate in English. We arranged it with my local senior registrar in advance; unfortunately he did not inform his colleague performing the ceremony about this, causing a slight delay when we said &quot;no&quot; to her final check as to whether we were single, divorced or widowed. We now have two wedding anniversaries each year.</p>\n<p>The relevant current position is set out in Section 13(2)(h)(iii) of the <a href=\"https://www.legislation.gov.uk/uksi/2015/207/part/3/made?view=plain\" rel=\"noreferrer\">Registration of Marriages Regulations 2015</a>, though this repeats provisions in earlier regulations.</p>\n<blockquote>\n<p>(2) In column 4 the registrar must enter the condition of the parties to the marriage in the following manner— (h) ... if the marriage is between two parties who have previously been through a form of marriage with each other ... and neither of them has since married a third party, then ... (iii) if the ceremony was performed for the avoidance of doubt as to the validity of a previous ceremony, enter the words “Previously went through a form of marriage at … on …”, inserting the particulars of the place and date of the previous ceremony;</p>\n</blockquote>\n<p>and part of our marriage certificate looks like</p>\n<p><a href=\"https://i.stack.imgur.com/YkHDs.png\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/YkHDs.png\" alt=\"enter image description here\" /></a></p>\n", "score": 11 }, { "answer_id": 92953, "body": "<p>I know two people who have married the same person twice for cultural reasons. In each case the husband was a Westerner; one bride was Indonesian, the other Bengali. Each bride had married in a Western country first; her parents didn't mind her marrying someone from outside their religion, provided she married within the norms of her culture. The parents wanted their friends and relatives to see that their daughter had indeed married properly, to someone who at least <em>dressed</em> as a Muslim or Hindu groom, and that she wasn't just shacking up with a Westerner.</p>\n<p>IMHO bigamy is about an intention to deceive, and that was missing from these two sets of marriages.</p>\n", "score": 10 }, { "answer_id": 92969, "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>The <a href=\"https://en.wikipedia.org/wiki/Edmunds_Act\" rel=\"noreferrer\">Edmunds Act, of 1882</a>, was passed into law by the 47th Congress. Despite its age, it was not repealed.</p>\n<p>On page 3, it reads,</p>\n<blockquote>\n<p>Every person who has a husband or wife living who, in a Territory or other place over which the United States have exclusive jurisdiction, hereafter marries another, whether married or single [...]</p>\n</blockquote>\n<p>It is not an infringement on this statute to marry the &quot;same&quot; person again. Only &quot;another&quot;.</p>\n<p>The <a href=\"https://travel.state.gov/content/travel/en/international-travel/while-abroad/marriage-abroad.html\" rel=\"noreferrer\">Department of State</a> states [sic]:</p>\n<blockquote>\n<p>If you get married abroad and need to know if your marriage will be recognized in the United States and what documentation may be needed, contact the office of the Attorney General of your state of residence in the United States.</p>\n</blockquote>\n", "score": 6 }, { "answer_id": 93001, "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>This explicitly is not bigamy, which is defined in English law as a second marriage <em><strong>to another person</strong></em>.</p>\n<blockquote>\n<p>Whosoever, being married, shall <strong>marry any other person</strong> during the life\nof the former husband or wife, whether the second marriage shall have\ntaken place in England or Ireland or elsewhere, shall be guilty of\nfelony, and being convicted thereof shall be liable</p>\n<p><Sub>^{<a href=\"https://www.legislation.gov.uk/ukpga/Vict/24-25/100\" rel=\"nofollow noreferrer\">Offences Against the Person Act (1861)</a></Sub>}</p>\n</blockquote>\n<p>Since no other person is involved, whatever this is, it's not bigamy.</p>\n", "score": 4 }, { "answer_id": 93058, "body": "<p>The bigamy law of Indonesia reads:</p>\n<p>Artikel 279.</p>\n<p>(1) Met gevangenisstraf van ten hoogste vijf jaren wordt gestraft:</p>\n<p>1°. hij die een huwelijk aangaat, wetende dat zijn bestaand huwelijk of zijne bestaande huwelijken daartegen een wettig beletsel opleveren.</p>\n<p>2°. hij die een huwelijk aangaat, wetende dat het bestaande huwelijk of de bestaande huwelijken van de wederpartij voor deze daartegen een wettig beletsel opleveren.</p>\n<p>This is different from the current Dutch criminal code</p>\n<p>Artikel 237<br />\n1 Met gevangenisstraf van ten hoogste vier jaren of geldboete van de vierde categorie wordt gestraft:</p>\n<p>1°.hij die opzettelijk een dubbel huwelijk aangaat;</p>\n<p>2°.hij die een huwelijk aangaat, wetende dat de wederpartij daardoor een dubbel huwelijk aangaat</p>\n<p>The Indonesian code refers to an existing marriage being a legal impediment to a second marriage. The Dutch code refers to a 'double marriage'.</p>\n<p>Under Indonesian law marriage is a religious act recorded by the state, never ever a civil act of union, and Article 1 of the Marriage Act of 1974 and related court decisions makes it extremely clear that a marriage is conducted by a religious leader, and the state is only recording the act that has already taken place. However, for Muslims, the state is involved in the religious proceedings, while for non-Muslims this takes place only after the fact.</p>\n<p>Of course historically marriage in many countries didn't even involve a religious leader, let alone the state, and the Indonesian words for 'marriage', are both Arabic words meaning sexual intercourse and/or marriage, i.e. 'kawin' and 'nikah'.</p>\n<p>The decision of the Constitutional Court in 46/PUU-VIII/2010 makes it clear that a purely Islamic marriage that does not involve the state's hand is still valid, providing it complied with Syariah law.</p>\n<p>An unrecorded marriage in Indonesia is referred to as 'nikah siri'. This term is often used to describe any form of cohabitating couple who have not undergone any kind of religious ceremony whatsoever.</p>\n<p>The term nikah siri is similar to that of نكاح العرفي or nikah 'urfi. <a href=\"https://en.wikipedia.org/wiki/Nikah_%27urfi\" rel=\"nofollow noreferrer\">https://en.wikipedia.org/wiki/Nikah_%27urfi</a> However siri/sirri are used only in Indonesia and Saudi Arabia.</p>\n<p>The practice of unrecorded marriages/nikah siri is very common in Indonesia, and gives rise to bigamy in that a man requires his wive(s) permission to marry further women.</p>\n<p>According to all the sources I can find, if you perform (Muslim) nikah with the same person twice then that is meaningless, and while it's quite common to do so, the second 'marriage' cannot possibly be a marriage.</p>\n<p><a href=\"https://islamqa.info/en/answers/149267/he-did-the-marriage-contract-with-a-girl-but-did-not-tell-his-parents-and-he-wants-to-do-the-marriage-contract-again-in-their-presence\" rel=\"nofollow noreferrer\">https://islamqa.info/en/answers/149267/he-did-the-marriage-contract-with-a-girl-but-did-not-tell-his-parents-and-he-wants-to-do-the-marriage-contract-again-in-their-presence</a></p>\n<p><a href=\"https://www.zawaj.com/askbilqis/doing-nikah-twice/\" rel=\"nofollow noreferrer\">https://www.zawaj.com/askbilqis/doing-nikah-twice/</a></p>\n<p><a href=\"https://questionsonislam.com/question/nikah\" rel=\"nofollow noreferrer\">https://questionsonislam.com/question/nikah</a></p>\n<p>Since the second 'marriage' seems to be acceptable and indeed possibly desirable for familial harmony, while the second marriage does not create a new marriage, it does not seem that it is illegal to do so.</p>\n<p>According to Catholic law, married people cannot remarry. They must have their existing marriage pronounced void. Article 1127 of Canon law provides 'It is forbidden to have another religious celebration of the same marriage'. 'Celebration' here refers to 'performing a marriage'.</p>\n<p>It would appear that it might violate Indonesia's bigamy law for two Catholics to marry again.</p>\n<p>Since it can be difficult to register a marriage many years later, it's likely common for Indonesians of all religions to 'marry again', ignoring the fact of the earlier religious wedding. It is not likely anyone would ever be prosecuted for this, since the state has the goal of regularizing everyone's paperwork, i.e. making sure people have marriage certificates and so on, and getting this done is more important than the specific precise details....</p>\n", "score": 0 } ]

[ "criminal-law", "new-york-state", "bigamy" ]

[ { "answer_id": 93101, "body": "<p>If a contract calls for work on a shift by shift basis and doesn't contain any termination clause, the default assumption would be that the contractor can be terminated at any time without notice or severance.</p>\n<p>But, this said, not everyone classified by the person hiring them as an independent contractor is really an independent contractor for the purposes of the law. It isn't at all uncommon for a business to classify someone as an independent contractor improperly when that person is legally an employee with all of the rights of an employee under the relevant legal definitions of an employee.</p>\n<p>The determination of whether someone is an independent contractor or an employee is based upon the facts and circumstances of the relationship and not simply by the agreement of the parties. Few people who work on a shift by shift basis for a single firm are actually independent contractors. Most are actually employees.</p>\n", "score": 1 }, { "answer_id": 93112, "body": "<p>Assuming the contractor is actually a contractor, cancelling the contract would be governed by the contract itself. Many contractors use non-refundable deposits and include notice periods for this reason.</p>\n<p>If there is nothing about cancelling the contract, the company can cancel it. They would potentially be liable for damages incurred to the client because of this such as missing other paid work or non-refundable expenses. Claiming these damages would involve going through small claims court.</p>\n<p>Note that if no work was done, the contractor is not entitled to payment for the work- just other damages suffered.</p>\n", "score": 1 } ]

[ "canada", "common-law", "labor-law", "british-columbia" ]

[ { "answer_id": 93083, "body": "<p><a href=\"https://laws-lois.justice.gc.ca/eng/acts/R-8.6/page-1.html\" rel=\"nofollow noreferrer\">Royal Assent can be signified by one of two modes</a>: (1) &quot;in Parliament assembled&quot;; or (2) &quot;by written declaration.&quot; It was the latter mode by which Assent was signified <a href=\"https://canadagazette.gc.ca/rp-pr/p1/2023/2023-05-20/html/parliament-parlement-eng.html\" rel=\"nofollow noreferrer\">on April 27, 2023</a>:</p>\n<blockquote>\n<p>On Thursday, April 27, 2023, the Right Honourable Richard Wagner, acting in his capacity as Deputy of the Governor General, signified assent in His Majesty’s name to the bills listed below. Assent was signified by written declaration, pursuant to the Royal Assent Act, S.C. 2002, c. 15....</p>\n</blockquote>\n<p>Several justices of the Supreme Court of Canada, as well as the Secretary and Deputy Secretary to the Governor General are deputies of the Governor General:\nsee their commissions in <a href=\"https://publications.gc.ca/collections/collection_2021/sen/Y4-441-4.pdf\" rel=\"nofollow noreferrer\">The Journals of the Senate, 44th Parl, 1st Sess., November 25, 2021</a>. (Note that their commissions currently exclude from them the power of &quot;signifying Royal Assent in Parliament assembled,&quot; the first of the two listed modes of Royal Assent above.)</p>\n<p>The power to appoint deputies comes from the <a href=\"https://laws-lois.justice.gc.ca/eng/const/FullText.html\" rel=\"nofollow noreferrer\"><em>Constitution Act, 1867</em>, s. 14</a> and the <a href=\"https://www.collectionscanada.gc.ca/obj/001060/f2/1940/cgc_p2-0_v081_n012_t002_000_19471001_p00000.pdf\" rel=\"nofollow noreferrer\">Letters Patent constituting the office of the Governor General</a>.</p>\n<p>Section 14:</p>\n<blockquote>\n<p>It shall be lawful for the Queen, if Her Majesty thinks fit, to authorize the Governor General from Time to Time to appoint any Person or any Persons jointly or severally to be his Deputy or Deputies within any Part or Parts of Canada, and in that Capacity to exercise during the Pleasure of the Governor General such of the Powers, Authorities, and Functions of the Governor General as the Governor General deems it necessary or expedient to assign to him or them, subject to any Limitations or Directions expressed or given by the Queen; but the Appointment of such a Deputy or Deputies shall not affect the Exercise by the Governor General himself of any Power, Authority, or Function.</p>\n</blockquote>\n<p>Letters Patent, s. VII:</p>\n<blockquote>\n<p>And Whereas by The British North America Acts 1867 [<em>Constitution Act, 1867</em>] to 1946, it is amongst other things enacted that it shall be lawful for Us, if We think fit, to authorize Our Governor General to appoint any person or persons, jointly or severally, to be his Deputy or Deputies... Now We do hearby authorize and empower Our Governor General... to appoint any person or persons... to be his Deputy or Deputies...</p>\n</blockquote>\n<p>This is also mirrored in the provinces, where the Deputy Lieutenant Governor is typically the Chief Justice of the province.</p>\n<p>Royal Assent is reported in the Canada Gazette, the official newspaper of the Government of Canada. There are <a href=\"https://www.canada.ca/en/public-services-procurement/gazette/advanced-search.html?exctq=wagner&amp;wb-srch-sub=\" rel=\"nofollow noreferrer\">many other examples of Royal Assent being signified by the Chief Justice</a>, acting in his or her capacity as Deputy of the Governor General.</p>\n", "score": 11 }, { "answer_id": 93080, "body": "<p><a href=\"https://en.wikipedia.org/wiki/Royal_assent#Canada_2\" rel=\"noreferrer\">Wikipedia</a>:</p>\n<blockquote>\n<p>Under the Royal Assent Act, 2002, the alternative practice of granting assent in writing, with each house being notified separately, was brought into force. The speaker of the Senate or a representative reads to the senators the letters from the governor general regarding the written declaration of royal assent. <strong>As the act provides, royal assent is to be signified—by the governor general or by a deputy, usually a Justice of the Supreme Court.</strong></p>\n</blockquote>\n<p>(Emphasis added)</p>\n<p>No mention of the identity of the person granting royal assent is to be found in the (rather short) <a href=\"https://laws-lois.justice.gc.ca/eng/acts/R-8.6/page-1.html\" rel=\"noreferrer\">Royal Assent Act 2002</a>.</p>\n<p>The <a href=\"https://laws-lois.justice.gc.ca/eng/const/page-1.html#h-3\" rel=\"noreferrer\">constitution</a> provides that the monarch may authorize the governor general to appoint deputies:</p>\n<blockquote>\n<p>14 It shall be lawful for the Queen, if Her Majesty thinks fit, to authorize the Governor General from Time to Time to appoint any Person or any Persons jointly or severally to be his Deputy or Deputies within any Part or Parts of Canada, and in that Capacity to exercise during the Pleasure of the Governor General such of the Powers, Authorities, and Functions of the Governor General as the Governor General deems it necessary or expedient to assign to him or them, subject to any Limitations or Directions expressed or given by the Queen; but the Appointment of such a Deputy or Deputies shall not affect the Exercise by the Governor General himself of any Power, Authority, or Function.</p>\n</blockquote>\n<p>Wikipedia on <a href=\"https://en.wikipedia.org/wiki/Deputy_of_the_Governor_General_of_Canada\" rel=\"noreferrer\">Deputy of the Governor General of Canada</a>:</p>\n<blockquote>\n<p>Currently, the secretary to the governor general, the deputy secretary to the governor general, and the justices of the supreme court are called upon to act as deputies of the governor general; when the latter are acting in this capacity, they are addressed as The Honourable the Deputy of Her Excellency the Governor General. The deputy's commission will read as follows: [...]</p>\n</blockquote>\n<p>I couldn't find much more on this in official sources, neither on the site of the Governor General's office nor in that of the Supreme Court. But I did find a couple of news articles reporting the resignation of Governor General Julie Payette and noting that the Chief Justice would assume the role while the office was vacant.</p>\n", "score": 6 }, { "answer_id": 93097, "body": "<p>Jen's answer above is either insufficient or requires clarification (I don't have privileges to post comments at this time)</p>\n<p>Jen points out that The Governor General has appointed Richard Wagner as her Deputy, as published in <a href=\"https://publications.gc.ca/collections/collection_2021/sen/Y4-441-4.pdf\" rel=\"nofollow noreferrer\">https://publications.gc.ca/collections/collection_2021/sen/Y4-441-4.pdf</a>. However, The text of the commission clearly and explicitly states &quot;<em>... <strong>all the powers</strong>, authorities and functions vested\nin and of right exercisable by me as Governor General, <strong>saving and excepting the powers of</strong> dissolving, recalling or proroguing the Parliament of Canada, of appointing members of the Ministry and of <strong>signifying Royal Assent</strong> in Parliament assembled</em>&quot;</p>\n<p>It seems to me that Richard Wagner has the power to signify Royal Assent by written declaration. This limits him to giving assent to non-spending bills. (thank you @alexg for the clarification). Given that royal assent is done for the sake of tradition, and the GG does not have the discretion to decline giving assent, the practical function of assent is to stamp a &quot;valid date&quot; on new legislation, but nothing more. Ie, the only thing gained by delegating this power to Deputies is that the inevitable royal assent can be given with less delay than if only the GG had the power.</p>\n<p>The commission also indicates the powers are available to Wagner &quot;<em>...whether I be absent form Canada or not</em>&quot;, rather than only at times the Governor General is &quot;unavailable&quot;. The two terms, &quot;unavailable&quot; and &quot;absent from Canada&quot; are clearly not interchangeable, but this point is moot in the case of the Wagner commission; I merely point it out because @Jen uses the wrong terminology. Legislating is important business. Let's get the language right. A more correct description would be &quot;the Governor General has unconditionally delegated most powers...&quot;. The effect is that when a Governor General power is required, either Wagner or the General Governor can be contacted, with equal effect, at the discretion of the power seeker. It makes no practical difference for royal assent, but in other cases like making regulations, it could mean that a Deputy can make a regulation that is different than the GG would have made. I think there is reason for concern regarding the unconditional delegation of powers, but not because of royal assent powers.</p>\n", "score": 2 } ]

[ "canada", "constitutional-law", "legislation" ]

[ { "answer_id": 93108, "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>In England and Wales, with the exception of <a href=\"https://www.gov.uk/government/publications/private-prosecutions/private-prosecutions\" rel=\"noreferrer\">private prosecutions</a>, complainants don't 'press' (or drop) charges.</p>\n<p>There are several public authorities that can prosecute criminal offences but generally we talk about circumstances that involve the police and the Crown Prosecution Service (CPS).</p>\n<p>When a crime is reported to the police the police investigate. When the police complete their investigation they refer the case and send the evidence to the CPS. (A minor offence such as low value shoplifting can be handled by the police, although if the case goes to court it must be reviewed by the CPS before the first hearing.)</p>\n<p>Generally <a href=\"https://www.cps.gov.uk/publication/code-crown-prosecutors\" rel=\"noreferrer\">the CPS decides whether to prosecute</a> based on 'the Full Code Test'. In short:</p>\n<ol>\n<li><p>&quot;Is there enough evidence against the suspect to provide a realistic prospect of conviction?&quot;</p>\n</li>\n<li><p>&quot;Is it in the public interest to prosecute?&quot;</p>\n</li>\n</ol>\n<p>(In urgent situations the CPS might decide it's necessary to decide based on 'the Threshold Test'.)</p>\n<p>The CPS prosecutes on behalf of the Crown, not the complainant. A criminal case is named along the lines of Rex/Regina or R. v Alex, not Bob v Alex.</p>\n<p>Sometimes it may be difficult to proceed with prosecution if a complainant (or witness) decides not to cooperate or sometimes the CPS might decide not to prosecute because of the complainant's circumstances. But the CPS is allowed to prosecute without the complainant's approval or cooperation.</p>\n<p>Under the <a href=\"https://www.cps.gov.uk/legal-guidance/victims-right-review-scheme\" rel=\"noreferrer\">Victims' Right to Review Scheme</a>, in some circumstances a complainant can seek a review of a CPS decision <em>not</em> to prosecute or decision to stop a prosecution.</p>\n", "score": 8 }, { "answer_id": 93106, "body": "<p>The idea of a victim pressing or dropping charges is largely a myth. It is true that the law may take the victim's wishes into account for minor offenses but neither the police nor the prosecution service need their permission.</p>\n<p>It'd be a terrible thing if this was the case- you'd give every criminal the incentive to intimidate or silence their victim.</p>\n<p>In this case the police would continue to investigate and would charge Alex with some kind of assault (depending on the exact nature of the attack). Given the nature of the crime, the prosecution service could likely secure a conviction without Bob.</p>\n", "score": 5 }, { "answer_id": 93107, "body": "<p>Bob cannot drop charges, that's up to the police and the prosecutor.</p>\n<p>What <em>can</em> happen though is that if Bob was the only witness, and without Bob's witness statement it is unlikely that Alex would be convicted, and Bob refuses to be a witness, then police and prosecutor may give up on trying to solve the case and convict Alex. On the other hand, if by chance there were two police officers in the restaurant who saw everything that happened and who are reliable witnesses for Alex's crime, then the prosecution will continue. A real case will be somewhere in between, so the prosecutor will decide what the chances of a conviction are.</p>\n", "score": 2 } ]

[ "united-kingdom", "criminal-law", "england-and-wales" ]

[ { "answer_id": 92834, "body": "<p>No, as a non-EU/EEA/CH citizen, you don't benefit from the freedom of movement and work given to EU citizens by Union law.<br />\nDepending on the national law of the country you're doing your masters in, you may be able to do an internship in that country</p>\n<p>If you wish to do an internship in other EU countries, you must follow the appropriate rules as a non-EU citizen in the country you wish to do one</p>\n", "score": 5 } ]

[ "european-union" ]

[ { "answer_id": 31613, "body": "<p>You are perfectly within your rights not to tip. Unless you start your dining experience with &quot;I'm not going to be tipping you tonight, just to let you know.&quot; you will get the same service as anyone else.</p>\n<p>Most businesses are within their rights to ask you to leave for any reason except those explicitly prohibited by law. So conceivably if you started off with the preceding sentence, the manager could ask you to leave.</p>\n<p>Not tipping wait staff at most restaurants is still an awful thing to do. No customers like tipping.</p>\n<p>Unfortunately, tipped staff can and usually are paid well below the conventional minimum wage. That they can be, is codified into law and would take a substantial amount of effort to change. Business owners are able to push the cost of paying their employees a livable wage onto their customers, and we are forced to accept it.</p>\n<p>It's a hideously flawed system that is ever so slowly changing, but it doesn't change the fact that if everyone decided not to tip, the wait staff in 95% of restaurants wouldn't be able to survive on their 'wages'.</p>\n<p>So you are within your rights not to tip, you probably won't suffer anything negative unless you are aggressively up front about the fact that you aren't going to tip, and you will be punishing the person with the least power in the equation for the fact that you don't like how the system works over here.</p>\n<p>Tipping a bartender is different and usually less necessary, and more likely to be drink is four bucks and a bit, here's a fiver keep the change. Tipping less or more than that may change the speed at which you get refills or attention.</p>\n", "score": 11 }, { "answer_id": 31609, "body": "<blockquote>\n <p>Is there any legal obligation whatsoever for the customer to tip? I\n know some businesses have a mandatory minimum tip or service charge\n which is clearly shown in writing, I am excluding these from my\n question.</p>\n</blockquote>\n\n<p>No. There is no such legal obligation.</p>\n\n<blockquote>\n <p>Is it legal for the employee to retaliate against a bad tipper?</p>\n</blockquote>\n\n<p>It depends on the method for retaliation. For instance, some conduct might be disorderly or violent enough to be sanctioned by the penal code, or it might subject the customer to a risk of communicable diseases/infections, or reasonably cause the customer to feel frightened/harassed, etc.</p>\n", "score": 4 }, { "answer_id": 31637, "body": "<p>Part One: Tipping is not required by law but there is a social stigma about not tipping, to the point that tipping anything below 20% will make most Americans blush, even if the service is exceptionally crummy. Tipping in the U.S. is a reward system that allows the customer to reward exceptional service and punish abysmal service. It is not unheard of for customers who will tip 0% to leave a note detailing reasons why they found the service so bad that they left no reward. On the flip side, it's not unheard of for over 20% tips to come in. Famously Far Right Talking Head Rush Limbaugh is rumored to leave tips of at least 100% for his meals and several other nice celebrities are known to have a larger tip than necessary.</p>\n\n<p>Most minimum wage laws do allow employers who have employees receiving tips to pay well under minimum wage, but these can same employees can make in excess of minimum wage depending on the night, the type of restaurant, and even the section of tables they are working.</p>\n\n<p>Part 2:</p>\n\n<p>Depends on the retaliation. Staff may sit bad tippers with consistently poor staff, but this is anecdotal. Teenagers are typically the worst across the board tippers so they tend to receive slower service as are some foreigners where tipping is not practiced as regularly (in Japan, for example, tipping is considered extremely rude, as it implies that the individual receiving the tip will soon be out of a job for their poor work, and will need the cash to help out during this time). As mentioned else where, endangering the health of a customer such as spitting in the food of a consistently poor tipper is illegal. Either way, retaliation is not the best course of action because the key to a better tip is better service.</p>\n\n<p>As a final rule, since it is not discussed, counter service that put out a tip jar has a lower expectation to receive a tip for service and there is little stigma against not tipping at these places than there is for not tipping at a dining service.</p>\n", "score": 3 }, { "answer_id": 89732, "body": "<p>Is there any legal obligation whatsoever for the customer to tip?</p>\n<ul>\n<li>A tip is a gratuity, not an obligation. A mandatory tip a surcharge. Given that, certainly tip is not an obligation.</li>\n</ul>\n<p>Is it against a bad tipper?</p>\n<ul>\n<li>IMHO restaurants, although receive public and generate revenues from sales, restaurants are not public places but private. Therefore a restaurant can ban you for any reason, including non tipping people.</li>\n</ul>\n<p>Any side effect against waitresses when customers don't tip?</p>\n<ul>\n<li>certainly yes. Waitresses are expected to get tips and share these tips among co-workers aliviating the burden to pay salaries from the restaurant owner. The owner therefore may retaliate against that employee that does not generate tips or even let go (or make go) the employee.</li>\n</ul>\n", "score": 1 } ]

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

[ { "answer_id": 93054, "body": "<blockquote>\n<p>What awards can I expect? In what ways would a judge's decisions about\nawards be legally limited? $500? Interest? Time spent pursuing\ncollections? Filing fee? Anything else? My research so far suggests\n$500 plus reasonable (less than credit card) interest.</p>\n</blockquote>\n<p>Your lawsuit would be for breach of contract, probably filed in California small claims court for this small dollar amount.</p>\n<p>An award for breach of contract includes:</p>\n<ol>\n<li><p>the amount not paid pursuant to the contract,</p>\n</li>\n<li><p>pre-judgment interest from the date that payment was due at the statutory rate in California (the legal rate specified in the contract applies until the contract is superseded by the verdict, but if the prejudgment interest rate is not specified in the contract, the rate is ten percent per annum from the date of the breach, California Civil Code § 3289),</p>\n</li>\n<li><p>post-judgment interest at the statutory rate in California (<a href=\"https://law.justia.com/codes/california/2007/ccp/685.010-685.110.html\" rel=\"nofollow noreferrer\">10% per annum in a contract if not otherwise specified</a>), and</p>\n</li>\n<li><p><a href=\"https://law.justia.com/codes/california/2007/ccp/685.010-685.110.html\" rel=\"nofollow noreferrer\">out of pocket costs incurred in filing the lawsuit</a> (typically, the filing fee, the service of process fee, postage, copying costs incurred for trial exhibits, and <a href=\"https://law.justia.com/codes/california/2007/ccp/685.010-685.110.html\" rel=\"nofollow noreferrer\">any court fees incurred to collect the judgment</a> if it is entered).</p>\n</li>\n</ol>\n<p>Attorney fees are not available unless the contract says so. You are not entitled to any recovery for time spent pursuing collections.</p>\n<p>Often you have have a collections agency collect it for a percentage of the amount recovered (probably 50% in a claim of this size) plus a small fee, although they might not accept such a small dollar amount debt to collect. The main virtue of this is that it hurts the credit of the person who owes the money, a harm to the non-paying customer that is often far worse than not paying the amount owed on time.</p>\n<blockquote>\n<p>Are there any other legal disincentives for this behavior?</p>\n</blockquote>\n<p>A well drafted contract can provide for an award of attorney fees incurred in collecting the debt, can set a non-usurious interest rate and late fees for non-payment, and can take steps like requiring a deposit up front, or consenting to service of process by mail, to make collection more likely and to create stronger incentives to pay.</p>\n<p>Also, if the non-payment rate is low enough and the value of your time doing what you normally get paid to do is high, it may not make economic sense to pursue bad debt which takes some time and some money to get a small potential recovery, as opposed to letting it slide and doing more work that does pay.</p>\n<p>A small claims lawsuit is probably ten to thirty hours of work for which you will not be compensated even if you win. Depending upon your average hourly rate for your labor, and the percentage of your billings that go uncollected, it may not make economic sense to collect the unpaid bill, or you may want to delegate the job to someone else whose effective hourly rate of labor value is lower.</p>\n<p>Courts are cost effective places to collect large debts, and can be cost effective if many people owe you money and you can mass produce your collections process (as, for example, credit card companies do). But courts are often not cost effective for collecting one off small dollar amount debts, despite the streamlined process and reduced filing fees that are available in small claims court.</p>\n<blockquote>\n<p>if only a fraction of contractors seek justice, and the award never\nexceeds the originally agreed upon amount, then the rational decision\nwould seem to be, don't pay the contractor.</p>\n</blockquote>\n<p>Consumers are not purely rational actors on a transaction by transaction basis in these matters. The vast majority of the time, people pay as agreed even though they could get away with paying less by forcing the person who did business with them to sue them to get paid. On a case by case basis, this is often not rational, but as a long term strategy for all transactions that a consumer enters into, it often does make rational sense.</p>\n<p>In small dollar transactions, blacklisting people from future business and harming their credit records is usually enough of an incentive to make uncollectible invoices an acceptable cost of doing business. But a good business person does evaluate every customer to whom trade credit is extended for creditworthiness if the customer does not pay in advance.</p>\n<p>On the other hand, as a business person, you may have a strategic interest in pursuing every unpaid invoice even if it isn't cost effective to do so when considering that unpaid invoice in isolation, in order to instill in your customers the knowledge that when you say you will sue them if you aren't paid, that you are making a credible threat. This may discourage people from not paying you in the first place.</p>\n", "score": 22 } ]

[ "california", "breach-of-contract", "civil-judgment" ]

[ { "answer_id": 93104, "body": "<p><strong>Short answer</strong></p>\n<blockquote>\n<p>Does an MLAT request have an age limit?</p>\n</blockquote>\n<p>Not really. But there is little or no legal authority resolving this question definitively.</p>\n<p><strong>Long answer</strong></p>\n<blockquote>\n<p>Treaties on Mutual Legal Assistance in Criminal Matters (MLATs) enable\nlaw enforcement authorities and prosecutors to obtain evidence,\ninformation, and testimony abroad in a form admissible in the courts\nof the Requesting State....MLATs require the Requested State to\nprovide the Requesting State with certain kinds of assistance or\nevidence such as documents, records, and testimony, provided the\nrequirements of the treaty are satisfied. The process is streamlined\nthrough the establishment of a “Central Authority” within each country</p>\n</blockquote>\n<p>(<a href=\"https://www.justice.gov/criminal-oia/file/1498806/download\" rel=\"nofollow noreferrer\">Source</a>)</p>\n<p>Ultimately, what is covered by an MLAT depends upon the exact language of the treaty in question. An MLAT is typically a bilateral treaty between two countries only, so most countries have dozens of separate MLATs that apply to different countries. In order to write this answer, I reviewed a representative sample of MLATs, all of which tend to follow a similar model. This was possible because these treaties tend to be quite short.</p>\n<p>Typically, a mutual legal assistance treaty (MLAT) is limited to &quot;<strong>criminal matters</strong>&quot;, but expressly excludes military justice cases, national security cases, and political offenses.</p>\n<p>Newer MLATs often also sometimes exclude petty offenses such as less serious misdemeanors and traffic offenses from their definition of &quot;criminal matters&quot;.</p>\n<p>On the other hand, MLATs often including prosecutions of violations of government regulations, and civil forfeiture cases, in their definition of &quot;criminal matters&quot;. They do this either by including them in the express language of the treaty itself, or through statements in an official commentary to the treaty prepared during negotiations over the treaty between the countries that are parties to it.</p>\n<p>The context of what is allowed in an MLAT in the treaty itself also makes clear that the term &quot;criminal matters&quot; includes suspected criminal matters where it has not yet been established definitively that a crime has been committed at all. Half of the reason for an MLAT is to assist law enforcement in one country in the process of investigating suspected crimes, just as they would domestically. An MLAT doesn't only pertain to prosecutions of already identified suspects whose crimes are already well established.</p>\n<p>Apart from this very thin level of guidance, however, an MLAT typically does not tightly define what constitutes a &quot;criminal matter&quot;.</p>\n<p>Extradition treaties usually require that a person be extradited to a requesting country for a crime only if the producing country has an offense similar in character and severity of punishment to that of the requesting country. But MLATs typically do not require &quot;dual criminality&quot; to compel the producing country to assist the requesting country in obtaining evidence for a criminal prosecution by the requesting country.</p>\n<blockquote>\n<p>Would the answers to the above also apply to the alleged victim, for\nexample they were too young at the time of the crime for an MLAT to be\nused to investigate whatever crime they were a victim of?</p>\n</blockquote>\n<p>The age of the alleged victim would be irrelevant to whether something was a criminal matter which an MLAT can be used to investigate or gather evidence regarding.</p>\n<p>Nothing in the concept of an MLAT or the typical terms of an MLAT would suggest that this is the case. Nothing suggests that offense against juveniles, from child abuse to child molestation to theft from children, cannot be investigated using the MLAT process.</p>\n<blockquote>\n<p>Would the alleged perpetrator's age be a factor, for example if they\nwere at the time of the crime (or still are) under the age of criminal\nresponsibility in either the UK or the other country. Could that\nprevent an MLAT being used?</p>\n<p>Would it be based on the age of criminal responsibility (nine years of\nage in England &amp; Wales), or the age that the country considers\ncitizens to be adults (I believe is 16 in England &amp; Wales)?</p>\n</blockquote>\n<p>There is little or no academic commentary, and little or no case law, addressing the question of whether juvenile delinquency offense that would be crimes if committed by adults count as &quot;criminal matters&quot; for purposes of an MLAT.</p>\n<p>Ultimately this question would usually be resolved by the &quot;Central Authority&quot; in the state receiving a request for assistance under the MLAT interprets it.</p>\n<p>The term &quot;criminal matters&quot; in an MLAT, however, is typically given a fairly broad definition to the extent that it is defined at all, as noted above.</p>\n<p>Also, an MLAT is frequently used in criminal investigations before the identity or age of the offender or suspect is known.</p>\n<p>For example, an MLAT could certainly be used to investigate a suspected bike theft gang that appeared to be operating across the border between the Netherlands and Belgium, even if there was a reasonable chance that some or all of the members of the gang were minors, but law enforcement wasn't yet sure who was involved in the gang.</p>\n<p>So, the more plausible reading of the term &quot;criminal matters&quot; in an MLAT, in most cases, is that for purposes of the MLAT, an offense that would be a criminal matter if committed by an adult, does not cease to be a criminal matter merely because it was committed by a minor.</p>\n<p>This would be a fair reading of these treaties, even if an offense may be official classified for domestic purposes as &quot;juvenile delinquency&quot; or something similar when it is committed by a minor, rather than being usually handled by the criminal justice system for adult offenders.</p>\n<p>This being said, there certainly is a legitimate argument that could be made that juvenile offenses should not count as &quot;criminal matters&quot; for purposes of an MLAT, at least when domestic criminal laws make that distinction. MLATs are rarely clear on this point, and it is fair, to argue at least, that something which isn't defined formally as a &quot;criminal matter&quot; in the requesting country's domestic law shouldn't count as a &quot;criminal matter&quot; for purposes of the MLAT.</p>\n<p>People suspected of engaging in conduct that would be a crime if committed by an adult, however, will not generally have standing to participate in the treaty implementation process. An MLAT is generally implemented through government to government interaction through each country's &quot;Central Authority&quot;, in which a suspected criminal or investigation target has no involvement. And, as previously noted, decisions regarding what is covered by the treaty are usually going to be made by the Central Authority of the country receiving a request for legal cooperation from the Central Authority of another country.</p>\n<p>So, juvenile's charged with offenses that would be crimes if committed by adults are in a poor position procedurally to argue that an MLAT should be interpreted in a narrow manner to exclude their case, and would have only a weak argument to support that position, even if they could.</p>\n", "score": 1 } ]

[ "united-kingdom", "criminal-law", "jurisdiction", "treaty", "juvenile-law" ]

[ { "answer_id": 93103, "body": "<p>Not necessarily, but also possibly.</p>\n<p>Google Books may (or may not) have a license to distribute images of the book covers in question. This license would be between Google and the owner of the copyright of the book cover. Just because Google has a license to distribute the image of the book cover to you does not mean that you have a license to distribute the image of the book cover to your customers.</p>\n<p>However, depending on jurisdiction, using the book cover to identify a book might also be legal under relevant fair use statutes.</p>\n<p>It is also possible that the particular book cover is not protected by copyright. For example, a particular book cover might have entered public domain.</p>\n<p>If this question is not a hypothetical, you should probably consult a lawyer.</p>\n", "score": 4 } ]

[ "united-states", "copyright", "fair-use" ]

[ { "answer_id": 93096, "body": "<p>A properly cited case will include a reference to <a href=\"https://law.stackexchange.com/questions/89453/how-to-decode-a-citation-to-a-case-reporter\">a case reporter, online database, or neutral citation</a>. To confirm that the case exists, you would have to track down the purported reporter/journal/database and query whether the case exists at that location.</p>\n<p>There is <a href=\"https://law.meta.stackexchange.com/questions/261/online-legal-references\">a meta post</a> that presents online legal research tools. Many universities and courts have <a href=\"https://en.wikipedia.org/wiki/Public_Law_Libraries_(U.S.)\" rel=\"nofollow noreferrer\">public law libraries</a> that have access to printed reporters and/or online databases.</p>\n", "score": 3 }, { "answer_id": 93100, "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>For absolute certainty, you could do what the court in the linked Chat-GPT case did: contact the clerk of the court that issued the alleged opinion and ask if that opinion really exists.</p>\n<p>In the case of cases reported in the various leading case reporters, however, free Google searchable services will generally have full text copies that can be found online. These resources have close to 99% of published appellate court opinions that are reported in recognized case reporters in the U.S. Secondary materials are often hard to get online for free, but primary legal authorities are usually easy to find.</p>\n<p>Westlaw, Lexis, and some specialized subject matter services like tax publishers, often also have unpublished or unreported decisions that would not be revealed by such a search. But, while the vast majority of cases decided are unpublished, the vast majority of cases cited in legal briefs are published decisions that are reported in recognized case reporters. And, in some courts, citations to unpublished opinions, must be accompanied by the full text of those decisions or are entirely forbidden.</p>\n<p>So, you could restrict inquiries to court clerks to cases whose existence is not verified from free sources on the Internet.</p>\n", "score": 1 } ]

[ "united-states", "legal-research", "legal-citation" ]

[ { "answer_id": 93099, "body": "<p>Usually, an order would specify what happens. There is no hard and fast rule in this situation.</p>\n", "score": 4 } ]

[ "criminal-law", "australia", "family-law", "new-south-wales", "domestic-abuse" ]

[ { "answer_id": 49450, "body": "<h2>No</h2>\n\n<p>Your information is slightly <a href=\"https://www.organdonation.nhs.uk/helping-you-to-decide/about-organ-donation/faq/consent/\" rel=\"nofollow noreferrer\">wrong</a>. Families do not have the <em>legal</em> right to override the wishes of the prospective donor, however, the ultimate legal decision maker (where donor consent has been given) is the medical practitioner. The donor or the family can influence that decision but they can’t dictate it. Most doctors will not harvest in opposition to the family’s wishes but that is a matter that is legally within the doctor’s discretion.</p>\n", "score": 2 } ]

[ "united-kingdom" ]

[ { "answer_id": 93090, "body": "<p>In the U.S. it does not. U.S. has strong Castle Law doctrines and self-defense laws that allow the use of firearms for self-defense within the home. The sign is that the homeowner is armed and will defend himself if there is an intruder. Florida is also a stand your ground state which means that in public, self-defense is valid use of force for civilians even if they have the ability to flee the would be criminal.</p>\n<p>As anecdotal evidence, when I was living in the state, my boss was telling me the story of how he got a gun and went to do some paperwork at the sheriff's office. When the deputy received the paperwork, he saw that the gun was going to be used for home defense and told my boss, &quot;In the case of home defense, if, God forbid someone enters your home looking to do harm to you and yours, remember: Shoot to kill. It's less paperwork for us.&quot;</p>\n", "score": 4 } ]

[ "united-states", "florida" ]

[ { "answer_id": 92710, "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>Since &quot;lying&quot; is not a clearly-defined legal concept, we need to look at a specific kind of (non)statement. Some lies are plainly illegal, for instance saying in the context of a sale that &quot;this column is made of pressure-treated lumber&quot; when in fact it is make of sand and Elmer's glue is fraud. A receptionist being told to say &quot;Mr. Smith is at a conference in New York&quot; when he is actually drunk in Chicago is a legal lie. Now the question is, who can refuse to tell this lie (without suffering employment consequences), and on what grounds?</p>\n<p>Generally, in the US you can be ordered to tell such a legal lie as part of your employment duties. If I refuse, I can be fired. If you refuse, you can request a reasonable accommodation under Title VII of the Civil Rights Act of 1964, since you proffer that your religion requires you to tell the truth / forbids you from telling a falsehood. If you make a claim for a religious accommodation, then the issue becomes whether there is a reasonable alternative. Such an accommodation might be that you instead say &quot;Mr. Smith is not available&quot;; or perhaps someone else who does not have a religious objection will be forced to act as receptionist for the day.</p>\n<p>This is specifically about religion. &quot;I don't want to&quot; or any similar idea does not provide protection against being fired. However, bear in mind that there is no official list of approved religions and their beliefs which the courts will refer to in determining whether your refusal was protected. If you claim &quot;As a Pastafarian, I can't lie&quot;, the courts will not accept the premise that declaring yourself to be Pastafarian (a parody &quot;religion&quot;) is valid. The available governmental resources on the fine line between general moral code and religious beliefs are quite sparse.</p>\n", "score": 21 }, { "answer_id": 92715, "body": "<h2>Not usually</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>You may only be dismissed in Australia for <a href=\"https://business.vic.gov.au/business-information/staff-and-hr/ending-employment/dismiss-staff-properly\" rel=\"noreferrer\">fair</a> reason. These are:</p>\n<blockquote>\n<ul>\n<li>poor performance</li>\n<li>misconduct</li>\n<li>dangerous behaviour</li>\n<li>refusing to follow instructions</li>\n<li>no further need for the position (redundancy or retrenchment)</li>\n</ul>\n</blockquote>\n<p>Refusing to do as you are told would fall under “refusing to follow instructions”. However, an “instruction” must be both lawful and reasonable. Depending on the lie, it might not be lawful or reasonable. If so, you can’t be fired at all.</p>\n<p>If it is a lawful and reasonable instruction then there are not grounds to instantly fire someone.</p>\n<p>Even when you have a reason, except for gross misconduct, you can’t dismiss an employee unless and until they have been given a fair hearing to explain themselves and have been given the opportunity to “mend their ways”. Even for gross misconduct, they still must be given an opportunity to justify their conduct.</p>\n", "score": 12 }, { "answer_id": 92722, "body": "<p>You can be fired for anything, or nothing at all. Whether the reasons stated would hold up in court when challenged is another matter entirely. And a company wanting to force their employees to lie as part of their job isn't going to have any problems with having their HR department lie about the reason you were being fired. They'll just make something up that sounds believable enough to a judge that the judge will go along with it.</p>\n<p>And even if not, going back to a job after such an experience isn't a good idea so you'd still be out of a job (though the court might order them to pay you a decent sum as a severance).</p>\n<p>I've experienced something similar (though this wasn't about being told to tell lies) myself. Company wanted to fire me for medical reasons, which is illegal. So they made up an excuse that I &quot;had not met my contractual targets&quot; (while I was on sick leave), despite no such targets ever having been defined, and despite me being unable to reach any targets because I was on medical leave, WITH their own medical evaluation team agreeing I was unable to work.\nThey decided to not risk a court proceeding when I threatened to sue and instead consented with paying me a good severance package.</p>\n", "score": 4 }, { "answer_id": 92741, "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>In some circumstances, a whistleblower, fired for revealing illegal practices or unsafe working conditions, could have grounds for a wrongful-termination suit. One such law is section 11(c) of the Occupational Health and Safety Act (OHSA). A lawyer could actually face discipline under their bar association for making material, false statements in the scope of their representation of a client, or knowingly allowing their advice to be used to commit a crime or fraud, although they are then supposed to withdraw from representing that client..</p>\n<p>However, you are most likely thinking of a case in the news recently (February 2023), in which a teacher claims that she considers the school district policy, requiring her to say something to students that she doesn’t agree with, which she calls a “lie” (even though there is no statement of fact involved, and even though she’s already allowed not to say anything on that subject) and says is against her religion.</p>\n<p>In other contexts, teachers clearly can get fired for teaching their own personal religious beliefs instead of the approved curriculum, or for refusing to teach a required topic at all. Teachers’ religious liberty does not, under current precedent, give them a right to teach Creationism in biology class, the Book of Mormon in history class, or that the world’s social problems are all caused by the internal contradictions of late Capitalism. In practice, though, teachers who didn’t agree with one part of the curriculum they were given more often get out of it passive-aggressively: they skip over it, or put it last on the syllabus and run out of time for it.</p>\n<p>Almost no one would actually want a broad legal doctrine that no one can be fired for refusing to say what they consider “a lie,” and what narrower one a sympathetic judge might create is a matter of speculation.</p>\n", "score": 0 } ]

[ "employment", "any-jurisdiction" ]

[ { "answer_id": 93069, "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<h3>A person is deemed to not be guilty unless convicted</h3>\n<p>In Canada, by s. 6 of the <em>Criminal Code</em>, &quot;a person shall be deemed to not be guilty of the offence until he is convicted.&quot; This is also bolstered by s. 11(d) of the <em>Canadian Charter of Rights and Freedoms</em> which guarantees the right &quot;to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.&quot;</p>\n<h3>There is always a chance that the tier of fact is not convinced beyond a reasonable doubt</h3>\n<p>The accused (and therefore their lawyer) cannot be sure that the evidence will leave the trier of fact (judge or jury) with no reasonable doubt that the accused committed the crime. Thus, the accused and their lawyer can only &quot;know&quot; the accused is guilty in the colloquial sense (in that they did the things that could be found to be a crime). However, they cannot <em>know</em> that they will be guilty in law. There is always a chance that the trier of fact is not convinced.</p>\n<p>Ways that the Crown's case can fall apart at trial:</p>\n<ul>\n<li>what appeared to be convincing to the parties just isn't convincing to the trier of fact</li>\n<li>a key witness or evidence becomes unavailable</li>\n<li>it turns out critical evidence was obtained contrary to constitutional principles</li>\n<li>a key witness's credibility or reliability crumbles on cross examination</li>\n<li>the prosecution is complacent in diligently moving the trial forward and the trial drags on to the point that a stay of proceedings is warranted (e.g. in jurisdictions with strict rights to timely trials)</li>\n</ul>\n<h3>The interest in truth-seeking is not the only component of a fair trial</h3>\n<p>Fair trials should seek the truth, but they should also be timely (<a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16057/index.do\" rel=\"nofollow noreferrer\"><em>Jordan</em></a>), and they should also not rely on evidence obtained contrary to the <em>Charter</em> (<a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7799/index.do\" rel=\"nofollow noreferrer\"><em>Grant</em></a>). Fair trials are not only about securing convictions when a person did the things that could constitute an offence if proven.</p>\n<blockquote>\n<p>At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.</p>\n<p><em>R. v. Harrer</em>, <a href=\"https://canlii.ca/t/1frhf#par45\" rel=\"nofollow noreferrer\">[1995] 3 SCR 562, at para 45</a></p>\n</blockquote>\n<h3>The lawyer's duty</h3>\n<p><a href=\"http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1934/49.html\" rel=\"nofollow noreferrer\"><em>Tuckiar v. R</em> [1934] HCA 49</a>:</p>\n<blockquote>\n<p>He had a plain duty, both to his client and to the Court, to press such rational considerations as the evidence fairly gave rise to in favour of complete acquittal or conviction of manslaughter only. No doubt he was satisfied that through [an interpreter] he obtained the uncoloured product of his client's mind, although misgiving on this point would have been pardonable; but, even if the result was that the correctness of [another witness]'s version was conceded, it was by no means a hopeless contention of fact that the homicide should be found to amount only to manslaughter. <strong>Whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted.</strong> The subsequent action of the prisoner's counsel in openly disclosing the privileged communication of his client and acknowledging the correctness of the more serious testimony against him is wholly indefensible. It was his paramount duty to respect the privilege attaching to the communication made to him as counsel, a duty the obligation of which was by no means weakened by the character of his client, or the moment at which he chose to make the disclosure. No doubt he was actuated by a desire to remove any imputation on Constable McColl. But he was not entitled to divulge what he had learnt from the prisoner as his counsel. Our system of administering justice necessarily imposes upon those who practice advocacy duties which have no analogies, and the system cannot dispense with their strict observance.</p>\n</blockquote>\n<p>A laywer's obligation is to put forward on behalf of their client their best efforts. Whether they &quot;know&quot; their client is guilty of the offence charged or not, to do otherwise amounts to a dereliction of duty and weakens the protections afforded all of us who believe in the rule of law: Arthur Maloney, Q.C., &quot;The Role of the Lawyer in Society&quot; (1979) <a href=\"https://www.canlii.org/en/commentary/doc/1979CanLIIDocs139\" rel=\"nofollow noreferrer\">9 Manitoba Law Journal 351</a>.</p>\n", "score": 3 } ]

[ "criminal-law", "professional-ethics", "moral-duty" ]

[ { "answer_id": 93056, "body": "<h2>Stop: possibly</h2>\n<p>The standard for initiating a traffic stop is named after Terry v. Ohio, 392 U.S. 1 (1968): <a href=\"https://en.wikipedia.org/wiki/Terry_stop\" rel=\"nofollow noreferrer\">Terry stop</a>. The standard is rather simple: Initiating the stop only requires <strong><a href=\"https://en.wikipedia.org/wiki/Reasonable_suspicion\" rel=\"nofollow noreferrer\">reasonable suspicion</a></strong>.</p>\n<p>If their computer claims that the driver's license of the car owner is expired or suspended, that is reasonable suspicion to at least stop the car to check if the owner is driving it and if the license really is expired.</p>\n<h2>Arrest: possibly</h2>\n<p>To facilitate an arrest, the next level of scrutiny is needed: <strong><a href=\"https://en.wikipedia.org/wiki/Probable_cause\" rel=\"nofollow noreferrer\">probable cause</a></strong>. Generally, there is little requirement on when a police report is to be written, but contemporary reports (at the same time or close to) are typical.</p>\n<h2>Example of rising through the ranks</h2>\n<p>Alice, 16 years old, dent in the fender from a fenderbender. That is not even a warning's worth and does not rise reasonable suspicion.</p>\n<p>Bob cop's computer still reads the license plate and Bob gets a flashing light: the car owner's license is expired. That is reasonable suspicion that there is an offense if the owner and Alice are the same person. But Bob needs to verify that. The reasonable suspicion can go away if for example the car was owned by Charles, a 60-year-old gentleman, then the suspicion that Alice's license is expired goes away. But the stop in itself was reasonable!</p>\n<p>Bob starts the ticket after stopping Alice, then passes the car to get to Alice. Looking in he sees that behind Alice lies a box stamped &quot;Top Secret - US President's Eyes Only&quot; all over. Bob arrests Alice for the probable cause of possibly possessing those documents illegally. The documents were in plain sight, so no search was needed btw.</p>\n", "score": 6 } ]

[ "criminal-law", "police", "oklahoma" ]

[ { "answer_id": 93085, "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>As a starting point, courts are likely to view the market value of the contract (e.g. £100) as the floor for expectation damages, but it is open to Bob to prove higher expectation damages by demonstrating the cost of obtaining a sufficiently similar alternative, while reasonably attempting to mitigate damages.</p>\n<p>See <em>Chaplin v. Hicks</em> [1911] 2 K.B. 786, quoted with approval in 2002 BCCA 2017:</p>\n<blockquote>\n<p>In the case of a breach of a contract for the delivery of goods the damages are usually supplied by the fact of there being a market in which <strong>similar goods</strong> can be immediately bought, and the difference between the contract price and the price given for the substituted goods in the open market is the measure of damages; that rule has been always recognized.</p>\n</blockquote>\n<p>Expectation damages in such a circumstance is a question of fact, left to the trier of fact (judge or jury) and is assessed based on what they view a reasonable person to have done. If obtaining a device with slightly different properties allowed Bob to get a substitute for £250 that might be considered reasonable mitigation when considered alongside the alternative of buying a completely new identical item for £450.</p>\n<p>Bob doesn't actually have to take the mitigating steps in buying an alternative. This can all be argued in the hypothetical (i.e. what <em>would</em> put Bob in the position expected by performance of the contract). But damages will be limited to the costs Bob would have incurred, while reasonably mitigating the costs, in placing himself in the same position had the contract been performed.</p>\n", "score": 0 } ]

[ "england-and-wales", "damages", "civil" ]

[ { "answer_id": 93025, "body": "<h2>Its special personal information</h2>\n<p><em>The <a href=\"https://gdpr-info.eu/art-9-gdpr/\" rel=\"noreferrer\">GDPR</a> uses “special” not “sensitive”.</em></p>\n<blockquote>\n<p>Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, <strong>data concerning health</strong> or data concerning a natural person’s sex life or sexual orientation shall be prohibited.</p>\n</blockquote>\n", "score": 5 } ]

[ "gdpr" ]

[ { "answer_id": 93079, "body": "<h2>Markets change over time</h2>\n<p>Most anti-trust/monopoly laws are framed in terms of market dominance.</p>\n<p>In 1948, the only market for video was the cinema. That was an inherently local market; outside the big cities, customers literally had one and only one realistic option.</p>\n<p>In 2023, the market for video is on multiple platforms, geographically unrestricted, largely independent of time, and probably includes non-video media. The market is bigger so what it takes to dominate the market is also bigger.</p>\n", "score": 1 } ]

[ "business", "us-supreme-court", "antitrust-law", "entertainment-law" ]

[ { "answer_id": 93075, "body": "<p>You can query the <a href=\"https://de.wikipedia.org/wiki/Zentrales_Staatsanwaltschaftliches_Verfahrensregister#Auskunft\" rel=\"nofollow noreferrer\">Zentrales Staatsanwaltliches Verfahrensregister</a> regarding your own cases once they reach that level. I'm not sure how this works out if you are no longer in Germany, since you would have to prove that you are yourself. As I understand <a href=\"https://www.bfdi.bund.de/DE/Buerger/Inhalte/Polizei-Strafjustiz/National/Dateien-Justizbehoerden.html\" rel=\"nofollow noreferrer\">this site</a>, they expect you to send a postal letter rather than a mail.</p>\n<p>There is no guarantee of getting a complete answer. Investigations may be tagged as 'secret' to avoid warning the criminals. That would usually not be the case in a domestic violence investigation, but it is more common in organized crime cases and the like.</p>\n", "score": 2 }, { "answer_id": 93076, "body": "<p>You can ask for a “Selbstauskunft”. I have no idea how you would get one, and what it costs, but the police would know. That would contain <em>everything</em> the police has on file about you (only you yourself would be able to get that information, everyone else would get something redacted).</p>\n<p>If your wife’s complaint was serious enough to be written down it would be there. If she went to a police station, made a complaint, but let it slip to the officer that the complaint is false and only made to get you into trouble, then it might not ever have been recorded. That means legally the complaint doesn’t exist.</p>\n", "score": 0 } ]

[ "criminal-law", "germany", "human-rights" ]

[ { "answer_id": 93065, "body": "<h2>It’s mostly crap</h2>\n<p><a href=\"https://www.lexology.com/library/detail.aspx?g=0fb17a61-84c4-4b47-b2c9-f8794eca695a\" rel=\"nofollow noreferrer\">Trademarks</a> in <a href=\"/questions/tagged/new-zealand\" class=\"post-tag\" title=\"show questions tagged &#39;new-zealand&#39;\" aria-label=\"show questions tagged &#39;new-zealand&#39;\" rel=\"tag\" aria-labelledby=\"tag-new-zealand-tooltip-container\">new-zealand</a> do what they do everywhere else: prevent other people from using your trademark to identify their goods or services.</p>\n<blockquote>\n<p>Applies the trade mark to the product after its state, condition, get-up or packaging has been altered in any manner</p>\n</blockquote>\n<p>It’s still their product so using their trademark to identify it is legal. Even if the change is substantial - consider the Intel Inside trademark for chips inside computers.</p>\n<blockquote>\n<p>Alters, removes (including part removal) or obliterates (including part obliteration) the trade mark on the product</p>\n</blockquote>\n<p>Nope - your fridge, do what you like with it.</p>\n<blockquote>\n<p>Applies any other trade mark to the product</p>\n</blockquote>\n<p>This one depends. If you do it in such a way that it could confuse a reasonable person that the fridge is the product of the other trademark, that’s a violation. But if you stick AC/DC stickers to your fridge, it isn’t.</p>\n<blockquote>\n<p>Adds to the product any written material that is likely to damage the reputation of the trade mark.</p>\n</blockquote>\n<p>Like writing “sux” or “produces crap fridges” after their brand name? Nope, that’s just freedom of speech - or criminal damage if you don’t own the fridge.</p>\n<p>Now, any or all of these obligations could be made terms of the contract when you buy the product but breaching them would be a contract law matter, not a trademark law matter. In any event, terms on a sticker inside a box are not part of the contract unless it can be proved that you were made aware of and agreed to them.</p>\n<p>Even if you agreed, it would only apply to successors, assignees, or future owners if <em>they</em> agreed. As written, you have no obligation to ask them to agree when the fridge moves on.</p>\n", "score": 2 } ]

[ "trademark", "new-zealand" ]

[ { "answer_id": 93066, "body": "<h2>You subpoena eBay</h2>\n<p>You file your claim against username. You then subpoena eBay to provide all relevant information about username (name, address etc.). You then update your filing.</p>\n<p>Of course, you have to complete any dispute resolution clauses that may exist first.</p>\n", "score": 3 } ]

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

[ { "answer_id": 93064, "body": "<blockquote>\n<p>How can he compel the seller to cancel the new auction and sell him the item as they contracted to do?</p>\n</blockquote>\n<h3>Expectation damages are the typical remedy for breach of contract</h3>\n<p>The general measure of damages for breach of contract is <em>expectation damages</em>: &quot;the plaintiff will be entitled to the value of the promised performance&quot; (<em>Bank of America Canada v. Mutual Trust Co.</em>, <a href=\"https://canlii.ca/t/51s8#par26\" rel=\"nofollow noreferrer\">2002 SCC 43 at paragraph 26</a>); &quot;the purpose of expectation damages is to put the plaintiff in the same position it would have been <em>if the contract had been performed</em> (<em>Grandeur Homes Inc. v. Zeng</em>, <a href=\"https://canlii.ca/t/jgdx0#par19\" rel=\"nofollow noreferrer\">2021 ONSC 4005 at paragraph 19</a>).</p>\n<p>This is a general principle of common-law contract law rooted in English jurisprudence. See <em>Robinson v. Harman</em> (1848) 1 Ex. 850, p. 855:</p>\n<blockquote>\n<p>The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.</p>\n</blockquote>\n<p>This was recently confirmed by the U.K. Supreme Court in <em>Morris-Garner v. One Step (Support) Ltd.</em>, [2018] UKSC 20:</p>\n<blockquote>\n<p>Damage for breach of contract are ... a substitute for performance. That is why they are generally regarded as an adequate remedy. The courts <strong>will not prevent self-interested breaches of contract where the interests of the innocent party can be adequately protected by an award of damages.</strong></p>\n</blockquote>\n<h3>Specific performance is not usual</h3>\n<p>Specific performance (cancelling the new auction and forcing the first sale) is an <em>exceptional</em> remedy for breach of contract. Specific performance is an <a href=\"https://law.stackexchange.com/questions/85675/what-are-equity-and-equitable-remedies\">equitable remedy</a>. As an equitable remedy, it is always discretionary; the wronged party does not have a right to specific performance.</p>\n<p>Specific performance may be ordered when:</p>\n<ul>\n<li>expectation damages are inadequate as a remedy</li>\n<li>where the contract was for a sale of a particular piece of land (but even this has been limited in some jurisdictions to circumstances where the property is particularly unique)</li>\n<li>difficulty in quantifying damages</li>\n</ul>\n<p>Specific performance is typically <em>not</em> ordered when a substitute is available by which expectation damages would be demonstrated.</p>\n<p>See generally <em>Chitty on Contracts</em>, §30-015–30-025.</p>\n", "score": 3 } ]

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

[ { "answer_id": 92963, "body": "<p>Several countries have <a href=\"https://en.wikipedia.org/wiki/Legality_of_Holocaust_denial\" rel=\"noreferrer\">laws against Holocaust denial</a>. Such laws typically punish people who seriously minimise the scale of Nazi crimes, or entirely deny that generally accepted <a href=\"https://en.wikipedia.org/wiki/The_Holocaust\" rel=\"noreferrer\">Nazi atrocities</a> took place. The Wikipedia page lists several examples.</p>\n<p>In Austria, National Socialism Prohibition Law (1947, amendments of 1992) section 3h criminalizes &quot;whoever denies, grossly plays down, approves or tries to excuse the National Socialist genocide or other National Socialist crimes against humanity in a print publication, in broadcast or other media.&quot;</p>\n<p>Belgium also has a 1995 law against those who &quot;grossly minimise, attempts to justify, or approves the genocide committed by the German National Socialist Regime during the Second World War&quot;, punishable by &quot;a prison sentence of eight days to one year, and by a fine of twenty six francs to five thousand francs&quot;.</p>\n<p>In Czechia it is forbidden not only to deny Nazi genocide and crimes against humanity, but also similar crimes by Communist regimes (presumably primarily aimed at the Communist rulers in Czechoslovakia, the Soviet Union, and elsewhere in Eastern Europe). The Law Against Support and Dissemination of Movements Oppressing Human Rights and Freedoms (2001) § 405 says &quot;Anyone who publicly denies, disputes, approves or attempts to justify a Nazi, Communist or other genocide or Nazi, Communist or other crimes against humanity or war crimes or crimes against peace will be punished by imprisonment for six months to three years&quot;.</p>\n", "score": 21 }, { "answer_id": 92982, "body": "<p>To clarify the answer regarding the U.S.:</p>\n<p>There is no Federal level statute for criminal defamation in the U.S. However, there are statutory laws in the U.S. that criminalize defamation in 23 states, a case law in Iowa, and a constitutional grant for criminal defamation in South Dakota (25 states with a law in some form). That said, most states restrict criminal defimation very narrowly.</p>\n<p>In addition, it's a very rare crime to see prosecuted, let alone successfully. Between 1992 and 2004, only 41 charges were made, of which only 6 resulted in a conviction. Between 1965 and 2004 (39 years), there were only 16 successful convictions. Almost all sentences for convictions seem to indicate that the crime is a misdemeanor, with jail time averaging 173 days for those that serve jail time at all (misdemeanors in most states are 12 months for a single offence at the maximum) with fines, probation, and community service among the sentences for the charge.</p>\n", "score": 9 }, { "answer_id": 92980, "body": "<p><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>In the UK, the <a href=\"https://www.legislation.gov.uk/ukpga/2003/21/section/127\" rel=\"noreferrer\">Communications Act 2003</a> makes it illegal to lie over the internet in order to annoy someone.</p>\n<blockquote>\n<p>(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—</p>\n<p>(a) sends by means of a public electronic communications network, a message that he knows to be false,</p>\n</blockquote>\n<p>But in this case the intent to annoy is a necessary element along with the known falsehood. It's not generally illegal to lie simply to mislead people.</p>\n", "score": 8 }, { "answer_id": 92967, "body": "<p>Many <a href=\"https://www.aclu.org/issues/free-speech/map-states-criminal-laws-against-defamation\" rel=\"noreferrer\">jurisdictions in the United States</a> make it a crime to defame someone.</p>\n", "score": 7 }, { "answer_id": 92957, "body": "<p><a href=\"/questions/tagged/new-zealand\" class=\"post-tag\" title=\"show questions tagged &#39;new-zealand&#39;\" aria-label=\"show questions tagged &#39;new-zealand&#39;\" rel=\"tag\" aria-labelledby=\"tag-new-zealand-tooltip-container\">new-zealand</a> <a href=\"/questions/tagged/contempt-of-court\" class=\"post-tag\" title=\"show questions tagged &#39;contempt-of-court&#39;\" aria-label=\"show questions tagged &#39;contempt-of-court&#39;\" rel=\"tag\" aria-labelledby=\"tag-contempt-of-court-tooltip-container\">contempt-of-court</a></p>\n<p>A few years ago New Zealand lawmakers overhauled the law of <a href=\"https://en.wikipedia.org/wiki/Contempt_of_court\" rel=\"noreferrer\">contempt of court</a>. On the one hand, they abolished a whole lot of common law contempt offences (<a href=\"https://www.legislation.govt.nz/act/public/2019/0044/latest/LMS24757.html\" rel=\"noreferrer\">s 3(3)(a)</a>):</p>\n<blockquote>\n<p>(i) contempt in the face of the court; and</p>\n<p>(ii) publishing information that interferes with a fair trial; and</p>\n<p>(iii) jurors researching information relevant to the trial; and</p>\n<p>(iv) disclosing juror deliberations; and</p>\n<p>(v) disobeying court orders; and</p>\n<p>(vi) scandalising the court</p>\n</blockquote>\n<p>On the other hand, they introduced a new criminal offence of publishing false statements about judges (<a href=\"https://www.legislation.govt.nz/act/public/2019/0044/latest/LMS238628.html\" rel=\"noreferrer\">s 22</a>):</p>\n<blockquote>\n<p>(1) A person commits an offence if—</p>\n<p>(a) the person publishes a false statement about a Judge or court; and</p>\n<p>(b) the person knew or ought reasonably to have known that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary or a court; and</p>\n<p>(c) there is a real risk that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary or a court.</p>\n</blockquote>\n", "score": 6 }, { "answer_id": 92960, "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>Until 2021, Canada's <em>Criminal Code</em> contained s. 181, which made it an offence to spread false news.</p>\n<blockquote>\n<p>Every one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.</p>\n</blockquote>\n<p>It was ruled unconstitutional in 1992 (<a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/904/index.do\" rel=\"nofollow noreferrer\"><em>R. v. Zundel</em>, [1992] 2 SCR 731</a>), but that did not remove it from the statute books. It was removed in 2021 in a clean-up bill along with many other &quot;zombie&quot; laws. See this <a href=\"https://www.justice.gc.ca/eng/csj-sjc/pl/cuol-mgnl/qa-qr.html\" rel=\"nofollow noreferrer\">explainer</a> about the Bill.</p>\n", "score": 5 }, { "answer_id": 93059, "body": "<p>In Finland, the crime of defamation is covered by the Criminal law. <a href=\"https://www.finlex.fi/fi/laki/ajantasa/1889/18890039001#L24\" rel=\"nofollow noreferrer\">Rikoslaki, chapter 24, §9 and §10</a> (Translation mine)</p>\n<blockquote>\n<h2>§9 Defamation</h2>\n<p>Whoever</p>\n<ol>\n<li>Presents or insinuates false information of another, in a manner likely to cause damage or suffering to the injured party, or disdain towards them, or</li>\n<li>In a manner other than part 1 defames another</li>\n</ol>\n<p>Is to be sentenced to a fine for defamation.</p>\n<p>[...]</p>\n<h2>§10 Aggravated Defamation</h2>\n<p>If defamation as per part 1 of §9 causes great suffering or injury, and the crime is also otherwise aggravated, the criminal must be sentenced to a fine or no more than two years of imprisonment for aggravated defamation.</p>\n</blockquote>\n<p>In fact, §8 criminalizes publishing <em>true</em> statements regarding a person's private life. I have read news stories that mention that the police has an ongoing investigation for defamation or violation of privacy.</p>\n", "score": 3 } ]

[ "criminal-law", "publishing" ]

[ { "answer_id": 92855, "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>But what is that legal reason? Why would an organization not be able\nto state their position with respect to the issue, such as &quot;We believe\nwe acted correctly, but this will be decided in court&quot;?</p>\n<p>Is there a law saying that commenting a court case is illegal? Who\ndoes this apply to? Or is this just some guideline or established\nadvice to avoid problems (which ones)?</p>\n</blockquote>\n<p><strong>Legal Ethics Considerations</strong></p>\n<p>There are circumstances when commenting publicly on litigation violates the ethical rules for lawyers related to trial publicity <em>See</em> Rule of Professional Conduct 3.6 (the numbering system for professional conduct rules for lawyers is uniform nationally in the U.S. although the substance of the rules can differ in detail from state to state - <a href=\"https://www.cobar.org/For-Members/Opinions-Rules-Statutes/Rules-of-Professional-Conduct/Rule-36-Trial-Publicity\" rel=\"nofollow noreferrer\">Colorado's rule</a> is fairly typical). Mostly this rule calls for avoiding statements that could prejudice a jury unless the other side has already done so and those statements need to be rebutted. This rule states (in its Colorado version):</p>\n<blockquote>\n<p>(a) A lawyer who is participating or has participated in the\ninvestigation or litigation of a matter shall not make an\nextrajudicial statement that the lawyer knows or reasonably should\nknow will be disseminated by means of public communication and will\nhave a substantial likelihood of materially prejudicing an\nadjudicative proceeding in the matter.</p>\n<p>(b) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may state:</p>\n<p>(1) the claim, offense or defense involved and, except when prohibited\nby law, the identity of the persons involved;</p>\n<p>(2) information contained in a public record;</p>\n<p>(3) that an investigation of a matter is in progress;</p>\n<p>(4) the scheduling or result of any step in litigation;</p>\n<p>(5) a request for assistance in obtaining evidence and information\nnecessary thereto;</p>\n<p>(6) a warning of danger concerning the behavior of a person involved,\nwhen there is reason to believe that there exists the likelihood of\nsubstantial harm to an individual or to the public interest; and</p>\n<p>(7) in a criminal case, in addition to subparagraphs (1) through (6):\n(i) the identity, residence, occupation and family status of the\naccused; (ii) if the accused has not been apprehended, information\nnecessary to aid in apprehension of that person;(iii) the fact, time\nand place of arrest; and (iv) the identity of investigating and\narresting officers or agencies and the length of the investigation.</p>\n<p>(c) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may make a\nstatement that a reasonable lawyer would believe is required to\nprotect a client from the substantial undue prejudicial effect of\nrecent publicity not initiated by the lawyer or the lawyer's client. A\nstatement made pursuant to this paragraph shall be limited to such\ninformation as is necessary to mitigate the recent adverse publicity.</p>\n<p>(d) No lawyer associated in a firm or government agency with a lawyer\nsubject to paragraph (a) shall make a statement prohibited by\nparagraph (a).</p>\n</blockquote>\n<p>Statements such as &quot;We believe we acted correctly, but this will be decided in court&quot; are allowed and are not terribly uncommon. But, making a comment about something that can be easily inferred from the publicly available documents filed in court provides little or no positive advantage for a litigant.</p>\n<p>Also, one doesn't have to say much to create at least a colorable Rule of Professional Conduct 3.6 issue that a mediator can raise in settlement talks, or that a judge can be forced to analyze. Even if the claim of unethical trial publicity ultimately doesn't hold water, it still muddies the waters and distracts lawyers and litigants from dealing with the substance of the dispute.</p>\n<p><strong>The Risk That A Statement Will Be Used Against You</strong></p>\n<p>Usually, the main concern is similar to the concern about talking to police: Anything you say can and will be used against you at trial.</p>\n<p>For example, this week former President Trump's <a href=\"https://www.cnn.com/2023/05/31/politics/trump-tape-classified-document-iran-milley/index.html\" rel=\"nofollow noreferrer\">public statement about his knowledge of classified documents</a>, which are the subject of an ongoing federal criminal investigation of him, seriously harmed his position legally. (His statement was made quite a while ago in a semi-private forum, but at a time when the possibility of a criminal investigation still should have been on his radar screen.)</p>\n<p>In the civil rape-defamation case against him (as noted, for example, in <a href=\"https://law.stackexchange.com/a/92362/9517\">this Law.SE answer</a>), Trump's decision to continue to speak publicly about matters that were the subject of active litigation against him in an earlier case resulted in an extended statute of limitations and an opportunity to refile the case without having to worry about Presidential immunity from liability for statements he made while in office.</p>\n<p>It isn't just former President Trump that does things like this, but his conduct provides good textbook examples of what lawyers worry about when their clients talk about cases that are being litigated.</p>\n<p>Social media statements about pending cases by litigants <a href=\"https://www.forbes.com/sites/andrewarnold/2018/12/30/heres-how-social-media-can-be-used-against-you-in-court/?sh=38a9dd946344\" rel=\"nofollow noreferrer\">routinely provide powerful evidence against them</a> in trials.</p>\n<p>Some clients (particularly politicians and many senior executives of big and medium sized businesses, but also more ordinary people with big egos) are &quot;forces of nature&quot; who can't resist running their mouths, usually to their detriment, when given the least leave to do so. It is easier to teach them to say &quot;no comment&quot; across the board about pending litigation, than to transmit the depth of understanding necessary to comment without saying something potentially harmful. Lawyers spend many hours and sometimes days preparing their clients for depositions for a reason.</p>\n<p><strong>Avoiding Annoyance To Opposing Counsel, Parties, And Judges</strong></p>\n<p>Making a comment about pending litigation has the potential to aggravate opposing counsel and can emotionally influence non-lawyer opposing parties with whom a negotiated settlement will be reached 90%+ of the time (only about 1-2% of civil cases go to trial, but some are resolved by default judgments or on motion practice as opposed to by settlement).</p>\n<p>It can also irritate a judge who frequently prefers to be out of the public spotlight when necessary, even when the statements made aren't prohibited, and judges in the U.S. have lots of discretionary authority.</p>\n", "score": 45 }, { "answer_id": 92853, "body": "<p><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></p>\n<p>Yes, the legal reason is called <a href=\"https://en.wikipedia.org/wiki/Sub_judice\" rel=\"noreferrer\">sub judice</a>.</p>\n<p>The US seems to be less bothered about it due to the First Amendment, but in the rest of the common law world (UK/CA/AU/NZ etc.) publicly commenting about specifics of an ongoing litigation may be <a href=\"https://en.wikipedia.org/wiki/Contempt_of_court\" rel=\"noreferrer\">contempt of court</a>.</p>\n<p>The general idea is that the jury may be influenced by what the media says, and that will interfere with a fair hearing/trial. The jury is supposed to make decisions only on what they hear/see in the courtroom.</p>\n<p>Where the case is decided by judges only (i.e. <a href=\"https://en.wikipedia.org/wiki/Bench_trial\" rel=\"noreferrer\">bench</a>/judge-alone trials), in theory it should not be a problem to herald the hell of it in the media because judges are paid for their ability to withstand side influences and make decisions only on what is adduced before them. But people/organizations prefer to err on the side of caution and so see it wise to refuse to comment anyway.</p>\n", "score": 14 }, { "answer_id": 92854, "body": "<h2>It can be a bad idea 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></h2>\n<p>While it is not illegal to speak about the own ongoing litigation, talking about it can be very ill-advised:</p>\n<ul>\n<li>News articles are usually not admissible as evidence in court (unless to prove a statement <em>was made</em>)</li>\n<li>There are no jurors that could be swayed, and Schöffen discuss the whole case with the professional judge(s) when they join them on the bench.</li>\n<li>By claiming a position to the press, which the court deems wrong, an injured party by those statements can sue for various forms of defamation (Beleidigung <a href=\"https://www.gesetze-im-internet.de/stgb/__185.html\" rel=\"nofollow noreferrer\">§185 StGB</a>, Üble Nachrede <a href=\"https://www.gesetze-im-internet.de/stgb/__186.html\" rel=\"nofollow noreferrer\">§186 StGB</a>, Verleumdung <a href=\"https://www.gesetze-im-internet.de/stgb/__187.html\" rel=\"nofollow noreferrer\">§187 StGB</a>, Verleumdung gegen Personen des öffentlichen Lebens <a href=\"https://www.gesetze-im-internet.de/stgb/__188.html\" rel=\"nofollow noreferrer\">§188 StGB</a>, Verunglimpfichung Verstorbener <a href=\"https://www.gesetze-im-internet.de/stgb/__189.html\" rel=\"nofollow noreferrer\">§189 StGB</a>) and is nigh guaranteed to win due to the law on Truth by Judgment under <a href=\"https://www.gesetze-im-internet.de/stgb/__190.html\" rel=\"nofollow noreferrer\">§190 StGB</a>.\n<ul>\n<li>Example: Alice claims to the press that Bob murdered Charleene. The court finds Bob not guilty. Alice will now be found guilty under <a href=\"https://www.gesetze-im-internet.de/stgb/__187.html\" rel=\"nofollow noreferrer\">§187</a> &amp; <a href=\"https://www.gesetze-im-internet.de/stgb/__190.html\" rel=\"nofollow noreferrer\">§190 StGB</a> - A court's judgment automatically becomes <em>the truth</em>, and if revised or appealed the truth changes accordingly.</li>\n<li>Germans are <em>very</em> litigious in this field: the various forms of defamation fill as4% of all German lawsuits filed by private citizens.</li>\n</ul>\n</li>\n</ul>\n<h2>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>, Judges are prohibited from talking about ongoing cases on their desk</h2>\n<p>As discussed <a href=\"https://law.stackexchange.com/questions/36403/why-was-judge-jacksons-ruling-in-doj-vs-microsoft-overturned-in-the-anti-trust-h/55981#55981\">here</a> pertaining the successful appeal in United States v. Microsoft Corporation, 253 F.3d 34 (D.C. Cir. 2001) we have a specific point when, a judge talking about a case that is not yet decided and on their desk can lead to a successful appeal of the judgment. The point here is, that judges need to follow the <a href=\"https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges\" rel=\"nofollow noreferrer\">code of judicial conduct</a>, which demands that a judge may not talk about an ongoing case <strong>in any way or fashion</strong>:</p>\n<blockquote>\n<p>(6) <strong>A judge should not make public comment on the merits of a matter pending or impending in any court.</strong> A judge should require similar restraint by court personnel subject to the judge’s direction and control. The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education.</p>\n</blockquote>\n<h2>Similarly, lawyers 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> shouldn't</h2>\n<p>The lawers are similarly bound to their state bar's code of conduct, which often mirror the <a href=\"https://en.wikipedia.org/wiki/American_Bar_Association_Model_Rules_of_Professional_Conduct\" rel=\"nofollow noreferrer\">Model Rules of Professional Conduct</a>. More on that in <a href=\"https://law.stackexchange.com/a/92855/10334\">Ohwilleke's excellent answer</a></p>\n", "score": 7 }, { "answer_id": 92873, "body": "<h2>Can't help, might hurt</h2>\n<p>You're just giving ammo to the opposition.</p>\n<p>First, they can cite what you said directly, right in court. If you have anyone public-facing with &quot;foot in mouth disease&quot;, that can set you back badly. It can also hurt your credibility if the jury perceives those statements as unbelievable or insensitive. Nobody likes a liar. Best way to avoid that problem is for those statements <em>to not exist</em>.</p>\n<p>Second, in a social media age, it can backfire. If you say &quot;There has never been any methyl amine in the building&quot; <em>inevitably, that will get spread around social media</em>, and it WILL reach the ears of some random guy who did, in fact, special-order methyl amine from you 18 years ago and has the receipts to prove it. <strong>And now the opposition has something they didn't have before</strong>.</p>\n<p>It also makes it harder to stop (quash) an opponent from exploring an area of interest, if you yourself raised that area of interest in the media.</p>\n<p>You're not going to win any hearts and minds with denials. There's no extreme level of urgency or firmness that makes a denial more believable; if anything, the opposite. So you're better off not bothering. If you're the kind of company that has fans, let the fans fight the good fight in the media for you.</p>\n", "score": 5 }, { "answer_id": 92891, "body": "<p>Even if you are right, court proceedings are still expensive, strenuous, and time-consuming. So, it is common in court cases involving organizations or corporations that they end without a judgement, for example through a settlement agreement between the parties.</p>\n<p>Such a settlement agreement often stipulates that neither party was at fault, but it is somewhat hard to reach such an agreement if you have already made public statements claiming the opposite.</p>\n<p>As an example why corporations would want to settle, consider the Oracle v. Google case where there <em>wasn't</em> a settlement. It took 12 years, and in the end, Google won, but it won in a manner which didn't actually answer the most important question. So, this was all a giant waste of money and time for all involved parties, including Google, Oracle, and the Supreme Court.</p>\n<p>Oracle wanted to prevent Google from distributing Android, but they lost. Google wanted the courts to decide, once and for all, whether interface descriptions are copyrightable, but the courts side-stepped that question. So, in the end, nobody got what they wanted. And the Supreme Court wasted time trying to wiggle themselves out of the question.</p>\n", "score": 4 } ]

[ "rules-of-court", "litigation", "any-jurisdiction" ]

[ { "answer_id": 93034, "body": "<p>Bob appears to have committed &quot;attempted larceny&quot; by extortion, contrary to <a href=\"https://www.nysenate.gov/legislation/laws/PEN/155.05\" rel=\"nofollow noreferrer\">§ 155.05(2)(e)(v)</a>:</p>\n<blockquote>\n<p>(e) <strong>By extortion.</strong></p>\n<p>A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will:</p>\n<p>...</p>\n<p>(v) Expose a secret or publicize an asserted fact, whether true or\nfalse, tending to subject some person to hatred, contempt or ridicule;</p>\n</blockquote>\n<p>See <a href=\"https://www.nysenate.gov/legislation/laws/PEN/110.00\" rel=\"nofollow noreferrer\">§ 110.00</a>:</p>\n<blockquote>\n<p><strong>Attempt to commit a crime.</strong></p>\n<p>A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.</p>\n</blockquote>\n<p>And see <a href=\"https://www.nysenate.gov/legislation/laws/PEN/110.10\" rel=\"nofollow noreferrer\">§ 110.10</a> which covers the &quot;impossibility&quot; that Bob actually had compromising images from Alice's non-existent webcam:</p>\n<blockquote>\n<p><strong>Attempt to commit a crime; no defense.</strong></p>\n<p>If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be.</p>\n</blockquote>\n<p>(NB Bob's sentence, if found guilty, would depend the value of his attempted extortion)</p>\n", "score": 4 }, { "answer_id": 93051, "body": "<blockquote>\n<p>It is clearly not NYPC § 135.60, as no physical force is there,</p>\n</blockquote>\n<p>Not so.</p>\n<p>The facts presented clearly state an offense of attempting to commit the crime of coercion in the third degree which is colloquially called &quot;extortion.&quot;</p>\n<p>An attempt crime is committed when &quot;A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.&quot; <a href=\"https://ypdcrime.com/penal.law/article110.php#p110.00\" rel=\"nofollow noreferrer\">NYPC § 110.00</a>.</p>\n<p>§ 110.10 Attempt to commit a crime; no defense.</p>\n<blockquote>\n<p>If the conduct in which a person engages otherwise constitutes an\nattempt to commit a crime pursuant to section 110.00, it is no defense\nto a prosecution for such attempt that the crime charged to have been\nattempted was, under the attendant circumstances, factually or legally\nimpossible of commission, if such crime could have been committed had\nthe attendant circumstances been as such person believed them to be.</p>\n</blockquote>\n<p>An attempt to commit a misdemeanor is a Class B misdemeanor. <em>See</em> NYPC § 110.05.</p>\n<p>The underlying crime attempted which Bob attempted to commit is as follows:</p>\n<blockquote>\n<p><strong>§ 135.60 Coercion in the third degree.</strong></p>\n<p>A person is guilty of coercion in the second degree when he or she\ncompels or induces a person to engage in conduct which the latter has\na legal right to abstain from engaging in, . . . by means of\ninstilling in him or her a fear that, if the demand is not complied\nwith, the actor or another will: . . .</p>\n<p>5 Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or\nridicule; or . . .</p>\n<p>9 Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially\nwith respect to his or her health, safety, business, calling,\ncareer, financial condition, reputation or personal relationships.</p>\n<p>Coercion in the second degree is a class A misdemeanor.</p>\n</blockquote>\n<p>Coercion in the second degree does not require proof of the use of physical force. That is only one of nine possible forms of coercion which can give rise to this offense.</p>\n<p>Bob attempted to get Alice to transfer Bitcoin by instilling fear in hear that a secret would be revealed or that Bob would take action that would damage Alice's reputation and/or personal relationships. He thought he could successfully instill fear in Alice and get the Bitcoin even though he was bluffing about his ability to carry out his threat. If Alice had paid the Bitcoin he would have been guilty of coercion in the third degree. But, since he failed to cause Alice to act, he is only guilty of attempted coercion in the third degree.</p>\n<p>Bob is also be guilty of attempted larceny by extortion as explained <a href=\"https://law.stackexchange.com/a/93034/9517\">by Rick</a>.</p>\n<blockquote>\n<p>Is that actually the right section or might the whole case be in the\nwrong venue (e.g. belonging to federal court as wire fraud)?</p>\n</blockquote>\n<p>In most cases involving fraud both state courts and federal courts have jurisdiction over some crimes that apply to the criminal conduct involved.</p>\n<p>The FBI has, for decades, had a policy of not investigating property crimes involving a loss of less than $75,000, not as a matter of law, but as a means of rationing scarce investigatory resources. So, the likelihood that federal prosecutors would pursue this case would depend upon the amount demanded and any other factors that make it particularly attractive (e.g. because it is part of a pattern of offenses by the same person affecting victims in many different states).</p>\n", "score": 1 } ]

[ "internet", "new-york-state", "extortion" ]

[ { "answer_id": 92972, "body": "<p>The court should not compel the witness to disclose the information because there is a <a href=\"https://en.wikipedia.org/wiki/State_secrets_privilege\" rel=\"noreferrer\">state secrets privilege</a> which bars disclosure of governmental secrets in litigation.</p>\n<p>An interlocutory appeal of some sort would generally be permitted in cases where the privilege is not honored, and typically, the federal government would become an intervenor in the litigation with respect to that issue.</p>\n<p>Not infrequently, the state secrets privilege will prevent a matter from being litigated at all, rather than merely preventing the admission of evidence, or requiring that the matter be resolved in a sealed secret bench trial.</p>\n<p>For example, spies cannot sue the government for not being paid for spying as a result of the state secrets privilege. Similarly, someone who suffers a personal injury arising from a covert operation can not sue the government for that injury.</p>\n", "score": 16 }, { "answer_id": 92997, "body": "<p>The <a href=\"https://uscfc.uscourts.gov/sites/default/files/FINAL-Public-Guide-to-Classified-Information.pdf\" rel=\"nofollow noreferrer\">US Court Public Guide to Classified Information</a> suggests that if you are a plaintiff you should file a notice when you file the (Federal) case to get the right people assigned. </p>\n<p><a href=\"https://www.law.cornell.edu/uscode/text/18a/compiledact-96-456/section-6\" rel=\"nofollow noreferrer\">18a U.S. Code § 6</a> appears to suggest that motions can be filed (by anyone related?) which will activate the necessary machinery where the government will stop any public disclosure of classified information.</p>\n<p>Some organizations have more specific guidance to follow pre-appearance, even for seemingly innocuous court appearances.</p>\n<p>TL;DR: Don't blurt out classified information in court (or anywhere else) without giving the powers that be a chance to squash that concept like a bug (or they will squash you like a bug instead).</p>\n", "score": 9 }, { "answer_id": 93053, "body": "<p>In theory...</p>\n<p>Because [18 U.S. Code § 798][1] requires a &quot;willful&quot; disclosure of classified information, the answer lies in the definition of the legal term 'willful'. This is not the same as being willing or compelled.</p>\n<blockquote>\n<p>The term &quot;willfully&quot; means no more than that the forbidden act was done deliberately and with knowledge, and does not require proof of evil intent. McClanahan v. United States, 230 F.2d 919, 924 (5th Cir. 1955), cert. denied, 352 U.S. 824 (1956); McBride v. United States, 225 F.2d 249, 255 (5th Cir. 1955), cert. denied, 350 U.S. 934 (1956). An act is done &quot;willfully&quot; if done voluntarily and intentionally and with the specific intent to do something the law forbids. There is no requirement that the government show evil intent on the part of a defendant in order to prove that the act was done &quot;willfully.&quot; See generally United States v. Gregg, 612 F.2d 43, 50-51 (2d Cir. 1979); American Surety Company v. Sullivan, 7 F.2d 605, 606 (2d Cir. 1925)(Hand, J.); United States v. Peltz, 433 F.2d 48, 54-55 (2d Cir. 1970),cert. denied, 401 U.S. 955 (1971) (involving 15 U.S.C. § 32(a). See also 1 E. Devitt, C. Blackmar, M. Wolff &amp; K. O'Malley, Federal Jury Practice and Instructions, § 17.05 (1992).</p>\n</blockquote>\n<p>Taken from - <a href=\"https://www.justice.gov/archives/jm/criminal-resource-manual-910-knowingly-and-willfully#:%7E:text=An%20act%20is%20done%20%22willfully,See%20generally%20United%20States%20v\" rel=\"nofollow noreferrer\">https://www.justice.gov/archives/jm/criminal-resource-manual-910-knowingly-and-willfully#:~:text=An%20act%20is%20done%20%22willfully,See%20generally%20United%20States%20v</a>.</p>\n<p>So it stands to reason that if the witness knew the information was 'classified' and they answered the question, I think they would be in some trouble.</p>\n<p>I believe the witness can simply say something to the effect of &quot;I am unable to legally answer that under 18 U.S. Code § 798&quot;. I would love to see a court attempt to compel the witness to answer after that statement, as it could qualify as &quot;solicitation to commit a crime&quot; by the court. The legal debate there would be interesting.</p>\n<p>But don't quote me.\n[1]: <a href=\"https://www.law.cornell.edu/uscode/text/18/798\" rel=\"nofollow noreferrer\">https://www.law.cornell.edu/uscode/text/18/798</a></p>\n", "score": 1 }, { "answer_id": 92977, "body": "<p>The Espionage Act requires a &quot;willful&quot; disclosure of classified information, so a witness testifying under threat of contempt wouldn't be subject to legal liability for that testimony.</p>\n<p>For that reason, the Fifth Amendment wouldn't really be a valid objection. And even if the disclosure would be criminal, answering those questions wouldn't be testimony <em>about</em> a criminal act, but the criminal act itself, so again, the Fifth Amendment would not apply. (But perhaps cross-examination would, if questions are framed as &quot;You told the court that <em>x</em>, right?&quot;</p>\n<p>But there are other options instead. Ideally, the witness would notify the U.S. Attorney's Office that the other party is seeking this testimony, and the USAO would then assert one of two objections:</p>\n<ol>\n<li>If the testimony is sought in civil litigation, the government would likely object that the testimony would be governed by the state-secrets privilege. Doing so would require testimony from the head of the relevant military or intelligence agency that disclosing the information would be likely to injure national-security interests. If the evidence is excluded, the case would continue forward on whatever other evidence remains.</li>\n<li>If the testimony is sought in a criminal case, the witness would object that it is governed by the <a href=\"https://www.law.cornell.edu/uscode/text/18a/compiledact-96-456/section-6\" rel=\"nofollow noreferrer\">Classified Information Procedures Act</a>, in which case, the court should hold a hearing at which it would determine whether the information relevant and otherwise admissible. If the evidence is excluded, the court may be required to dismiss the charges against the defendant, or it may simply order a jury to make adverse inferences against the government regarding whatever information is at issue.</li>\n</ol>\n", "score": 0 } ]

[ "united-states", "witnesses", "perjury" ]

[ { "answer_id": 86584, "body": "<blockquote>\n<p>Why don't people who are untruthful during jury selection get held in\ncontempt of court?</p>\n</blockquote>\n<p>The premise of the title question is incorrect. Jurors are regularly held in contempt of court for being untruthful during jury selection.</p>\n<p>I suspect that the number of prospective jurors held in contempt by courts on any given day that courts are open in the United States would be in the hundreds nationwide every day (about 1-3 per day on a typical day in the entire State of Colorado), and in the tens of thousands nationwide every year, although usually the punishments would be at the mild end of what is allowed by law.</p>\n<p>But, this isn't applied blindly in a zero tolerance fashion because the court's primary goal is to get cases tried not to punish dishonest prospective jurors and it doesn't have unlimited resources.</p>\n<p>Also, the court handling jury selection doesn't want to scare off jurors and have them try to formulate truthful excuses that the jurors wouldn't insist upon because they are afraid of being punished for slight missteps in the jury selection process.</p>\n<p>Also, in the example mentioned, the question about an ability to speak English is really about an ability to be fluent enough to understand what is going on and be a fruitful deliberator in hearing a court case and deciding with other jurors who won. This is different from the ability to have the rudimentary understanding of some English language basics which is implicated in the conduct described. The judge would not be abusing his or her discretion to assume that the prospective juror was truthfully indicating that he was not sufficiently fluent to serve appropriately as a juror despite having some limited ability to speak and understand English.</p>\n", "score": 29 } ]

[ "united-states", "jury", "contempt-of-court" ]

[ { "answer_id": 93039, "body": "<p>An exact match to a trademark is not necessary for trademark infringement to occur, as demonstrated in Toys &quot;R&quot; Us v. Akkaoui, 40 U.S.P.Q.2d (BNA) 1836 (N.D. Cal. 1996). Toys R Us successfully sued the adult website Adults R Us despite the lack of an exact match to any trademark, as the use of the name &quot;Adults R Us&quot; diluted the trademark of Toys R Us.</p>\n<p>However, your specific hypothetical would probably need an actual lawyer to properly guess whether it would likely be considered infringing, as it's hard to know for certain.</p>\n", "score": 2 } ]

[ "united-states", "trademark", "civil-law", "public-domain" ]

[ { "answer_id": 93048, "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>Under US law, unions and employees enjoy a <a href=\"https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights\" rel=\"noreferrer\">set of protections</a> codified under the National Labor Relations Act. Some of those rights <a href=\"https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/nlra-and-the-right-to-strike\" rel=\"noreferrer\">specifically pertain to strikes</a>, and in particular, employees engaged in &quot;lawful&quot; strikes cannot be fired merely for striking (but they can be replaced).</p>\n<p>Stack Exchange, Inc. takes the position that moderators are not employees and are not subject to the NLRA. Their reluctance to use the word &quot;strike&quot; likely stems from this position. If the moderation strike were a &quot;strike&quot; within the meaning of the NLRA, that would imply a large and complex set of restrictions on how Stack Exchange may respond to the strike. It would <em>also</em> suggest that moderators, as employees, have a <a href=\"https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/employee-rights\" rel=\"noreferrer\">right to discuss their &quot;workplace conditions&quot; with each other or the public</a> - which might be construed to include some or all of the moderation policies that Stack Exchange has distributed in private (but I'm somewhat doubtful of that).</p>\n<p>Of course, it would also raise serious problems under the <a href=\"https://www.dol.gov/agencies/whd/flsa\" rel=\"noreferrer\">Fair Labor Standards Act</a> (moderators are unpaid and the FLSA sets a minimum wage), but that is a different law, and it is theoretically possible that a court would rule that moderators are employees for NLRA purposes but not for FLSA purposes. I have never heard of such a ruling actually happening, and it is far more likely that moderators are <a href=\"https://corporate.findlaw.com/litigation-disputes/unpaid-staff-are-not-employees-under-the-nlra.html\" rel=\"noreferrer\">not employees for either purpose</a>. Still, it might be unwise to refer to the strike as a &quot;strike,&quot; just in case the issue gets litigated.</p>\n", "score": 47 }, { "answer_id": 93047, "body": "<p>The term has potentially as many specific legal meanings as there are statutes that use the word. One example is title 29 of the United States Code, chapter 7 (Labor-Management Relations), which defines &quot;strike&quot; thus:</p>\n<blockquote>\n<p>The term “strike” includes any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted slowdown or other concerted interruption of operations by employees.</p>\n</blockquote>\n<p>Which is not terribly helpful. Also unhelpful is the definition of &quot;employee&quot;:</p>\n<blockquote>\n<p>The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.</p>\n</blockquote>\n<p>In fact, it is not usually necessary to observe statutory definitions of terms when discussing something that is outside the scope of the statute in question. Lawyers will nonetheless counsel their clients to avoid doing so because they do not want the use of the word to be taken as an implied admission of some circumstance that might weaken the client's case.</p>\n<p>I don't suppose the striking moderators are actually employees of Stack Exchange, Inc., so I cannot imagine how using the word &quot;strike&quot; could cause trouble. But that doesn't matter a whole lot. If they don't want to use the word strike, they can refrain from using it. If they're trying to spin the situation by hiding behind purported legal advice, the only way you're going to prove that is with direct evidence. Even if the legal reasoning is bogus, it could just be that they have a bad lawyer, or just an overcautious one. Maybe they are worried that SE using &quot;strike&quot; would trigger a requirement to pay moderators minimum wage. Or about something else. Or maybe it's just spin.</p>\n", "score": 12 } ]

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

[ { "answer_id": 27426, "body": "<p>Most of the major archiving platforms are nonprofit ventures with purposes that could fall within the fair-use exception to the Copyright Act. Archive.org, for instance, is for educational and archival purposes. Perma.cc, meanwhile, is for preserving legal history.</p>\n<p>I don't know about Perma.cc, but Archive.org will take down pages just because you asked, so that also cuts in its favor.</p>\n", "score": 12 }, { "answer_id": 43597, "body": "<h2>Terms and conditions aren't necessarily binding</h2>\n\n<p>It's worth noting that while activities such as the Wayback Machine have had <em>many</em> legal issues, they're mostly centered on copyright, not regarding terms and conditions.</p>\n\n<p>A key part of this is that terms and conditions are not law, and they're not binding contract to which you've somehow agreed. Quoting <a href=\"https://law.stackexchange.com/a/1884/302\">another relevant answer</a>, \"In the case of a web site, the owner of the web site is granting you a license, subject to certain terms, to access the web site and use it.\" You're free to <em>not</em> accept that license offer in which case you don't have their explicit permission to access that site. However, you don't necessarily <em>need</em> their permission to do so - the permission is useful because it protects you from the following two main legal claims:</p>\n\n<ul>\n<li>Copyright - it may be that this implied license in combination with T&amp;C is the only thing that gives you the copyright owners' permission to copy that data. However, that's not a factor in fair use scenarios where copyright owner's permission isn't required, which is the main legal claim of internet archives (which sometimes <a href=\"https://en.wikipedia.org/wiki/Wayback_Machine#Archived_content_legal_issues\" rel=\"noreferrer\">gets contested</a>). It doesn't matter whether the copyright holder clearly tells you \"I don't allow this!!!\" in person, in email, in a legal cease&amp;desist letter or on the T&amp;C section of their website, if the copyright law permits you to make and/or distribute these copies without their permission.</li>\n<li>\"Hacking\" laws like CFAA (Computer Fraud and Abuse Act) - it may be that violations of T&amp;C get prosecuted by various laws designed to target hacking. However, that generally requires something worse than what internet archives are doing. Internet archives generally respect both 'robots.txt' standard to limit access to what websites don't want to be scraped, they generally accept takedown notices, and their mission makes it less likely for courts to consider that the activity is in bad faith. If someone like myself would \"just\" scrape the same sites for some commercial gain, and continue to do so after receiving explicit cease and desist notice, then a lawsuit would have a larger chance of succeeding - but even then likely not, see a <a href=\"https://www.documentcloud.org/documents/3932131-2017-0814-Hiq-Order.html\" rel=\"noreferrer\">HIQ Labs vs Linkedin court ruling</a> and <a href=\"https://arstechnica.com/tech-policy/2017/08/court-rejects-linkedin-claim-that-unauthorized-scraping-is-hacking/\" rel=\"noreferrer\">an article about it</a> as an example where a company explicitly and intentionally scraped Linkedin data against their T&amp;C for years but the court didn't consider that as a violation of CFAA.</li>\n</ul>\n", "score": 8 } ]

[ "copyright", "intellectual-property", "internet", "terms-of-service" ]

[ { "answer_id": 93046, "body": "<blockquote>\n<p>To what cases is the judge referring to here?</p>\n</blockquote>\n<p>None: neither the quoted article (<a href=\"https://web.archive.org/web/20230602053810/https://www.fr.de/politik/news-lina-e-prozess-urteil-verkuendung-demo-leipzig-dresden-kassel-linksextremismus-antifa-zr-92312816.html\" rel=\"nofollow noreferrer\">2023-06-02 05:57: Prozess gegen Lina E.: Stadt Leipzig verbietet Solidaritäts-Demonstration</a>) given in the <a href=\"https://en.wikipedia.org/wiki/Trial_of_Lina_E.#Arrest_and_trial\" rel=\"nofollow noreferrer\">english version of Wikipedia</a> nor the german Wikipedia version (<a href=\"https://de.wikipedia.org/wiki/Dresdner_Linksextremismusprozess\" rel=\"nofollow noreferrer\">Dresdner Linksextremismusprozess – Wikipedia</a> uses the quote given in the english version.</p>\n<p>In the article itself, the name 'Hans Schlueter-Staats' is used only once:</p>\n<blockquote>\n<p>The arrest warrant against them will be suspended against conditions, said <strong>Hans Schlueter-Staats</strong>, presiding judge of the State Protection Chamber at the Dresden Higher Regional Court, on Wednesday evening at the end of the verdict. She only has to serve the remainder of the sentence if the verdict becomes final.</p>\n</blockquote>\n<p>Assume that, for whatever reason, someone added a fabricated quote, in the Wikipedia page, that is <strong>not</strong> contained in the given source hoping that nobody would notice (either because the reader can't read German or simply wouldn't look).</p>\n<p>It would be <strong>very strange</strong> for a judge whos primary duty, in a civil law system, is to <em>read the law as written</em>, to give a personal opinion about previous rulings (which was the reason I looked: to read the exact German text).</p>\n<p>Whoever fabricated that quote was obviously unaware of this <strong>or</strong> didn't care hoping that others would simply assume it to be correct due the given source of a newspaper that has a reputation as being a reliable source.</p>\n", "score": 4 } ]

[ "germany", "reference-request" ]

[ { "answer_id": 93041, "body": "<p>You ask permission, preferably with legal counsel to handle the details. It really is that simple.</p>\n<p>Unsurprisingly, most companies don't want to give their code away- especially to a competitor. If you even get a response, they will expect something in return i.e. money.</p>\n<p>Realistically though, it's unlikely they will respond, much less deal with you.</p>\n", "score": 3 }, { "answer_id": 93042, "body": "<h2>Code is copyrighted</h2>\n<p>The code is copyrighted. You need a license from the copyright owner to manipulate it, if you alter it to the extent that you create a derivative work and do not qualify for Fair Use or a similar exception (see below).</p>\n<p>Creating a game with a different map clearly is a derivative work.</p>\n<p>You can only get that license from the company that initially made or currently distributes the game which code you want to use.</p>\n<p>If they don't respond or don't want you to use their code, you can't use their code at all.</p>\n<h2>But... fair use?!</h2>\n<p>There are <strong>some</strong> exceptions to needing a license, like fair use. However, those are generally not available for making a competing game.</p>\n", "score": 3 } ]

[ "licensing", "patents" ]

[ { "answer_id": 93043, "body": "<p>Under the DMCA safe harbor provisions, the platform is protected from liability if they follow specific procedures, but may be liable for contributory infringement if they do not. The crux of the procedural dance is their receipt of official notices and counter notices, and their responses. The trigger is a sworn statement by the copyright holder: in the scenario that you describe, there is no such take-down notice. A take-down notice is directed at a specific infringement (delivered to Youtube), and the required remedy is that the content host must remove the copied material. This was done in the particular case, so there is no further issue.</p>\n<p>The copyright owner would have to separately serve notice on MeTube or FreeTube for distributing the same work. SE or similar platform is not even close to the liability ballpark until it gets served with notice. YouTube, on the other hand, could be liable if they restored the content after taking it down (this is covered via the counter-claim and put-back provisions). The copyright owner's whack-a-mole department has to dilligently find all of those infringers.</p>\n<p>&quot;Infringing&quot; boils down to copying, not to &quot;referring to&quot;, and in the cases you are asking about, there is no copying of the content – there is a reference (link) to allegedly infringing material. The case <a href=\"https://www.law.uh.edu/faculty/cjoyce/copyright/release10/intres.html\" rel=\"nofollow noreferrer\">Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc.</a>, 75 F. Supp. 2d 1290 gives indications of what actions <em>other than</em> actual copying might be deemed &quot;contributory infringement&quot;. The court points out that browsing anything requires copying – &quot;in making a copy, even a temporary one, the person who browsed infringes the copyright&quot; –\nalthough if the person browsing &quot;was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages&quot;. So yes, there is always potential for end-users to be sued for infringement, and usually an escape hatch for innocent infringers.</p>\n<p>The other question raised in this case, about the platform's liabilities, is somewhat mooted by the apparent age of the would-be infringement which sees to predate DMCA. But the case does include an element of infringement-by-link, and the court found in that instance that &quot;defendants have actively encouraged the infringement of plaintiff's copyright&quot;, citing various facts where the host overtly directed users to infringing sites, for example &quot;Please mirror these files . . . . It will be a LOT quicker for you to download the compressed version . . . Needless to say, we need a LOT of mirror sites, as absolutely soon as possible&quot;. This is markedly different from what happens on SE. Inline linking is generally considered safe (the burden of stopping copyright infringement is on the actual host). There is no encouragement of infringement, only the potential.</p>\n", "score": 2 } ]

[ "copyright", "liability" ]

[ { "answer_id": 93035, "body": "<p>For purposes of this answer I am assuming that Bob is an employee. If Bob was a contractor then Employer could simply stop assigning him shifts. I am also assuming he has worked there more than 3 months as under BC law employees with less than 3 months service can be dismissed without cause without notice/severance. I'm also assuming that no illegal discrimination took place here**.</p>\n<p>The short answer is this all looks legal and Bob would have difficulty fighting it.</p>\n<p>A private business can refuse admittance to anyone for any reason. Even if Bob personally considers it unjust, they are not obliged to serve him. As it is private property, being on the premises was indeed trespassing.</p>\n<p>This would likely be sufficient for Termination With Cause. Realistically, any action severe enough to get banned from a store would be more than enough to constitute gross misconduct. I work in retail and have only ever seen it happen for theft or aggressive behaviour. &quot;Breaking Company Rules&quot; is also considered Just Cause and in this case the company has a rule of &quot;don't piss off the clients so much they complain, much less eject you&quot;.</p>\n<p>Bob does not have a legal right to know what happened in a private conversation. It's possible the store didn't even give details beyond &quot;Bob was barred from the premises.&quot;</p>\n<p>*Hypothetical male characters are called Bob- that's just how it is.</p>\n<p>**Ammend &quot;except illegal discrimation&quot; whenever I say &quot;for any reason&quot;</p>\n", "score": 1 } ]

[ "canada", "is-x-legal", "labor-law", "british-columbia" ]

[ { "answer_id": 88886, "body": "<p>Arguably, no one owns the copyright in the general case. This is a similar case to a previous <a href=\"https://law.stackexchange.com/a/78082/3209\">question I've answered</a>. In short, the US has a statutory provision which bars infringing derivatives from gaining copyright.</p>\n<p>In this particular case, it's helpful to take a look at what the Court of Appeals for the Second Circuit <a href=\"https://law.justia.com/cases/federal/appellate-courts/ca2/19-2420/19-2420-2021-03-26.html\" rel=\"nofollow noreferrer\">had to say</a>. While evaluating transformativeness, they did not declare Warhol's works to be derivatives, but left that possibility open and stated it was closer to being a derivative than transformative fair use:</p>\n<blockquote>\n<p>Nonetheless, although we do not conclude that the Prince Series works are necessarily <em>derivative</em> works as a matter of law, they are much closer to presenting the same work in a different form, that form being a high-contrast screenprint, than they are to being works that make a transformative use of the original.</p>\n</blockquote>\n<p>That Warhol's prints might have no copyright attached to them does not mean that anyone can use them though – they are still very much based on Goldsmith's photo and the underlying copyright to the original still belongs to Goldsmith. This could well mean that Goldsmith would be able to use the Warhol prints as if she owned its copyrights.</p>\n<hr />\n<p><strong>Update:</strong> The Supreme Court <a href=\"https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf\" rel=\"nofollow noreferrer\">has now affirmed</a>, albeit on a narrow appeal from the Second Circuit Court of Appeal which dropped the issue that this question is about.</p>\n<p>Only the first fair use factor of transformativeness was challenged by the Andy Warhol Foundation (AWF). Additionally, and more important for this question is that only a single use was ruled on: the licensing of one of the prints by AWF for a 2016 magazine article reprint following Prince's death. This is because <a href=\"https://copyrightblog.kluweriplaw.com/2023/06/05/how-to-distinguish-transformative-fair-uses-from-infringing-derivative-works/\" rel=\"nofollow noreferrer\">Goldsmith dropped the wider infringement claims</a>.</p>\n<p>Here's where I realize I missed a key distinguishing fact in the case: There was indeed a narrow license for use of the photo for &quot;artist reference&quot; in relation to an article to be published in a 1984 <em>Vanity Fair</em> issue.</p>\n<p>In effect, due to the license, the (probable) derivative could be considered non-infringing¹. Nevertheless, the court ruled that the use in the 2016 issue was not fair (given there was no license for use beyond the 1984 article, AWF had to rely on a fair use defense).</p>\n<p>In other words, the Warhol prints as a whole are not necessarily infringing derivatives², rather, the specific use in the 2016 article was affirmed to be infringing.</p>\n<p>In particular, I'd like to highlight the following from court:</p>\n<blockquote>\n<p>The fair use provision, and the first factor in particular,\nrequires an analysis of the specific “use” of a copyrighted\nwork that is alleged to be “an infringement.” §107. The\nsame copying may be fair when used for one purpose but\nnot another.</p>\n</blockquote>\n<hr />\n<ol>\n<li>The full license text is not in any of the court decisions, so it's impossible for us to know for sure, but the portions that are quoted lead me to believe the license is vaguely worded. In particular, its in the realm of possibility that <em>only</em> the single derivative used on the 1984 article was licensed, but I would argue its reasonable to expect an artist to try multiple derivatives given a license for &quot;artist reference.&quot; This could potentially have been of some consequence as the print used in the 2016 article is not the same as the one used in the 1984 article.</li>\n<li>But since this case was initiated in <a href=\"https://scholar.google.com/scholar_case?case=4495688805136636572\" rel=\"nofollow noreferrer\">district court</a> by the AWF seeking declaratory judgment of non-infringement, my understanding of the matter is that once the case is passed back to the district court, it will enter in that declaration given Goldsmith dropped the wider infringement claims. Take this with a grain of salt, I'm not very well-versed in trial procedure.</li>\n</ol>\n", "score": 6 } ]

[ "copyright" ]

[ { "answer_id": 93014, "body": "<p>Unlike the Last Will and Testament of a decedent, a revocable living trust that becomes irrevocable by virtue of the death of the settlor generally does not become a matter of public record at the death of the settlor.</p>\n<p>In both New Jersey, and under the Uniform Trust Code, a beneficiary of a trust needs to be informed that they are a beneficiary of a formerly revocable trust, when the settlor of the trust dies. At common law, the majority rule was that a beneficiary only needed to be informed of the existence of the trust when there was a need to know for some reason (e.g. for tax purposes).</p>\n<p>New Jersey law provides that:</p>\n<blockquote>\n<p>A trustee, upon request of a beneficiary, shall promptly furnish to\nthe beneficiary a copy of the trust instrument.</p>\n</blockquote>\n<p>N.J.S. § 3B:31-67(b).</p>\n<p>This has the virtue of being easy to administer. The New Jersey rule calls for slightly more disclosure that the potentially more difficult to administer majority common law rule, which is found in the unmodified provision of the Uniform Trust Code adopted unmodified in many states, which states that:</p>\n<blockquote>\n<p>A trustee . . . Upon request of a qualified beneficiary, shall\npromptly furnish to the qualified beneficiary a copy of the portions\nof the trust instrument that describe or affect the beneficiary's\ninterest[.]</p>\n</blockquote>\n<p>Uniform Trust Code Section § 813(2)(a).</p>\n<p>The Uniform Trust Code is a model statute, sponsored by American Bar Association affiliated entities, that states can adopt if they wish as state law with whatever modifications they deem fit.</p>\n<p>Of course, there are other reasons that disclosure of the trust could be required, at least, in the event that interactions with these parties rose to the level of litigation or were necessary to make a transaction go forward.</p>\n<p>For example, it might have to be disclosed to a financial institution in which the trust wishes to establish an account, to a title company in connection with a real estate transfer from the trust, to taxing authorities, to someone with standing to do so suing the drafter of the trust for legal malpractice, to a trust protector or legal representative of a beneficiary, to creditors of the trust or of the decedent-settlor of the trust, to a former beneficiary contesting the validity of a change to the trust, or to someone who would have inherited from the decedent if the trust had not been formed contesting the validity of the trust's formation.</p>\n", "score": 1 } ]

[ "united-states", "wills", "new-jersey", "trusts-and-estates" ]

[ { "answer_id": 93024, "body": "<blockquote>\n<p>Is Crypto the same as any foreign currency?</p>\n</blockquote>\n<p>No.</p>\n<p>Crypto is generally treated as a commodity and capital asset, like gold, and not like a currency, under U.S. tax law. Other jurisdictions vary in how they treat cryptocurrency legally and for tax purposes.</p>\n<p>Bitcoin (unlike other cryptocurrencies) is <a href=\"https://www.cnn.com/2023/06/06/business/nightcap-crypto-sec-binance-coinbase/index.html\" rel=\"nofollow noreferrer\">also regulated on a non-tax basis as a commodity</a> by the Commodity Futures Trading Commission. Other cryptocurrencies are regulated in the U.S. as securities by the Securities and Exchange Commission.</p>\n<blockquote>\n<p>Why not regulate it as a currency and not a security?</p>\n</blockquote>\n<p>Cyptocurrencies are not very much like currencies which is why they are not regulated in that way.</p>\n<p>The basis for treating it more like a security and less like a foreign currency for securities fraud/disclosure purposes is that it is a better fit to securities law which is designed for more varied legal arrangements than foreign currency laws.</p>\n<p>Foreign currencies are backed by the full faith and credit of sovereign countries (which are non-profit entities). Also, foreign currencies are transparently based upon laws that are almost always a matter of public record and relatively straightforward. And, of course, banks and money changing firms trading in foreign currencies are subject to significant tax and financial regulation of their own, although not as securities.</p>\n<p>In contrast, like other securities, cryptocurrencies are private creatures of contract created by entities with shareholders which do not have uniform legal properties. New &quot;coins&quot; can be created in different ways in different crypto currencies, and the relationship between the cryptocurrency to the non-crypto financial markets varies. Securities-like disclosures are necessary for members of the public dealing with it to understand the risks, benefits, and mechanics of the cryptocurrency in question.</p>\n<p>The U.S. Securities And Exchange position and its basis is suggested by the <a href=\"https://abcnews.go.com/Business/wireStory/sec-brings-charges-cryptocurrency-trading-platform-coinbase-99866462\" rel=\"nofollow noreferrer\">ABC News story linked in the question</a>, which states:</p>\n<blockquote>\n<p>Coinbase has been targeted by U.S. regulators in a new lawsuit Tuesday\nthat alleges the cryptocurrency platform is operating as an\nunregistered securities platform and brokerage service.</p>\n<p>The lawsuit from the Securities and Exchange Commission comes only a\nday after it filed charges against Binance, the world's largest crypto\nexchange, and its founder Changpeng Zhao are accused of misusing\ninvestor funds, operating as an unregistered exchange and violating a\nslew of U.S. securities laws.</p>\n<p>Coinbase shares plunged nearly 15% early Tuesday.</p>\n<p>In its complaint, the SEC said Coinbase made billions acting as the\nmiddle man for cryptocurrency buyers and sellers but did not give\ninvestors lawful protections while acting as a broker.</p>\n<p>“Coinbase has for years defied the regulatory structures and evaded\nthe disclosure requirements that Congress and the SEC have constructed\nfor the protection of the national securities markets and investors,”\nthe SEC said in its complaint, which was filed in U.S. District Court\nfor the Southern District of New York. It seeks injunctive relief,\ndisgorgement of ill-gotten gains plus interest, penalties, and other\nequitable relief.</p>\n</blockquote>\n", "score": 4 } ]

[ "cryptocurrency", "security" ]