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Why is drunk driving causing accident punished so much worse than just drunk driving? | <p>When people drink and drive and then cause an accident especially where if someone dies they get years and years in prison but just the act of drunk driving is punished way more lenient. Shouldn't the 2, drunk driving and drunk driving then causing accident be similarly punished? I feel like a lot of times it's luck whether an accident happens.</p>
| [
{
"answer_id": 94666,
"body": "<h3>Moral luck</h3>\n<p>You have raised the issue of <em>moral luck</em>, a long recognized problem in criminal theory. The classic expositions of this issue are by <a href=\"https://en.m.wikipedia.org/wiki/Thomas_Nagel\" rel=\"noreferrer\">Thomas Nagel</a>, in his chapter, "<a href=\"https://rintintin.colorado.edu/%7Evancecd/phil1100/Nagel1.pdf\" rel=\"noreferrer\">Moral Luck</a>" (1979) and <a href=\"https://en.m.wikipedia.org/wiki/Bernard_Williams\" rel=\"noreferrer\">Bernard Williams</a>, "<a href=\"https://bibliotecamathom.files.wordpress.com/2012/10/williams_-_moral_luck.pdf\" rel=\"noreferrer\">Moral Luck</a>" (1976). Specifically, you are describing what they call <em>outcome</em> luck, or <em>consequential</em> luck.</p>\n<p>Driving while intoxicated vs. driving while intoxicated and causing death is not the only example where moral luck results in a distinction in punishment. Other examples are:</p>\n<ul>\n<li>dangerous driving vs. dangerous driving that causes death</li>\n<li>a successful offence vs. an attempted offence (generally resulting in a maximum sentence less than that of the successful offence)</li>\n</ul>\n<p>Nagel writes:</p>\n<blockquote>\n<p>If someone has had too\nmuch to drink and his car swerves on to the sidewalk, he can count himself morally lucky if there are no pedestrians in its path. If there were, he would\nbe to blame for their deaths, and would probably be prosecuted for\nmanslaughter. But if he hurts no one, although his recklessness is exactly the\nsame, he is guilty of a far less serious legal offence and will certainly reproach\nhimself and be reproached by others much less severely. To take another legal\nexample, the penalty for attempted murder is less than that for successful\nmurder – however similar the intentions and motives of the assailant may be\nin the two cases. His degree of culpability can depend, it would seem, on\nwhether the victim happened to be wearing a bullet-proof vest, or whether a\nbird flew into the path of the bullet – matters beyond his control.</p>\n<p>...</p>\n<p>... How is it possible to be more or less culpable depending\non whether a child gets into the path of one’s car, or a bird into the path of\none’s bullet? Perhaps it is true that what is done depends on more than the\nagent’s state of mind or intention. The problem then is, why is it not irrational to base moral assessment on what people do, in this broad sense? It\namounts to holding them responsible for the contributions of fate as well as\nfor their own – provided they have made some contribution to begin with. ... If the object of moral judgment is the person, then to hold him accountable for what he has done in the broader sense is akin to strict liability, which may have its legal uses but seems irrational as a moral position.</p>\n</blockquote>\n<h3>Two offered justifications for making distinctions based purely on outcome</h3>\n<p>Two considerations often raised as justification for differential treatment based on outcome are (<a href=\"https://en.m.wikipedia.org/wiki/David_Enoch_(philosopher)\" rel=\"noreferrer\">David Enoch</a> & <a href=\"https://en.m.wikipedia.org/wiki/Andrei_Marmor\" rel=\"noreferrer\">Andrei Marmor</a>, "<a href=\"https://www.jstor.org/stable/27652623\" rel=\"noreferrer\">The Case against Moral Luck</a>", 26 LAW & PHIL. 405 (2007), pp. 415–17)</p>\n<ul>\n<li>epistemological / evidential — the person who <em>actually</em> killed a person was more likely to have been driving more recklessly</li>\n<li>the theory that the actor should have to internalize the risk, fully, when they set out on a risky activity — if they happen to kill someone, the risk of this higher punishment was part of what they should have accounted for when deciding to embark on the risky activity</li>\n</ul>\n<p>A couple of quotes from Enoch and Marmor:</p>\n<blockquote>\n<p>All other things being equal, the occurrence of an accident is plausibly considered as at least some prima facie evidence for recklessness, or indeed for a higher\ndegree of recklessness.</p>\n</blockquote>\n<blockquote>\n<p>A conception of fairness that requires\nagents to internalize the costs of their risky activities does not\nnecessarily reflect a view of responsibility or blameworthiness.\nIt may simply reflect a judgment about the appropriate distribution of the costs of risky activities.</p>\n</blockquote>\n",
"score": 72
},
{
"answer_id": 94674,
"body": "<p>Drunk driving remains, per se, "victimless" - a breach of regulations - until someone actually becomes a victim. That puts less emphasis on the punitive role of the justice system and more on deterrence and rehabilitation.</p>\n<p>The standards for charging someone with DUI are much lower than with vehicular homicide. DUI is a strict liability offense, requiring no intent, no mens rea. In about half the states it's even <a href=\"https://stpetelawgroup.com/can-i-get-a-dui-if-im-sleeping-in-my-car-in-fl/\" rel=\"noreferrer\">possible</a> to get a DUI conviction for sleeping in the back seat of a car. In no state is it possible to kill anyone (other than yourself) solely by sleeping under the influence.</p>\n<p>The system of tiered offenses with different culpability requirements is about as strong a deterrent as the public can accept. It allows handing out the first tier of penalties in as many situations as possible, while allowing for heavier charges when there are consequences or aggravating factors.</p>\n<p>Not applying the penalty for the worst possible consequences for every act also avoids "in for a penny, in for a pound" perverse incentives, prompting one to exercise whatever amount of caution they still can.</p>\n",
"score": 26
},
{
"answer_id": 94677,
"body": "<p>Drivers are negligent all the time. Not only by drunk driving, but also by speeding, driving when really tired, etc.</p>\n<p>The question is, what level of negligence is enough to call it recklessness?</p>\n<p>The rough method that is applied here is: If you killed someone, and the killing is connected to your negligent behaviour, then it was probably reckless.</p>\n<p>It is not the best method, but it is also not completely unreasonable.</p>\n",
"score": 8
},
{
"answer_id": 94669,
"body": "<p>Have you seen or watched the movie Minority Report? People were arrested and imprisoned based upon what they would have done in the future.</p>\n<p>While you are probably unable to drive in a reasonably safe manner in that condition, getting into an accident moves that from probably to certainly. You didn’t just subject yourself and others to an unmeasurable (possible) increase of risk to their safety, you actually caused harm.</p>\n",
"score": 7
},
{
"answer_id": 94681,
"body": "<p><strong>The question "How drunk is drunk?" is legally more flexible than "How dead is dead"</strong></p>\n<p>Ultimately, the range of "Too drunk" could be heavily varied - depending on the region, the <a href=\"https://en.wikipedia.org/wiki/Blood_alcohol_content\" rel=\"noreferrer\">Blood Alcohol Content (Or BAC)</a> can vary by jurisdiction; some countries have a maximum BAC of 0.02%, and others a BAC of 0.08%. How these limits are determined involves some math math in theory, but in practice usually involves a breath sample via an approved screening device; an important point of the mathematical side, however, does indicate that, with time, the BAC counter goes lower.</p>\n<p>The timing aspect of the BAC test result means that, ultimately, you could be charging people with a low enough (But too high legally) BAC amount for simply not waiting longer. "Oh, you didn't wait another 40 minutes before getting onto the road after waiting 80 minutes, so we're going to give you extended jail time" does feel a bit harsh - even if the math might be more complicated than that (See also, how body weight can affect the approximate mathematics in the above linked Wikipedia article). It's also a significantly small margin at times, and you could be punishing people who were spiked beyond the limit unexpectedly.</p>\n<p>Whereas, whether or not someone is dead, is generally much easier to ascertain (Even if there are <a href=\"https://en.wikipedia.org/wiki/Legal_death\" rel=\"noreferrer\">legal grey areas regarding the definition of being dead</a> - if the body is found, medically they can check for brain and cardiovascular signs if brought to a hospital, where a determination can be made with more information.)- which makes the harder part determining if you drove into them, and then the hardest part proving that you were drunk at the time - where the above parts come into play.</p>\n",
"score": 6
},
{
"answer_id": 94710,
"body": "<p>Although some of the answers make a good comparison between retributive and preventative punishment, there is a more utilitarian purpose for this difference.</p>\n<p>Simply put, the law exists so people do not need to seek whatever they want through illegal means.</p>\n<p>If someone kills a man in a hypothetical world without law, the family of the man would seek revenge for his death. Then, if they kill the murderer, the murderer's family might seek revenge for his death. This would lead to a cycle of violence, which is what often happened in tribal societies.</p>\n<p>Thus, one of the main purposes of the law is to be the arbiter between people and sole source of violence so they do not feel the need to take violence into their own hands.</p>\n<p>The reason, thus, that a drunk driver who kills people is punished more is simply because the law needs to do that if it wishes to prevent many people from feeling their desire for revenge is not fulfilled and falling into lawlessness.</p>\n<p>As for drunk driving by itself, it is only punished as a preventative measure.</p>\n",
"score": 3
},
{
"answer_id": 94717,
"body": "<p>Consider these two scenarios:</p>\n<ul>\n<li>Alice has never driven whilst drunk before, but this one time she's forgotten that she came to the dinner party by car and drinks some wine. Realising her mistake, she drives home exceedingly careful and slow, which raises the suspicion of a policeman who tests her and finds the alcohol level too high.</li>\n<li>Bob routinely drives slightly drunk, but has been confident and lucky enough never to have been caught. This time though, his intoxication causes him to not notice a pedestrian who has tripped while crossing the road, and he runs her over.</li>\n</ul>\n<p>If both were punished the same way, there wouldn't really be an incentive (besides altruism) to act like Alice, which clearly is the less inappropriate thing to do. She didn't act exactly <em>right</em> either, but she certainly acted in a way that posed less danger to society.</p>\n",
"score": 2
},
{
"answer_id": 94735,
"body": "<p>We know alcohol impairs higher cognitive function, but the degree to which it does varies greatly from one person to the next (and depends heavily on other factors, such as what else you've eaten or drunk), and the ways in which it affects individuals also varies. Never mind that the same person could also be more or less drunk.</p>\n<p>So we have a legal limit where the average person would be sufficiently impaired, such that they shouldn't be driving.</p>\n<p>But this doesn't mean all those people are equally likely to drive too fast, run over traffic lights, swerve, not notice their surroundings, react too slowly, or do any of the other things a drunk person might do, that greatly increase the risk of someone dying.</p>\n<p>So charging all drunk drivers with homicide-level offenses doesn't make much sense given the amount of variation there.</p>\n<p>Also note that drunk driving is a preventative charge: drunk driving is not something that causes harm in and of itself, but we collectively agree that people shouldn't do it because of the risk it carries. Since it doesn't necessarily cause harm, it doesn't really make sense to punish it as severely as something which does cause harm. To prevent harm is one of the main reasons laws exist in the first place, so whether harm was or would've been caused is an important consideration.</p>\n<hr />\n<p>Drunk driving can be compared to some degree to driving while medicated. Medicine affects different people differently under different circumstances, so it wouldn't really make sense to say driving after taking a single aspirin is equivalent to driving after taking strong prescription pain pills, or that taking something which has no noticeable effect on you is bad because it knocks someone else out.</p>\n<p>The difference is that alcohol has a more consistent effect, it's a more common known source of accidents, and it's easier to test for.</p>\n",
"score": 0
},
{
"answer_id": 94739,
"body": "<h2>Harming someone, or being drunker, offers different facts that violate more laws.</h2>\n<p>It's simple: if you do more stuff, you can violate more laws at the same time. And some laws are just written in such a way, that violating them is punished harder. So:</p>\n<h3>Violating some laws gets you punished harder than others.</h3>\n<p>And with drunk driving, often laws are written like escalation steps.\nLet me use the law of <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a> as an example:</p>\n<ul>\n<li>If you are a new driver, you may not have any alcohol. 0.0 is your limit. See <a href=\"https://www.gesetze-im-internet.de/stvg/__24c.html\" rel=\"nofollow noreferrer\">§24c Straßenverkehrsgesetz</a> (Law on Road Traffic)</li>\n<li>Driving with <em>some</em> blood alcohol is legal, as long as you are below the limit and drive well enough. Without any signs of alcohol-related errors, you can have less than 0.5 permille.</li>\n<li>Driving under the influence of alcohol in a manner that is noticeable for the intoxication, you gain a hefty fine when caught. That is called Trunkenheit I'm Straßenverkehr (~Driving under the Influence of Alcohol) under <a href=\"https://www.gesetze-im-internet.de/stgb/__316.html\" rel=\"nofollow noreferrer\">§316 StGB</a> (Penal Code) and can trigger as early as 0.3 permille alcohol according to the highest German court.</li>\n<li>Getting caught while driving with more than 0.5 permille gives you a hefty fine and automatic loss of the driver's license for 1 to 3 months, depending on how often you do it. This is regulated in <a href=\"https://www.gesetze-im-internet.de/stvg/__24a.html\" rel=\"nofollow noreferrer\">§24a StVG</a>, and is called the "0.5 permille limit"</li>\n<li>Driving with 1.1 permille or more means you are <em>also</em> in for a felony: very hefty fines are leveled, you can go to jail for up to 5 years, your driver's license is on the line for at least 6 months up to 5 years or permanent revocation. This falls under <a href=\"https://www.gesetze-im-internet.de/stgb/__315c.html\" rel=\"nofollow noreferrer\">§315c StGB</a>, Endangering of Road Traffic. At this point, the BGH reasoned, you are absolutely incapable to drive a vehicle safely.</li>\n<li>Should you be caught with 1.6 permille or more, makes the test to determine if you ever can regain your driver's license mandatory. At this point, it is reasonable to suspect that the person in question is a chronic drunkard.</li>\n</ul>\n<p>All of those are <strong>just</strong> driving drunk, where no intent is needed. That's all separate from what comes when an accident happens. The moment your drunk driving harms anyone (or anything), it goes from just punishing your state of drunkenness to making your drunkenness a factor in a totally different crime, the one that revolves around doing the harm. Being intoxicated enough opens you, before anything else, to the reckless versions of harming or killing crimes.</p>\n<ul>\n<li>Killing someone by driving them over under alcoholic influence is at least Fahrlässige Tötung under <a href=\"https://www.gesetze-im-internet.de/stgb/__222.html\" rel=\"nofollow noreferrer\">§222 StGB</a> (Reckless Killing)</li>\n<li>Harming someone but not killing them while driving in such a manner is just Fahrlässige Körperverletung under <a href=\"https://www.gesetze-im-internet.de/stgb/__229.html\" rel=\"nofollow noreferrer\">§229 StGB</a> (reckless harming of someone)</li>\n</ul>\n",
"score": 0
}
] | 94,665 | CC BY-SA 4.0 | [
"criminal-law",
"driving",
"sentencing"
] | 23 | https://law.stackexchange.com/questions/94665/why-is-drunk-driving-causing-accident-punished-so-much-worse-than-just-drunk-dri |
What counts as consideration in contract law? | <p>What counts as consideration in contract law? Does consideration from party A have to be to the benefit of the party B?</p>
| [
{
"answer_id": 94672,
"body": "<p>See generally <em>Hamer v. Sidway</em> (1891), <a href=\"https://www.nycourts.gov/reporter/archives/hamer_sidway.htm\" rel=\"nofollow noreferrer\">124 NY 538</a>, citing indirectly <em>Currie v Misa</em> (1875) LR 10 Ex 893:</p>\n<blockquote>\n<p>'A valuable consideration in the sense of the law may consist either in some right, interest, profit or benefit accruing to the one party, <strong>or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other</strong>.' Courts 'will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to anyone. <strong>It is enough that something is promised, done, forborne or suffered by the party to whom the promise is made as consideration for the promise made to him</strong>.</p>\n</blockquote>\n",
"score": 1
},
{
"answer_id": 94697,
"body": "<p>Pretty much anything that is neither illegal nor a pre-existing obligation can be consideration. A necessary pre-condition for any trade or contract is a different valuation of whatever is being traded. Inherent in that is that judges and legislators would value it differently.</p>\n<p>Given that, who is to say that a contract with a surgeon to save the life of someones daughter, mother, pool boy, isn’t valuable to the non-surgeon party? An overgrown lawn on someone else’s property.</p>\n<p>Unconscionable contracts are a different matter, because they inherently involve either a reevaluation or someone else having an interest that wasn’t addressed.</p>\n",
"score": 1
},
{
"answer_id": 94713,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>Consideration is usually an element of a valid contract. But consideration is not required at all for a personal guarantee of a debt, for marital agreements entered into during a marriage, or for some (but not all) forms of contract modifications (usually singled out by statute).</p>\n<p>Any benefit to one party, or detriment assumed by the other party, can constitute consideration. Consideration is often money, but it can involve mutual promises, giving up claims in a lawsuit, services, goods, promises to refrain from action, or almost anything else that is not specifically prohibited.</p>\n<p>Consideration in U.S. common law, however, cannot be "meretricious" (i.e. for having sex) or otherwise illegal (e.g. illegal drugs or a contract to murder someone). Likewise "love and affection" or other donative intent directed at the other party to the contract is not consideration.</p>\n<p>The benefit or detriment could be to someone related to, or intended to be benefited by, a party to the contract rather than to the contracting party.</p>\n<p>The consideration does not have to be proportionate to the contract validated by the consideration. Instead, the prevailing theory of consideration in the United States is the "<a href=\"https://en.wikipedia.org/wiki/Peppercorn_(law)\" rel=\"nofollow noreferrer\">peppercorn theory</a>".</p>\n<blockquote>\n<p>In legal parlance, a peppercorn is a metaphor for a very small cash\npayment or other nominal consideration, used to satisfy the\nrequirements for the creation of a legal contract. It is featured in\n<em><a href=\"https://en.wikipedia.org/wiki/Chappell_%26_Co_Ltd_v_Nestle_Co_Ltd\" rel=\"nofollow noreferrer\">Chappell & Co Ltd v Nestle Co Ltd</a></em> ([1960] AC 87), which stated that "a peppercorn does not cease to be good consideration if it is\nestablished that the promisee does not like pepper and will throw away\nthe corn".</p>\n</blockquote>\n<p>The main kind of contract that is rendered unenforceable by the consideration doctrine in the U.S. is a promise to make a gift in the future.</p>\n<p>Another common application of the consideration requirement is to invalidate a contract modification (in a type of contract where consideration is required for a contract modification) which is entirely one sided.</p>\n<p>Under the doctrine of <a href=\"https://lawshelf.com/shortvideoscontentview/contract-law-promissory-estoppel-as-a-substitute-for-consideration\" rel=\"nofollow noreferrer\">promissory estoppel</a>, detrimental reliance on a promise can substitute for consideration.</p>\n<p>Inadequacy of consideration, when there is some consideration to support the contract, is governed by the doctrine of unconscionability as between the parties to the contract.</p>\n<p>If the parties to the contract do not exchange "substantially equivalent value" then a buyer in a contract is not a "bona fide purchaser for value" (which impacts the ability of a third-party to challenge the validity of the contract vis-a-vis their rights) and the contract could be a "fraudulent transfer" which can be undone by a third-party creditor if the person on the losing side of the deal is insolvent.</p>\n",
"score": 1
}
] | 94,671 | CC BY-SA 4.0 | [
"contract-law",
"legal-terms",
"consideration"
] | 0 | https://law.stackexchange.com/questions/94671/what-counts-as-consideration-in-contract-law |
Question Concerning Responding to Employer of Minor Daughter Paid Under Minimum Wage | <p>My high school daughter worked for about a year for an employer who owns a tutoring company in our town. Due to friction between my daughter and the employer, my daughter recently quit but she realized that she was being underpaid for much of this year (2023) because the minimum wage here in California is currently $15.50 for 2023 but she was still getting paid $14.00, the California minimum wage for 2022, when she recently quit (in August 2023). Now according to my daughter there is a provision in California law which allows employers to pay only 85% of minimum wage for new workers with no prior experience for their first 160 hours of work. For 2023, that "new worker" wage level would work out to $13.17 per hour, but my daughter said that she exceeded her first 160 hours of work for the employer back in March 2023. So, basically, my daughter was being paid under the proper CA 2023 minimum wage for over the past 4 months.</p>
<p>When my daughter contacted her former employer about this problem, the employer was apologetic and emailed back saying that a financial transaction to her to correct for the underpayment would be sent as soon as my daughter emailed back an enclosed payment settlement form. The settlement form basically says "I hereby agree that the net payment of $XXX represents the full and final settlement of my account with Company XXX", and there are signature lines at the bottom of the form for my daughter's signature as well as my signature as her parent.</p>
<p>I'm currently thinking "Why should I, the parent, need to sign anything here?". The employer underpaid my daughter and she acknowledges that she underpaid my daughter, so it seems that she is responsible for paying my daughter the money she already owes her for the work that my daughter already did, regardless of whether I sign any form or not. Any thoughts on all of this?</p>
| [
{
"answer_id": 94687,
"body": "<h2>Read the terms</h2>\n<p>It’s quite likely that, if you took this to court, the employer would be liable to pay your daughter interest on the underpayment and possibly be fined by the state for failing to follow the law.</p>\n<p>The terms probably are offering to pay the back pay with no interest and your daughter agreeing to confidentiality about the breach. Probably - I haven’t read them.</p>\n<p>In other words, they’re asking her to sign a contract saying she gets $XXX now, and can’t make any further claims against them. Such releases are commonplace when setting a dispute and there’s probably nothing underhanded going on. Probably - I haven’t read them.</p>\n<p>Because minors can void contracts if they are not in their interest, they want you, as her legal guardian, to also sign so that can’t happen. A relatively prudent precaution on their part.</p>\n<p>The alternative is to not sign the document and they presumably won’t pay. It will then be up to you whether to sue them which will cost you money, possibly more than you will get if you win.</p>\n<p>As to whether there is a dispute: they want your signature, you don’t want to sign - that’s a dispute. Any admissions they have made in their settlement offer are almost surely without prejudice, meaning they are inadmissible in court. If you want to sue, you would have to prove the underpayment without relying on their admissions. As stated above, maybe there is no underpayment.</p>\n<p>Only you and your daughter can decide if this is a good deal.</p>\n",
"score": 3
},
{
"answer_id": 94699,
"body": "<p>The form most likely includes a statement somewhere that you won’t take further legal action. Your underage daughters signature would not be legally binding as she is underage, and so you could get the money and sue.</p>\n<p>Your signature on the other hand makes it a legally binding contract on your part and would probably open you up to a breach of contract suit if your daughter was to sue in her own right (either before or after majority).</p>\n",
"score": 1
}
] | 94,683 | CC BY-SA 4.0 | [
"employment",
"california",
"teenager"
] | 1 | https://law.stackexchange.com/questions/94683/question-concerning-responding-to-employer-of-minor-daughter-paid-under-minimum |
Can Hawaii secede from the U.S. through legal means? | <p>Can Hawaii secede from the U.S. through legal means or is it forbidden by U.S. law? I am asking, because I doubt the U.S. would accept the result of a referendum that rules that the Hawaiians want to secede from the U.S. just like Russia or China wouldn't accept it.</p>
| [
{
"answer_id": 67111,
"body": "<p><strong>Currently, there is no legal means for a state to secede form the U.S.</strong></p>\n<p>A quick Google search yields <a href=\"https://www.washingtonpost.com/news/the-fix/wp/2016/06/27/so-you-want-to-secede-from-the-u-s-a-four-step-guide/\" rel=\"noreferrer\">So you want to secede from the U.S.: A four-step guide - The Washington Post</a>:</p>\n<blockquote>\n<p>"When the Confederate states seceded in 1861 and were then defeated in\nthe Civil War, the argument is that they demonstrated that you can't\nsecede from the Union. The 1869 Supreme Court case <a href=\"https://www.law.cornell.edu/supremecourt/text/74/700\" rel=\"noreferrer\">TEXAS v.\nWHITE ET AL (Legal Information Institute)</a> determined that the\nsecession was never actually a real thing in the eyes of the federal\ngovernment. The Confederate States of America wasn't an independent\ncountry any more than your house is its own country simply because you\nsay it is. 'The Constitution, in all its provisions,' the justices\nwrote, 'looks to an indestructible Union composed of indestructible\nStates.'"</p>\n</blockquote>\n<p>Also from that Post piece:</p>\n<blockquote>\n<p>In 2006, Justice Antonin Scalia was asked by screenwriter Dan\nTurkewitz if the idea of Maine seceding from the country made sense as\na possible plot point. Scalia, perhaps unexpectedly, replied.</p>\n<p>"I cannot imagine that such a question could ever reach the Supreme\nCourt," Scalia wrote. "To begin with, the answer is clear. If there\nwas any constitutional issue resolved by the Civil War, it is that\nthere is no right to secede. ... Secondly, I find it difficult to\nenvision who the parties to this lawsuit might be. Is the State suing\nthe United States for a declaratory judgment? But the United States\ncannot be sued without its consent, and it has not consented to this\nsort of suit."</p>\n</blockquote>\n<p>A state <em>could</em> secede if the US Constitution was amended to allow secession, but the chances of that happening are low.</p>\n<p>Also see <a href=\"https://en.wikipedia.org/wiki/Secession_in_the_United_States\" rel=\"noreferrer\">Secession in the United States - Wikipedia</a></p>\n",
"score": 9
},
{
"answer_id": 67120,
"body": "<p>The US Civil War is generally taken to have settled the question as to whether any state can, on its own, leave the Union. It cannot.\nIn <a href=\"https://www.law.cornell.edu/supremecourt/text/74/700\" rel=\"nofollow noreferrer\"><em>Texas Vs White et al</em> 74 U.S. 700, 19 L.Ed. 227,\n7 Wall. 700 1868</a> the US Supreme Court confirmed this when wrote (in pars 101 & 102 of the opinion):</p>\n<blockquote>\n<p>When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.</p>\n<p>Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.</p>\n</blockquote>\n<p>Notice, however, the statement that the adherence of a state to the US could not be changed: "except through revolution, or <strong>through consent of the States</strong>."</p>\n<p>This leaves open the possibility of a <strong>bi</strong>lateral departure of a state.</p>\n<p>Congress has, under the Constitution, the power to admit new states to the Union, and to join stats or parts of states into new states, or to divide states, with the consent of the states involved. Another answer to this question suggested that a treaty might lawfully cede potions of the territory of the United States, and this seems plausible, although there is no explicit provision for such an action, nor is there any clear precedent in US history.</p>\n<p>So if a State were to request, via an act of its legislature, perhaps supported by a vote of its people, that it leave the US, and if the US Congress passed a law consenting to this, and declaring that the state involves was no longer a part of the US, would that law be valid under the Constitution? It might well be held to be valid, given the other powers Congress has over the extent of the Union, but it might equally be held to be invalid and void. There is no case law on that point, for Congress has never yet consented to any such attempted departure of a state.</p>\n<p>Surely an amendment to the Constitution <strong>could</strong> be passed, clearly giving Congress such a power. That is nothing but speculation, as no such amendment has even been formally proposed.</p>\n<p>Thus the question must be considered undecided at this time.</p>\n",
"score": 4
},
{
"answer_id": 67112,
"body": "<p>No, not alone. There is no constitutional means to leave the union under the current US constitution (<a href=\"https://www.archives.gov/founding-docs/constitution-transcript\" rel=\"nofollow noreferrer\">Art. 4 §3</a> is a one-way path). An amendment could be made to allow secession.</p>\n",
"score": 2
}
] | 67,110 | CC BY-SA 4.0 | [
"united-states",
"constitutional-law",
"federalism"
] | 2 | https://law.stackexchange.com/questions/67110/can-hawaii-secede-from-the-u-s-through-legal-means |
Legality of privately bibby Stockholming to save land costs | <p>It seems that the principal impetus of moving migrants onto barges like the Bibby Stockholm is to save the costs of renting property in which to accommodate the migrants on dry land.</p>
<p>Rental costs are no doubt high as anyone will know.</p>
<p>But what is the legality of mooring semi permanent barges such as the Bubby Stockholm off the British coast, whether for the government or for private citizenry?</p>
<p>If anyone is allowed to construct and moor barges like that off the coast and then not have to own or rent property to inhabit, then what stops private citizens from residing on such structures?</p>
| [
{
"answer_id": 94712,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<blockquote>\n<p>then what stops private citizens from residing on such structures?</p>\n</blockquote>\n<p>Nothing. Anyone who can be a tenant of a house or apartment can be a tenant of a boat.</p>\n<blockquote>\n<p>The [general framework at a very broad and high level] of legality of mooring semi permanent barges such as the Bubby Stockholm off the British coast, whether for the government or for private citizenry?</p>\n</blockquote>\n<p>The owner must moor it somewhere. If the mooring doesn't already exist then you need licences and/or permissions and/or consents from the relevant authorities/owners to make it. The Crown Estate owns about 50% of the UK foreshore and most of the seabed. There could be more than one authority/owner of the space to be occupied.</p>\n<p>On the inland waterways you will need either a permanent mooring licence or a continuous cruising licence.</p>\n<p>If you stay in one place sufficiently long you become liable for council tax.</p>\n<p>You will either somehow travel to the mooring or (more conveniently) the mooring is near a jetty. Does the jetty already exist or must it be built? Is there additional infrastructure to be built, such as parking, utilities (electricity, water, gas, sewerage), 24/7 security etc? To accomodate 500 people on one vessel you will need more than is required by occupants of a 34ft yacht or 70ft narrowboat.</p>\n<p>To lawfully start building things you need the appropriate permissions/consents.</p>\n<p>In the case of Bibby Stockholm and Portland Port, the government's position is that the barge is below 'mean low water'. This means planning permission to situate the barge is not required from the local authority - it is outside the LA's control.</p>\n<p>But the Mayor in her capacity as a local resident, not her office, claims the additional works such as the utilities infrastructure, exercise area and fences come into the jurisdiction of the local authority's planning powers.</p>\n",
"score": 1
}
] | 94,678 | CC BY-SA 4.0 | [
"united-kingdom",
"property",
"any-jurisdiction",
"law-of-the-sea",
"coast"
] | 1 | https://law.stackexchange.com/questions/94678/legality-of-privately-bibby-stockholming-to-save-land-costs |
Can defendants arraigned in federal court sometimes be "out on bail" secretly with no way for the public to know about or verify the bail? | <p>In <a href="https://politics.stackexchange.com/a/80782/16047">this answer to my Politics SE question *Is former president Trump "out on bail" as Chris Christie asserts? If so, were campaign funds used?</a> which ends:</p>
<blockquote>
<p>Bail is a particular type of bond in which the defendant submits an upfront payment that will be held until he returns to court, but there's no indication Trump was asked to post bail.</p>
</blockquote>
<p>there is a discussion about what "but there's no indication" means, including:</p>
<blockquote>
<p>Isn't posting bail generally a matter of public knowledge? We often hear about person X was released wrt case Y for Z amount of money. Which would bolster this answer.</p>
</blockquote>
<p>and</p>
<blockquote>
<p>Generally yes, it's disclosed to the public. I just don't know if it's legally required to be disclosed, or whether the judge has discretion. Law is weird...</p>
</blockquote>
<p>Chuckles that <em>Politics</em> SE would think <em>Law is weird</em> aside, this has piqued my curiosity.</p>
<p>Christie is a former US attorney with extensive experience in arraignments for corruption and similar crimes, and would be keenly aware of the difference between bond and bail. Further, the "out on bail" statement was made on national television amidst a discussion on truth and honesty in politics.</p>
<p>And yet I can't tell if the "out on bail" assertion is true, false, or currently unknowable with any certainty.</p>
<p><strong>Question:</strong> Can defendants arraigned in federal court sometimes be "out on bail" secretly with no way for the public to know about or verify the bail?</p>
| [
{
"answer_id": 94696,
"body": "<p><a href=\"https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.13.1_2.pdf\" rel=\"nofollow noreferrer\">Here</a> is one of the three Trump appearance bonds. As you can see, it is a personal recognizance bond, and not a dollar amount bond. He promises to appear, as required, and there is no money involved. There is a direct indication that he was not required to "post bail", which is a stronger statement that "no indication that he was".</p>\n",
"score": 15
},
{
"answer_id": 94700,
"body": "<p>It would be an extraordinary circumstance for a defendant to be out on bail or bond without that fact being part of the public record.</p>\n<p>In general, the public has access to court records under both the First Amendment and under the common-law right of access to judicial records, and it is difficult for a party or a court to justify removing that access.</p>\n<p>That right applies to bail records, as well, as we saw in the <a href=\"https://storage.courtlistener.com/recap/gov.uscourts.nyed.497086/gov.uscourts.nyed.497086.22.0.pdf\" rel=\"noreferrer\">George Santos case</a>.</p>\n<p>There, Santos was bailed out by family members, and he sought to have the bail records placed sealed to protect his family from harassment. The court granted that request, but reversed after news organizations objected and demanded access.</p>\n<p>The court reviewing those motions didn't admit that sealing those records was wrong, but it did hold that because the concerns of harassment were purely speculative, the high-profile nature of the case, the specific concerns raised about the possibility of Santos exchanging official acts for bail money, and the House Ethics Committee's interest in the records demonstrated that any interest in having the records sealed was outweighed by the public interest in disclosure.</p>\n<p>More practically, though, it would be difficult to conceal the fact of bail, as the fact that a defendant is walking around after an indictment would be a pretty good indicator that bail was granted.</p>\n",
"score": 8
}
] | 94,691 | CC BY-SA 4.0 | [
"federal-courts",
"arrest",
"politics",
"bail",
"arraignment"
] | 4 | https://law.stackexchange.com/questions/94691/can-defendants-arraigned-in-federal-court-sometimes-be-out-on-bail-secretly-wi |
What role does the person who signs post incorporation paperwork have in the company? | <p>I am a minor and my mother would be signing both the incorporation documents, I am under the impression there is no problem there as she would have no role.</p>
<p>Since she signed these documents, does she hold any additional duties or responsibilities as a result of that signature? How can she relinquish those responsibilities?</p>
| [
{
"answer_id": 30616,
"body": "<p>Running a C-Corp is no easy matter, I would suggest first you look very hard at why you want to do a C-Corp vs an LLC with an S-Corp election. There is a lot of documentation/formalities that if not followed allow somebody to \"pierce the veil\" and bind the principles legally. You also miss out on tax savings opportunities with recent legislation and subject yourself to double taxation, which is beyond the scope of this question. Think carefully.</p>\n\n<p>To answer your question, the person who signs the documents is the founder/former of the corporation. You can file paperwork to remove that person from the corporation, however in your case I would not do that, and here's why...</p>\n\n<p>One of your principle shareholders will be a minor. A minor cannot be held to the same contract standards as majority adults. This means that many organizations that would otherwise gladly do business with you (like a bank account) will immediately turn away. You need an adult to bind the company and all the principles should be legal adults. You cannot allow your minor business partner to be part of any contract or a party to a signatory on a contract.</p>\n\n<p>Yes, a minor can hold \"shares\" of a corporation, but they are severely limited in that they carry no voting rights. They do give the holder dividends, but there are tax implications there too that the corporation needs to be careful of. </p>\n\n<p>You will need to disclose that your business partner is a minor in your dealings, not doing so can open you up to all kinds of trouble. That alone is enough to make many organizations walk away. I would suggest that you keep all your principles as majority adults and draft documents that transfer the shares to the minor upon the age of majority. </p>\n",
"score": 2
}
] | 30,604 | CC BY-SA 4.0 | [
"united-states",
"corporate-law",
"minor",
"incorporation"
] | 1 | https://law.stackexchange.com/questions/30604/what-role-does-the-person-who-signs-post-incorporation-paperwork-have-in-the-com |
A 3 point credit is applied to your driving record for a 2-year period | <p>Does the following statement mean that the 3 point credit is only good for 2 years and after that the credit points will disappear?</p>
<blockquote>
<p>"<a href="https://www.alberta.ca/driving-responsibly.aspx" rel="nofollow noreferrer">If a Government-approved defensive driving course has been successfully completed prior to accumulating 15 or more points, a 3 point credit is applied to your driving record for a 2-year period.</a>"</p>
</blockquote>
| [
{
"answer_id": 90549,
"body": "<p>Yes, that's what that means. But if you continue reading the article that you referenced, you will see that demerit points themselves also expire after 2 years:</p>\n<blockquote>\n<p>When 2 years have passed from the date of a conviction, the demerit\npoints assessed for that conviction are removed from your driver's\nrecord.</p>\n</blockquote>\n",
"score": 2
}
] | 90,548 | CC BY-SA 4.0 | [
"driving",
"alberta"
] | 2 | https://law.stackexchange.com/questions/90548/a-3-point-credit-is-applied-to-your-driving-record-for-a-2-year-period |
Is there a viable cause of action for exposing someone of academic misconduct? | <p>Is there a viable cause of action for exposing someone's academic misconduct from a country different than the one the exposed person lives and works.</p>
<p>For instance if you live in a European country, the exposed person also lives in a different European country and the site that exposes him is based in America such as this case:<a href="https://rwincblog9.wordpress.com/2023/06/15/11/" rel="nofollow noreferrer">https://rwincblog9.wordpress.com/2023/06/15/11/</a>, are the elements of defamation made out?</p>
| [
{
"answer_id": 94694,
"body": "<p>If A defames B, the fact that the parties live and work in different countries is not a bar to a defamation lawsuit. This is not changed when platform C is headquartered in a third country. A choice of law question does arise, which is important because B can always sue A, but they might have a legally-better outcome if they sue in the defendant's jurisdiction (plaintiff-friendly rules) yet they might be concerned over the "home courts advantage". The EU has <a href=\"https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A32007R0864\" rel=\"nofollow noreferrer\">a rule</a> applying "to non-contractual obligations in civil and commercial matters" which expressly excludes "non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation" (there is no uniform EU answer). <a href=\"https://tlblog.org/multistate-defamation-cross-border-torts-and-choice-of-law/\" rel=\"nofollow noreferrer\">This article</a> touches on such considerations in transnational defamation.</p>\n<p>Whether or not some specific content rises to the level of defamation depends on the actual facts (was there plagiarism, which is not a legally-defined category unlike copyright infringement), and the choice of law.</p>\n",
"score": 1
}
] | 94,693 | CC BY-SA 4.0 | [
"defamation"
] | 2 | https://law.stackexchange.com/questions/94693/is-there-a-viable-cause-of-action-for-exposing-someone-of-academic-misconduct |
Is use of force in defense of another legal if the person being defended opposes the use of force? | <p>Bob threatens John with a gun. Alice, who is also carrying a gun (legally), draws her gun and aims at Bob, intending to shoot him in defense of John, who is unarmed. John says to her, "Don't shoot him!" Alice shoots Bob anyway. Is this legal?</p>
<p>Assume that it would have been unquestionably legal had John consented or remained silent.</p>
| [
{
"answer_id": 94688,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>Alice's defence will be that she had an honest belief, given the circumstances, that force was necessary and the force she used was reasonable in defence of John (and possibly Alice).</p>\n<p>John's consent is irrelevant unless it had some bearing on that.</p>\n<p>Why did John oppose the use of force?</p>\n<p>Did John tell Alice not to shoot because he would rather die than cause a death? Irrelevant.</p>\n<p>Did John tell Alice not to shoot because he believed Bob was not a real threat due to circumstances X, Y and/or Z that he wanted Alice to heed? Relevant.</p>\n",
"score": 4
},
{
"answer_id": 94689,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<h3>This is a standard defence-of-another / self-defence analysis</h3>\n<p>See</p>\n<ul>\n<li><a href=\"https://law.stackexchange.com/a/90858/46948\">Is it legal to use force against a person who is trying to stop you from rescuing another person?</a></li>\n<li><a href=\"https://law.stackexchange.com/a/92336/46948\">Is it legal to use force against a person who is illegally trying to disconnect a hospital patient's life support with intent to kill the patient?</a></li>\n<li><a href=\"https://law.stackexchange.com/a/93809/46948\">Can a private party shoot down an aircraft in self defense or in defense of others?</a></li>\n</ul>\n<p>If Alice believes on reasonable grounds that there is a threat of force against John, then the defence called "<a href=\"https://law.stackexchange.com/a/87387/46948\">defence of another</a>" comes into play. It is codified at s. 34 of the <em>Criminal Code</em>:</p>\n<blockquote>\n<p>34 (1) A person is not guilty of an offence if</p>\n<p>(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;</p>\n<p>(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and</p>\n<p>(c) the act committed is reasonable in the circumstances.</p>\n</blockquote>\n<p>"Unless the accused subjectively believed that force or a threat thereof was being used against their person or that of another, the defence is unavailable" (<em>R. v. Khill</em>, <a href=\"https://canlii.ca/t/jjlbr#par52\" rel=\"nofollow noreferrer\">2021 SCC 37, para. 52</a>). Such belief must also be based on reasonable grounds. They must also act <em>with the subjective purpose</em> of protecting themselves or the other person from that use or threat of force. There is also the final balance of reasonableness of the response, but I don't take you to be putting that into question.</p>\n<p><strong>As long as these are satisfied, then the defence is made out.</strong> And you haven't given enough information to know whether these elements are present.</p>\n<h3>Your scenario only presents evidential uncertainty</h3>\n<p>The scenario you describe only presents evidential uncertainty to the trier of fact. John's shout to "Don't shoot him" would just be part of the evidence relevant to establishing the reasonableness of Alice's belief that John was under the threat of force.</p>\n",
"score": 2
},
{
"answer_id": 94686,
"body": "<p><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a> has <a href=\"https://www.gesetze-im-internet.de/stgb/__32.html\" rel=\"nofollow noreferrer\">§32(2) StGB</a></p>\n<blockquote>\n<p>Notwehr ist die Verteidigung, die erforderlich ist, um einen gegenwärtigen rechtswidrigen Angriff von sich oder einem anderen abzuwenden.<br />\nSelf-defense is the defense which is necessary to defeat a present, unlawful attack against oneself <strong>or another</strong>. (my translation, emphasis by me)</p>\n</blockquote>\n<p>The question here becomes if John saying <em>"don't shoot him"</em> should make it clear to Alice that Bob is <strong>not</strong> making an unlawful attack. <em>"Don't shoot him"</em> is not the same as <em>"I consent to being attacked,"</em> and John cannot lawfully consent to being killed that way, anyway. It is possible to consent to being injured (many medical procedures would be assault if there is no consent), but a gun is not a suitable instrument for that.</p>\n<p>Any specific case would almost certainly be argued in court. You specified that without John's statement, the self defense would be found legal, and these circumstances are not altered by a shout in a confusing situation.</p>\n",
"score": 1
}
] | 94,684 | CC BY-SA 4.0 | [
"assault",
"any-jurisdiction",
"defense-of-others"
] | 1 | https://law.stackexchange.com/questions/94684/is-use-of-force-in-defense-of-another-legal-if-the-person-being-defended-opposes |
Leading customers to use cheaper solution invented for another domain instead of expensive patented solution. Infringement? | <p>Let's say there is a patented product A for domain A and there is a product B that does the same work but is invented for a different domain B.</p>
<p>If a company in domain A shows its customers that they can also use product B for domain A, is it an infringement of the patent? The intention is obviously to lead users to be able to access the cheap solution. In case it is an infringement, what if a Youtuber makes a tutorial and shows how to use the cheap solution to the domain A to people? I don't think there is a way to prevent this even if the company does not want it.</p>
<p>For example, there is a broadcasting camera tracker which cost around 100k~200k but a similar product that does the same work but was invented for robotics is just 1k.</p>
<p>What's your thought?</p>
<p>Added:</p>
<ol>
<li><p>Patent of the product A, intended for the broadcasting industry: <a href="https://patents.google.com/patent/AU2013257788B2/en?assignee=ncam&oq=ncam" rel="nofollow noreferrer">https://patents.google.com/patent/AU2013257788B2/en?assignee=ncam&oq=ncam</a></p>
</li>
<li><p>An example of product B, used for different domains. <a href="https://www.intelrealsense.com/tracking-camera-t265/" rel="nofollow noreferrer">https://www.intelrealsense.com/tracking-camera-t265/</a></p>
</li>
</ol>
<p>A similar algorithm is used on both products. According to the patent, it sounds like using product B for the broadcasting industry is infringing their IP. I want my customers to be able to buy a tracker for under $200.</p>
| [
{
"answer_id": 94675,
"body": "<p>There are several issues - one is that patents are given for specific ways of solving a problem, sometimes very narrowly different from other ways of solving a problem, not for a result. There are usually many ways to achieve a result.</p>\n<p>Another, that you bring up, is “field of use”. That comes into play in method claims but not usually in device or systems claims. A claim to a “thing”- system, device, machine etc. is infringed by another thing (that fits within the claimed definition) just sitting on a shelf in a box. Intended use is not traditionally relevant. If a device for any intended use fits the words of a claim, it infringes. In your case the preamble of a system claim says “system <em>for</em> mixing or compositing in real-time, computer generated 3D objects”. At least in the US that would not usually be limiting to that use but just taken as a description of the thing, not requiring actual specified use to infringe. Read it as “capable of being used for”.</p>\n<p>Method claims <em>can</em> limit field of use. A method for getting rust cleared from a screwdriver that had a step “provide a rusty screwdriver” would be limited to that use.</p>\n<p>Another example would be a back scratcher configured exactly as a small garden rake but claimed in a method for scratching one’s back. Assume the garden rake is known - the backscratcher as a thing could not be patented, but a method of using something of a certain shape and design (small garden rake) to scratch your back could be. Someone with a garden rake couldn’t scratch their back even though they owned the garden rake. Note that a small garden sold as good for use as a backscratcher would be committing contributory infringement unless they had a license.</p>\n<p>Something being covered by a patent owned by its manufacturer does not mean it, or its use, does not infringe some other patent owned by a totally unrelated entity. Of course it is possible a manufacturer has licensed relevant patents of others.</p>\n<p>The patent you link to is not only described as used for broadcast. Gaming and other entertainment uses are mentioned.</p>\n<p>As mentioned in another answer, the Intel device works in a way that doesn’t fall under the claims of the sited patent. It has two cameras in total while the claims require a main camera and two additional cameras to do the position determination another with other inertial sensors. Some uses of the Intel device could theoretically infringe method claims in one or more un-sighted, unknown, patents.</p>\n<p>If someone bolted the intel device to a “film camera” and used the combination as described in the method claim you might get the quality image you need and only use the intel device for the position information. Then you might infringe.</p>\n",
"score": 4
},
{
"answer_id": 94680,
"body": "<h2>It probably doesn't violate the patent because it uses two cameras instead of three.</h2>\n<p>I'm not a lawyer, but it seems pretty apparent to me that the Intel device doesn't violate the patent. The patent states the following:</p>\n<blockquote>\n<p>(b) a pair of stereoscopic witness cameras are fixed directly or indirectly to the film camera;</p>\n</blockquote>\n<p>The Intel® RealSense™ Tracking Camera T265 uses two cameras, not three. This is plainly visible when you look at the images of the device on the store page.</p>\n<p>Additionally, I imagine that the video quality of those cameras is probably adequate for the purposes they were designed for, but probably aren't up to the level needed for professional film productions unless you're filming a found-footage film like the <em>Blair Witch Project</em>. That's probably where a lot of the cost for the patented device you're referencing is coming from.</p>\n",
"score": 3
}
] | 94,667 | CC BY-SA 4.0 | [
"patents"
] | 3 | https://law.stackexchange.com/questions/94667/leading-customers-to-use-cheaper-solution-invented-for-another-domain-instead-of |
Is it trademark fair use to use company name/logo on your resume? | <p>I have an online resume website that I created, and I list the logos of companies I've work with over the course of my career. Rather than a dry date list of work experience, I'm just listing the names and logos of the companies on the website. I even have a disclaimer stating this in no way represents endorsement or sponsorship.</p>
<p>I assume this use of the names / logos is considered fair use, an anyone can put a companies name or logo on their resume to state where and who they've work with when talking about their work experience / history. This is exactly what I'm doing here, and what happens when people fill out their LinkedIn profiles too.</p>
<p>Is is considered trademark fair use to use a company logo on your resume?</p>
<p>My website is an online resume / portfolio to use as a digital resume outside of LinkedIn or other places. For reference, it's located here: <a href="http://chrispietschmann.com" rel="nofollow noreferrer">http://chrispietschmann.com</a></p>
| [
{
"answer_id": 94676,
"body": "<p><strong>No, it's not fair use</strong>. It's also not nominative fair use (the fair use equivalent for trademarks) as another answer suggests.</p>\n<p><strong>Why is it not nominative fair use?</strong></p>\n<p>There are three conditions for nominative fair use (taken from <a href=\"https://en.wikipedia.org/wiki/Nominative_use\" rel=\"nofollow noreferrer\">Wikipedia</a>):</p>\n<ol>\n<li>The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute).</li>\n<li>The user only uses as much of the mark as is necessary for the identification (e.g. the words but not the font or symbol).</li>\n<li>The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial, and the same test applies for metatags.</li>\n</ol>\n<p>The first two conditions really rule out any right to use a company's logo on a resume. Instead, the careful reader will notice that nominative fair use is actually the legal basis for your right to name the companies on your resume at all.</p>\n",
"score": 3
}
] | 33,876 | CC BY-SA 4.0 | [
"trademark"
] | 3 | https://law.stackexchange.com/questions/33876/is-it-trademark-fair-use-to-use-company-name-logo-on-your-resume |
Is performing another's duty a valid form of consideration? | <p>Under state law parents have a legal duty to among other things educate minor children until they graduate from high school or an approved equivalent. The state also provides for public schools which are mostly taxpayer funded (the final two years of my high school education would have cost my parents about $1,500 in unavoidable fees).</p>
<p>Both of my parents signed nine legal documents that spelled out every party's responsibilities ad nauseam. My high school agreed to pay for 50 credit hours at a local college and accept those credits as the complete fulfillment of my high school graduation requirements.</p>
<p>My guess is that the district received some manner of a discount. But were my parents to purchase this it would cost them about $47,000.</p>
<p>My father is trying to abrogate the deal he signed -- so far he hasn't met with success because the paperwork itself clearly states that all of the signatories (me, Mom, Dad, my counselor, and the principal) must agree to and countersign any modification to the agreement.</p>
<p>He states that since I am receiving the benefit, an education valued at about $47,000, and he "could have" satisfied the state's educational requirement in another way (sent me to a parochial school or <em>laugh</em> homeschooled me) the contract(s) he signed are invalid because the fact that he doesn't have to pay required text book fees, technology fees, lab fees, diploma and registration fees doesn't count as "consideration" so it isn't a binding contract.</p>
<p>PS: My father is so <em>smart</em> that he felt no need to have a lawyer review anything before he signed it.</p>
| [
{
"answer_id": 94673,
"body": "<p>Contracts are routinely held to be valid even when there is negligible or literally zero financial “gain” (compensation, which they take into consideration in order to enter into the contract). A document purporting to be a contract might be held invalid if it is a bare promise like “I promise to give you $100 on Friday”, but you can make it an enforceable contract by including “if you give me a french fry today”. Reasoning that party “could have” done something else does not invalidate a contract, for example the party might have had $3 at the time and could have purchased a whole bag of fries. The only imaginable relevance of “I could have” thinking would be if the terms of the contract are so unclear that the party would not reasonably have understood the contract to have obligated them to pay $100, or that they would have reasonably believed that they were to receive a suitcase full of french fries.</p>\n<p>There is a (huge) difference between subjective errors in interpreting a contract and objective uncertainty. Objective uncertainty is fundamentally about the linguistic structure of the agreement, i.e. words like “it” which have no intrinsic referent, or “required books and clothing” (which could mean “required books and all clothing”, or “required books and required clothing”). There may be special rules of legal interpretation addressing how such ambiguities are resolved (this one is not well established, but is known in some spheres as the “across-the-board rule”). Personal interpretation does not enter into decisions as to the validity of a contract: if you misinterpret the words of a contract, regardless of how strong your proof is that at the time you did not understand the contract, that doesn’t matter, unless you can show that at the time you were actually not competent (did not know Armenian and could not have understood what the contract required). The courts look at the words of the contract, assume that the parties have availed themselves of wise legal counsel, and understand how the courts would interpret the contract, then they filter the words of the contract through a sieve composed of rules constituting "the law", and declare what parties A and B must do.</p>\n",
"score": 3
}
] | 94,670 | CC BY-SA 4.0 | [
"contract-law",
"education",
"school",
"compensation",
"school-law"
] | 2 | https://law.stackexchange.com/questions/94670/is-performing-anothers-duty-a-valid-form-of-consideration |
Why is research grade ethanol seemingly exempted from excise duties while pure ethanol ment for consumption isn't? | <p>At <a href="https://www.sigmaaldrich.com/" rel="nofollow noreferrer">Sigma-Aldrich</a> I can buy <a href="https://www.sigmaaldrich.com/NL/en/product/mm/818760?dclid=CLuHvemp04ADFU_KuwgdoKIHgw" rel="nofollow noreferrer">one liter of unadulterated ethanol</a> for just 26.60 EUR. This ethanol contains no additives and is pure enough for analytical purposes. Its made by fermenting grain or sugarcane. The solution contains 95.5% ethanol.</p>
<p>However, when I try to buy the same amount of consumer grade ethanol, then I suddenly have to <a href="https://www.heliosholland.com/Alcohol-96-1-liter" rel="nofollow noreferrer">pay 73.63 EUR</a> because of excise duties. This is strange because the research grade ethanol from Merck is about as pure as the consumer grade one.</p>
<p>In the EU <a href="https://taxation-customs.ec.europa.eu/denatured-alcohol-not-human-consumption_en" rel="nofollow noreferrer">pure ethanol is only exempt from excise duties when it is denatured in some way</a> but the ethanol sold by Merck / Sigma-Aldrich doesn't seem to be denatured in any way. It is not marketed as a biofuel either. Its an ethanol solution that's nearly as pure as the consumer grade ethanol but it somehow is still exempt from excise duties. Why is that?</p>
<p>EDIT:</p>
<p>Apparently the website can show different prices depending on the country you live in. Here's a screenshot of the prices I'm seeing. I live in the Netherlands.</p>
<p><a href="https://i.stack.imgur.com/bYEx2.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/bYEx2.png" alt="enter image description here" /></a></p>
<p>Here's the price at checkout. Some tax is added but I don't think its excise duty related. The total price is still far lower then the price you pay for consumer grade ethanol.</p>
<p><a href="https://i.stack.imgur.com/vtWFh.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/vtWFh.png" alt="enter image description here" /></a></p>
| [
{
"answer_id": 94636,
"body": "<h2>Because there’s an exemption</h2>\n<p>Which requires denaturing.</p>\n<p>But there’s also an exemption to the exemption for when denaturing is not appropriate. Such as for laboratory use.</p>\n",
"score": 10
},
{
"answer_id": 94642,
"body": "<h2><a href=\"https://www.belastingdienst.nl/wps/wcm/connect/bldcontenten/belastingdienst/customs/excise_duty_and_consumer_tax/excise_duty_and_consumer_tax/exemption_from_excise_duty_andor_consumer_tax/\" rel=\"nofollow noreferrer\">Medical or Lab Alcohol are taxed differently</a></h2>\n<p>For the excise tax, some alcohols are not counted, as the government (Customs Administration of the Netherlands, Ministry of Finance) themselves say:</p>\n<blockquote>\n<p>Excise goods</p>\n<p>Under certain conditions, you can be exempted from excise duty. Examples include:</p>\n<ul>\n<li>ethyl alcohol not intended for internal use by humans</li>\n<li>ethyl alcohol used for manufacturing medicines</li>\n</ul>\n</blockquote>\n<p>Those two exceptions cover all laboratory alcohol, including non-denatured spirits.</p>\n<p>Also, do note the little yellow checkmark at the end of the shopping item: to buy (and import) that alcohol for the reduced tax rate, you need to prove to the seller, that you buy it for those excise-tax-exempt reasons such as laboratory work and not to create, for example, your own Limoncello by soaking lemon peel in it.</p>\n",
"score": 10
}
] | 94,632 | CC BY-SA 4.0 | [
"european-union",
"tax-law",
"alcohol",
"biosafety"
] | 4 | https://law.stackexchange.com/questions/94632/why-is-research-grade-ethanol-seemingly-exempted-from-excise-duties-while-pure-e |
Work time when unable to work due to power outage (germany) | <p>I'm working in an office space where I don't have fixed daily hours but a weekly amount of hours in my contract. Electricity is necessary to do my job (on computers).</p>
<p>We had a power outage due to a snow storm, resulting in ~2 hours without electricity. In those 2 hours, I took my 30 minute mandatory pause. When it seemed like the outage would take longer, the manager told us to either call it a day and go home, or wait it out and continue working when power was back. I waited it out and continued work after the outage. However, the company is of the opinion that the time we waited until the power came back is not work time.</p>
<p>I did a little research online and so far found that time spent in the workplace unable to work because of reasons beyond my own ability to work is at the employers risk. I know that I need to accept different tasks that would be possible during the outage and are doable by my abilities. However, I wasn't asked to do something else.</p>
<p>My question is whether the company or my research is correct and if the company can subtract 1.5 hours from my worktime ? Did giving me the choice of going home (which of course means doing overtime on other days to meet the weekly quota) or staying put the risk in my lap ? Should I have actively asked to get other work assigned ?</p>
| [
{
"answer_id": 88850,
"body": "<p>If you were in the office, and ready to take instructions what to do from your manager, then you were legally working and need to be paid. There's plenty of things you can do in an office without electricity unless it's too dark. If the manager didn't ask you to do anything, it's the company's problem, not yours.</p>\n<p>If you took the opportunity to leave for 90 minutes to do your weekly shopping, then you shouldn't get paid.</p>\n",
"score": 8
},
{
"answer_id": 94524,
"body": "<p>Assuming you are a regular employee and were present and ready to do work during your contractually agreed working hours, you are entitled to your salary for that time, even if you could not actually do anything productive.</p>\n<p>The fact that your work needs electricity is something the employer has to make sure is available, there is no way for a single employee to somehow change that.</p>\n<p>This is part of what is called "Betriebsrisiko":</p>\n<blockquote>\n<p>Der Arbeitgeber hat das Risiko der Unmöglichkeit der Arbeitsleistung aus im Betrieb liegenden Gründen schlechthin zu tragen und bleibt zur Lohnfortzahlung verpflichtet, auch wenn diese Gründe nicht betriebstechnische Störungsursachen haben oder auf einem Versagen der sachlichen oder persönlichen Mittel des Betriebes beruhen, sondern von außen auf das Unternehmen einwirken (BAG, 09.03.1983 - 4 AZR 301/80). Damit sind gerade die Ursachen angesprochen, die von außen auf typische Betriebsmittel (z. B. Maschinen, Fabrikgebäude, Heizungsanlagen) einwirken und sich für den Arbeitgeber als ein Fall der höheren Gewalt darstellen, z. B. Naturkatastrophen (Erdbeben, Überschwemmungen, Brände), Unglücksfälle sowie extreme Witterungsverhältnisse. In allen diesen Fällen hat der Arbeitgeber das Betriebsrisiko zu tragen (so BAG aaO, bestätigt durch BAG, 23.9.2015 - 5 AZR 146/14, Rn. 22).</p>\n</blockquote>\n<p><a href=\"http://www.jura-basic.de/aufruf.php?file=6&art=&find=Arbeitsrecht_Betriebsrisiko\" rel=\"noreferrer\">Source</a></p>\n<p>Translation:</p>\n<blockquote>\n<p>The employer must bear the risk of the impossibility of work performance for reasons within the company and remains obligated to continue to pay wages, even if these reasons are not due to operational disruptions or are based on a failure of the material or personal resources of the company, but have an external effect on the company (BAG, 09.03.1983 - 4 AZR 301/80). This refers precisely to causes that affect typical operating resources (e.g. machines, factory buildings, heating systems) from the outside and present themselves to the employer as a case of force majeure, e.g. natural disasters (earthquakes, floods, fires), accidents and extreme weather conditions. In all these cases, the employer has to bear the operating risk (thus BAG loc.cit., confirmed by BAG, 23.9.2015 - 5 AZR 146/14, para. 22).</p>\n</blockquote>\n<p>As an example, <a href=\"https://web.archive.org/web/20050128011822/http://www.lexrex.de/rechtsprechung/entscheidungen/ctg1079949363128/530.html\" rel=\"noreferrer\">here</a> is a court decision of such a case.</p>\n<p>Please note that during a time when you cannot do your original job, assuming a normal employment contract that has the default clause "and other tasks as required by the employer" in it, your employer may ask you to do other tasks instead that day. As long as they are not dangerous, you may end up finally cleaning all your desks, watering the plants, cleaning the kitchen and sweeping the hallway. Maybe help by calling customers, landlines used to work without external electricity, maybe they still do. You get paid for working, you might be assigned other tasks.</p>\n<p>Even if you get sent home early (lets say the heating broke and the repairman is only coming the next day), <em>they still need to pay you</em> for your regular working hours.</p>\n<p>They do <em>not</em> need to pay you for overtime. Overtime is not something you can just "take", it needs to be accepted by both sides and obviously the company would never accept that you work "overtime" staring at walls doing nothing. So saying "oh, we cannot work today, great, today is the day I wanted to do 3 hours of overtime, pay up!" is not going to fly.</p>\n<p>If <em>they ask you</em>, if you can stay longer than normal and work after the problem is solved, then obviously they need to pay overtime.</p>\n<p>Please note that you still need to be available for work. You cannot just decide for yourself to not come in. If you leave without the company officially sending you home, you just left work and are absent. You will not be paid for that.</p>\n",
"score": 5
},
{
"answer_id": 88862,
"body": "<p><strong>Company office or co-working space?</strong></p>\n<p>If the workplace was provided by the company, the answer by <a href=\"https://law.stackexchange.com/questions/88843/work-time-when-unable-to-work-due-to-power-outage-germany/88850#88850\">gnasher729</a> applies. You were not even required to take your break at that point, if it wasn't the normal lunch time.</p>\n<p>These days some workers are working either from home or from a self-provided offices, which would put more responsibility for providing a workspace (including power and internet connection) on themselves.</p>\n",
"score": 4
}
] | 88,843 | CC BY-SA 4.0 | [
"employment",
"germany",
"workplace"
] | 10 | https://law.stackexchange.com/questions/88843/work-time-when-unable-to-work-due-to-power-outage-germany |
Who has ultimate responsibility for a child injured on a school trip? | <p>A school is going on an excursion. The child is given the permission slip to take home and get signed by his legal guardian, but he forges the signature instead. On the excursion, he gets injured. Who is legally responsible for the child? Is it the school (since the waiver is void, and by default the school is responsible for the child when a roll is taken) or the parent (since the school sincerely thought the parent had signed the waiver and if the waiver was correctly signed then the parent would be responsible)?</p>
<p>Preferred jurisdiction Australia; I will accept any answer however.</p>
| [
{
"answer_id": 94653,
"body": "<p>So many things were not addressed, so a precise answer is not possible.<br>\nBut to try to raise the proper questions you should be thinking about:</p>\n<p><strong>Should the school have known the permission slip was forged?</strong><br>\nWas the forgery particularly bad, and the school was lax in not examining it? Did the student have a history of forging slips that the school should have been aware of?</p>\n<p>If the school was negligent in accepting an obviously bad signature, they may find their exposure is increased. If the school had no reasonable way to know the slip was forged, they were acting reasonably in taking the student on an excursion.</p>\n<p><strong>Was the injury typical, foreseeable and recoverable?</strong><br>\nSuch as a broken ankle on a hike? Minor accidents happen even when all reasonable precautions are taken. The injury will heal with time and care.</p>\n<p><strong>Was the activity that lead to the injury inherently risky / dangerous?</strong><br>\nThere is definitely a question of if the school took all reasonable precautions. Even if permission was legitimately given, the school is responsible for taking reasonable precautions, <em>especially</em> if the activity has inherit and obvious dangers. (for example, river-rafting or rock climbing)</p>\n<p><strong>What sort of "responsibility" are you interested in?</strong><br>\nIf you're asking who is financially responsible for the cost of treating the injury, then regardless of how it occurred, it would likely fall to the child's health insurance (presumably provided by the parents).</p>\n<p>If the school was truly negligent in allowing a forged permission slip to a dangerous activity, then they could be found responsible for extraordinary costs associated with the injury, other costs (pain, suffering, loss of opportunity, emotional consequences, etc) and perhaps even punitive damages.</p>\n<p>If you're suggesting that someone might be <em>criminally</em> responsible, then a very high bar would need to be cleared. It would need to be proven that a school representative (eg. teacher or administrator) <em>deliberately</em> put the kid in danger for some reason, <em>knowing</em> what the likely outcome would be. That standard seems extremely unlikey to be met.</p>\n",
"score": 16
},
{
"answer_id": 94648,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>Assuming consent is actually required<sup>1</sup> and the forged signature is convincing enough: in absence of statute or case law to the contrary (that I can find) I suggest that the school has accepted <em>loco parentis</em> responsibility for the child by taking him on the trip.</p>\n<p>Also assuming the injury was caused by the school's lack of proper safeguarding, negligence, recklessness etc the school would - depending on the particular circumstances - be responsible for the injury as the following government's <em>Health and safety: responsibilities and duties for schools</em> guidance would apply:</p>\n<blockquote>\n<p>Teachers and other staff in schools have a common law duty when in charge of pupils to take the same care of them as they would as a parent.</p>\n<p><a href=\"https://www.gov.uk/government/publications/health-and-safety-advice-for-schools/responsibilities-and-duties-for-schools#duties-on-employees\" rel=\"noreferrer\">Source</a></p>\n</blockquote>\n<hr />\n<p><sup>1</sup>NB consent is not always required.\nThe government's <em>Health and safety on educational visits</em> guidance establishes that:</p>\n<blockquote>\n<p>A school must always get written consent for nursery age children.</p>\n<p>For children over nursery age, written consent is not needed for most trips, as they’re part of the curriculum. However, it’s good practice to tell parents about them.</p>\n<p>Written consent is usually only needed for trips that:</p>\n<ul>\n<li><p>need a higher level of risk assessment</p>\n</li>\n<li><p>are outside normal school hours</p>\n</li>\n</ul>\n<p><a href=\"https://www.gov.uk/government/publications/health-and-safety-on-educational-visits/health-and-safety-on-educational-visits#when-to-get-consent-from-parents\" rel=\"noreferrer\">Source</a></p>\n</blockquote>\n",
"score": 10
},
{
"answer_id": 94647,
"body": "<h2>The school has a duty of care towards its students</h2>\n<p>If they discharged that duty, they are not responsible (liable); if they didn’t, they are.</p>\n<p>The duty is discharged by acting reasonably. Without knowing what the school did or did not do and how, if at all, that contributed to the injury, it’s impossible to guess if they met that standard.</p>\n<p>This is the same as the negligence standard that applies to everybody. The only difference with a school is that the duty always exists towards students and the duty is non-delegable, that is, even if control is passed to someone else (e.g. the bus or venue operator) the school still holds the duty (as well as the delegate).</p>\n",
"score": 9
}
] | 94,643 | CC BY-SA 4.0 | [
"australia",
"minor",
"school",
"duty-of-care"
] | 9 | https://law.stackexchange.com/questions/94643/who-has-ultimate-responsibility-for-a-child-injured-on-a-school-trip |
How many indictments before imprisonment? | <p>Donald Trump, ex-president of U.S.A., has many indictments on him, but yet he is still roaming as a free citizen.</p>
<h2>Questions:</h2>
<ol>
<li><p>How many indictments does it take for Donald Trump to be imprisoned?</p>
</li>
<li><p>Can a person who is indicted, before running for president, become president?</p>
</li>
<li><p>What's the purpose of indicting Mr. Trump if indictments are only an accusation?</p>
</li>
</ol>
| [
{
"answer_id": 94663,
"body": "<blockquote>\n<ol>\n<li>How many indictments does it take for Donald Trump to be imprisoned?</li>\n</ol>\n</blockquote>\n<p>An unlimited amount. Imprisonment is usually authorized as a result of a conviction rather than from an indictment.</p>\n<p>Pretrial detention following an indictment but prior to a conviction is permitted, but discretionary in the judgment of the judge. Also, there is a right to post a judicially determined reasonable bond to obtain release from pretrial detention after one is indicted and before one is convicted in the vast majority of cases (including the ones that President Trump is facing).</p>\n<blockquote>\n<ol start=\"2\">\n<li>Can a person who is indicted, before running for president, become president?</li>\n</ol>\n</blockquote>\n<p>Yes. Indeed, the majority view of legal scholars (it is has never been tested in a real case) is that someone who is convicted and serving prison sentence can still become President if that is who the voters choose.</p>\n<blockquote>\n<ol start=\"3\">\n<li>What's the purpose of indicting Mr. Trump if indictments are only an accusation?</li>\n</ol>\n</blockquote>\n<p><a href=\"https://i.stack.imgur.com/gzUnW.png\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/gzUnW.png\" alt=\"enter image description here\" /></a></p>\n<p>An indictment is a pre-requisite to trying someone for a felony in federal court. To convict someone of a crime one needs to first indict them, then have a jury trial, and then have a jury unanimously vote to convict a person, before they can be convicted of a crime and sentenced for it. Even after conviction, there is a statutory (but not a constitutional) right to a direct appeal of that conviction to an appellate court.</p>\n<p>Also, an indictment is more than a mere accusation. An indictment in a determination of a <a href=\"https://en.wikipedia.org/wiki/Grand_juries_in_the_United_States#Rubber_stamp_for_the_prosecution\" rel=\"noreferrer\">grand jury</a> that probable cause exists to believe that the person indicted committed the crime charged. In the federal court system grand juries are composed of 16 to 23 members and 12 members of the grand jury must concur in a decision to indict a defendant on a charge for there to be an indictment on that charge.</p>\n<p>This prevents people from enduring criminal prosecutions on charges that a majority of a grand jury finds are so baseless that there is not sufficient evidence to establish probable cause that the defendant committed that crime. The grand jury must base its decision to indict or not on actual evidence in support of the charges in the form of sworn witness testimony and exhibits, not just the allegations of the prosecutor.</p>\n<p>As a practical matter, the standards of professionalism in federal criminal prosecutions is so high that <a href=\"https://www.washingtonpost.com/news/the-fix/wp/2014/11/24/the-rarity-of-a-federal-grand-jury-not-indicting-visualized/\" rel=\"noreferrer\">almost all charges sought by federal prosecutors from grand juries result in indictments on those charges</a> (federal grand juries refuse to indict approximately one in 16,000 times).</p>\n<p>But, in state courts that use grand juries, which can't pick and choose only the best cases to prosecute, grand juries routinely refuse to indict defendants on a substantial share of charges brought to them by prosecutors (on the order of one in 20). One source <a href=\"http://www.kslegislature.org/li_2020/b2019_20/committees/ctte_s_jud_1/documents/testimony/20200123_04.pdf\" rel=\"noreferrer\">notes</a>:</p>\n<blockquote>\n<p>Statistical figures showing a higher prevalence of grand jury\nreluctance to follow the government in ages past are almost\nnonexistent. However, a table of felony arrests in New York County\nbetween 1900 and 1907 found on page 111 of the 1926 book The Prisoner\nat the Bar by Arthur Train provides some rare illumination. In those\nseven years, some 5,214 out of 57,241 people were arrested by the\npolice on felony charges whom New York state grand jurors decided not\nto indict.</p>\n</blockquote>\n<p>Grand juries are especially likely to decline to indict defendants in cases involving <a href=\"https://www.nfl.com/news/second-texas-grand-jury-declines-to-indict-browns-qb-deshaun-watson-on-criminal-\" rel=\"noreferrer\">celebrities</a>, <a href=\"http://www.kslegislature.org/li_2020/b2019_20/committees/ctte_s_jud_1/documents/testimony/20200123_04.pdf\" rel=\"noreferrer\">politicians</a>, <a href=\"https://abcnews.go.com/US/breonna-taylor-case-sparks-renewed-scrutiny-grand-juries/story?id=73438566\" rel=\"noreferrer\">law enforcement officers</a>, and other <a href=\"https://www.nbcnews.com/news/us-news/mississippi-grand-jury-declines-indict-woman-emmett-killing-rcna42274\" rel=\"noreferrer\">high profile cases with political implications</a>. <em>See also</em> Kaeleigh Wiliams, "<a href=\"https://scholarship.law.slu.edu/cgi/viewcontent.cgi?article=1076&context=lawjournalonline\" rel=\"noreferrer\">Grand Juries Should Not Hear Police Misconduct Cases: Grand Juries will Indict Anything, but a Police Officer</a>" <em>SLU Law Journal Online</em> 79 (2021).</p>\n",
"score": 8
},
{
"answer_id": 94662,
"body": "<ol>\n<li><p>You could have 100 indictments. You have to wait until one of the cases is finished with a "guilty" verdict.</p>\n</li>\n<li><p>The possibility may not have occured to anyone. Obviously yes if indictments end with a "not guilty" verdict.</p>\n</li>\n<li><p>When you go to court accused of murder, until the verdict is given it is "only" an accusation. That's the same for all criminal court cases. "Innocent until proven guilty". You start with an accusation, hopefully one that the prosecutor believes they can prove, then a judge and/or jury hear evidence, and then there is usually a "guilty" or "not guilty" verdict.</p>\n</li>\n</ol>\n",
"score": 2
},
{
"answer_id": 94664,
"body": "<ol>\n<li>Indictments are just accusations. Until convicted, Trump is innocent.</li>\n</ol>\n<p>Jailing people between indictment and trial is considered a necessary evil, not a good thing. It's done to either protect the public or ensure the defendent shows up. In cases where neither is a problem, the accused isn't locked up.</p>\n<ol start=\"2\">\n<li><p>Crimes and pubishment doesn't stop anyone for running for office, or from holding office. Only the voters can stop a candidate. Even an incarcerated inmate can legally be elected president.</p>\n</li>\n<li><p>You need to accuse someone before you prove they did what you accuse them of. First the accusal, then the trial.</p>\n</li>\n</ol>\n",
"score": 2
}
] | 94,661 | CC BY-SA 4.0 | [
"united-states",
"prison",
"us-president",
"indictment"
] | 0 | https://law.stackexchange.com/questions/94661/how-many-indictments-before-imprisonment |
Who is at fault in a car accident when running a red light? | <p>This question is prompted by me sitting at a green light today while multiple people streamed through from the opposite direction, turning to their left, against a red turn arrow. (Throughout this question, assume right-side traffic, as in North America, and no one-way streets.)</p>
<p>If I have a green light and enter a clear intersection, then it would seem obvious that an unseen red light runner on the cross-street, coming from my left/right, would be at 100% fault for hitting me and causing an accident.</p>
<p>But suppose I am sitting at an intersection waiting to go straight through and facing a red light, while traffic on the opposite side of the intersection has a green left-turn arrow, and are turning across my intended path.</p>
<p>The left-turning cars lose their green arrow, get a red arrow (or red light, or other signal that they no longer have the right-of-way), and I now get a green light, but the line of cars still continues, turning left and driving across in front of me, running their red left-turn arrow.</p>
<p>If I now enter the intersection and an accident occurs, who is at fault? Is it the opposing car for obviously running a red left-turn arrow? Or is it me for performing an unsafe action, even though I had a green light?</p>
<p>I can imagine that I would be allocated some/all fault if I can see all these cars driving in front of me but still enter the intersection, yet at other times there is some car wanting to turn that is lagging all of the others and it enters the intersection after I have already entered it (and I don't see them coming, making it like the original red light runner scenario I mentioned above). In such a case I would expect the turning car to be at fault. So there would seem to be an area where fault allocation moves from one driver to another.</p>
<p>I'm mainly interested in US interpretations, but any jurisdiction would be interesting to me.</p>
| [
{
"answer_id": 94656,
"body": "<p>The apportionment of fault will be highly case specific, based on ordinary principles of negligence.</p>\n<p>In one example, the fault was apportioned with 60% of the fault to the late left turner and 40% of the fault to the driver advancing imprudently into the intersection on a green light. See <em>Pierce v. ING Insurance</em>, <a href=\"https://canlii.ca/t/1q951\" rel=\"noreferrer\">2006 NSSM 31</a> (my annotations and emphasis):</p>\n<blockquote>\n<p>[11] <strong>I believe that Mr. Pierce [the left-turning driver] was late in entering this\nintersection. I do not accept that he could not have stopped on the\namber which he asserts. However, I am not prepared to find that he is\nsolely responsible at law for the collision.</strong></p>\n<p>[12] As stated above, I am unable to conclude with precise\nexactitude which signal light was on when Mr. Pierce [the left-turning driver] entered the\nintersection. I can conclude that the amber light had ceased and the\ngreen light for Mr. Williams [the through driver] had turned on at some point prior to the\ncollision. The intersection is a well known intersection and given Mr.\nMacKinnon’s evidence of the relative speed of Mr. Pierce’s vehicle and\nwhat I understand to be the distances involved, I cannot accept that\nthe signal light was green and turned to amber as Mr. Pierce entered\nthe intersection.</p>\n<p>[13] On the other hand I am struck by two inescapable facts.\nFirst, the fact that Mr. MacKinnon who was stopped next to Mr.\nWilliams did not proceed through the intersection because he knew it\nwould not be safe to do so. While to some extent I take Mr. Boyte’s\npoint that Mr. MacKinnon was, because of his experience with the\nintersection “hyper aware” to the prospect of drivers being late, I\ncannot entirely dismiss the fact that he obviously exercised prudence\nin not proceeding. The fact that Mr. Williams did not see Mr. Pierce’s\nvehicle is not an answer. In fact, just to the opposite in my view.</p>\n<p>[14] <strong>In my opinion, there is clear a duty on drivers stopped at an intersection to ascertain that the intersection is clear before proceeding once a light turns from red to green. Had Mr. Williams discharged this duty, the collision could well have been avoided.</strong></p>\n</blockquote>\n<p>Your scenario is even more stark—not just a single late left turner, but an entire line of late left turners, readily apparent as an obstacle to safe advance. I would not be surprised if a judge were to attribute even more than 40% fault to the driver entering on the green.</p>\n<p>The Court of Appeal for British Columbia has even said (<em>Pirie v. Skantz</em>, <a href=\"https://www.canlii.org/en/bc/bcca/doc/2016/2016bcca70/2016bcca70.html#par14\" rel=\"noreferrer\">2016 BCCA 70, para. 14</a>):</p>\n<blockquote>\n<p>... where a through driver ... should have become aware of the left-turning driver’s own disregard of the law in circumstances that afforded him a sufficient opportunity to avoid the accident through the exercise of reasonable care, <strong>the through driver may be found wholly or primarily at fault for the accident</strong>.</p>\n</blockquote>\n",
"score": 10
}
] | 94,655 | CC BY-SA 4.0 | [
"united-states",
"traffic",
"accident"
] | 6 | https://law.stackexchange.com/questions/94655/who-is-at-fault-in-a-car-accident-when-running-a-red-light |
What is a "lead defendant" in U.S. law? | <p>In its <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.648652/gov.uscourts.flsd.648652.105.0.pdf" rel="nofollow noreferrer">opposition to the government's motion for a protective order</a> in <a href="https://en.wikipedia.org/wiki/Federal_prosecution_of_Donald_Trump_(classified_documents_case)" rel="nofollow noreferrer">United States of America v. Donald J. Trump, Waltine Nauta, and Carlos De Oliveira</a>, Waltine Nauta's defense refers to Donald Trump as the "lead defendant". I'm wondering whether this is a precisely defined legal term. The term is apparently in common use, including in official government communication (e.g. <a href="https://www.ice.gov/news/releases/lead-defendant-massive-la-gang-racketeering-case-sentenced-30-years" rel="nofollow noreferrer">here</a>, <a href="https://www.justice.gov/usao-cdca/pr/lead-defendant-pleads-guilty-case-targeting-international-cocaine-trafficking" rel="nofollow noreferrer">here</a>, <a href="https://www.dea.gov/press-releases/2022/11/30/lead-defendant-pill-production-conspiracy-sentenced-federal-prison" rel="nofollow noreferrer">here</a>), but I can't find a definition for it anywhere.</p>
<p>The term seems to appear neither in the <a href="https://www.uscourts.gov/sites/default/files/federal_rules_of_civil_procedure_december_1_2022_0.pdf" rel="nofollow noreferrer">Federal Rules of Civil Procedure</a> nor in the <a href="https://www.uscourts.gov/sites/default/files/federal_rules_of_criminal_procedure_-_december_2020_0.pdf" rel="nofollow noreferrer">Federal Rules of Criminal Procedure</a>.</p>
<p>The <a href="https://en.wikipedia.org/wiki/Obergefell_v._Hodges" rel="nofollow noreferrer">Wikipedia article on Obergefell v. Hodges</a> says "Wymyslo was substituted as the lead defendant, and the case was restyled Obergefell v. Wymyslo", but none of the documents in the references for that statement contain the term "lead defendant". The statement seems to indicate that the lead defendant is the first one in the list of defendants, whose name is used for the case style. If so, does this have any legal relevance beyond the style?</p>
<p>In the <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.648652/gov.uscourts.flsd.648652.3.0.pdf" rel="nofollow noreferrer">original indictment</a> and the <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.648652/gov.uscourts.flsd.648652.85.0_4.pdf" rel="nofollow noreferrer">superseding indictment</a>, Walt Nauta and Carlos De Oliveira are referred to as "Trump's co-conspirators", whereas Trump himself is never referred to as a "co-conspirator". That might suggest that Trump is alleged to be something like the "lead conspirator", but the <a href="https://www.law.cornell.edu/uscode/text/18/371" rel="nofollow noreferrer">conspiracy statute</a> makes no distinctions among the conspirators.</p>
<p>So my impression is that "lead defendant" is just an informal term for the defendant whose name appears first in the list of defendants, and that this carries no legal implications. Is that correct?</p>
| [
{
"answer_id": 94652,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>"Lead defendant" is not used, unless colloquially by some, but a comparable term would be "principal defendant" which is more than mere style as it becomes important when establishing the hierarchy of defendants for, say, culpability and at sentencing (i.e. it has some legal implications).</p>\n<p>It could also relate to the first-named on the indictment (see <a href=\"https://www.legislation.gov.uk/uksi/2020/759/rule/3.32?timeline=false\" rel=\"nofollow noreferrer\">rule 3.32(1)(b)(ii)</a> Criminal Procedure Rules 2020) and often this is the principal, but the prosecutor has discretion on the order of names on the indictment, because:</p>\n<blockquote>\n<p>It is important to bear in mind that defendants are called to give evidence in the order in which their names appear on the indictment. This means that a tactical decision may need to be made as to the order of defendants on the indictment, bearing in mind the evidence and the nature of the case.</p>\n<p><a href=\"https://www.cps.gov.uk/legal-guidance/drafting-indictment\" rel=\"nofollow noreferrer\">Source</a></p>\n</blockquote>\n<hr />\n<p><sub>Although tagged <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a>, I have followed the guidance from the <a href=\"https://law.stackexchange.com/help/on-topic\">LawSE Help Centre</a>: "<em>Even if you supply a jurisdiction tag, we expect and encourage answers dealing with other jurisdictions ... please tag your answer using the tag markdown: [tag: some-tag]</em>"</sub></p>\n",
"score": 4
}
] | 94,650 | CC BY-SA 4.0 | [
"united-states",
"legal-terms"
] | 3 | https://law.stackexchange.com/questions/94650/what-is-a-lead-defendant-in-u-s-law |
Typo in disclaimer - worst case scenario | <p>I've noticed a typo on an investment company's disclaimer in a brochure, to the effect:</p>
<blockquote>
<p>This company and its research affiliate June continue to have such
dealings and June also have other ongoing business dealings with other
firms whose products are included herein.</p>
</blockquote>
<p>Clearly some one replaced all instances of "may" and replaced with "June."</p>
<h2>Question</h2>
<p>In the event that anything relating to this disclaimer does make its way all the way to court, what would the implications be? Would this be insufficient to cover the legal liability it was originally written to, given that it's now effectively garbled and ambiguous?</p>
| [
{
"answer_id": 94641,
"body": "<h2>Garbled and ambiguous?</h2>\n<p>I guess it took you all of 20 seconds to work out what it meant. Why do think a court can’t do that too?</p>\n<p>Documents contain typos, that doesn’t necessarily make them ambiguous.</p>\n<p>The automatic correction of typos is known as the <a href=\"https://www.azmilaw.com/insights/courts-decision-on-obvious-typo-errors-in-contracts/\" rel=\"nofollow noreferrer\">Scrivener’s doctrine</a> - a scrivener being an almost archaic term for a clerk, scribe, or notary, because documents were written for many centuries before the invention of the typewriter.</p>\n",
"score": 3
}
] | 94,634 | CC BY-SA 4.0 | [
"united-states",
"liability",
"court"
] | 3 | https://law.stackexchange.com/questions/94634/typo-in-disclaimer-worst-case-scenario |
If someone robs a bank at which (s)he has an account, can the bank deduct that amount from the robber's account? | <p>Bob has $100,000 in an account at First Example Bank. Bob robs the bank, taking $50,000, and he escapes. He is never caught, but the bank is 100% sure that he is the one who robbed the bank. Can they deduct $50,000 from his account to cover the loss, effectively turning the robbery into a withdrawal? Obviously, this doesn't make the robbery any less illegal, but it does offset the bank's loss.</p>
| [
{
"answer_id": 94630,
"body": "<p>If there has been no trial establishing Bob's guilt, the bank does not know that it was Bob who did rob the bank.</p>\n<p>Even if the bank has Bob on the security video feed, claiming that, "As my name is Bob, I will shoot anyone who does not follow my instructions", and Bob left behind his driver's licence at the heist, the bank does not <em>know</em> that it was Bob.</p>\n<p>The bank could sue Bob in a civil action in order to get the money back. It would have to follow some procedures to notify Bob of the lawsuit and, if he did not appear, it would win by default. If Bob were to appear, he could make his case about why the bank should not be entitled to that money ("It was not me" / "I only took $1,000" / whatever).</p>\n<p>After the trial had happened, the bank still could not take the money right away. Maybe Bob would offer some other assets worth $50,000 to pay the bank.</p>\n<p>After it had become evident that Bob was unwilling or unable to comply with the payments, then the bank could ask the court to seize Bob's assets. The court would decide which assets could be seized, would order to have them seized, and then would provide them to the bank.</p>\n<p>That does not mean that Bob would be free to use his $100,000 during this time. Before the trial is over, the bank could request the judge to freeze Bob's account, as a way of ensuring that he does not withdraw the money from it. The judge would evaluate the likelihood of Bob losing the trial and refusing to honour it (and whatever Bob's lawyer's objections to this are) and decide on the issue. But that would only affect Bob's ability to use the money, not his ownership.</p>\n",
"score": 34
},
{
"answer_id": 94659,
"body": "<p>I don't know if it's normal or not, but my Credit Union's membership agreement says that they can permanently freeze the account without warning to members who "cause a loss". They can also seize money for "obligations" though I don't know if that requires a trial or not.</p>\n<blockquote>\n<p>At any time and without notice we may suspend or terminate your Account or remove you from any Account on which you are an Authorized Signer or a Joint Account Holder or may require you to close your Account if...</p>\n<p>g. You cause a loss to BECU...</p>\n<p>...Suspensions may take the form of a\ntemporary or permanent “hold” or “freeze” on your Account at our\ndiscretion without prior notice to you...</p>\n<p>... If we\nterminate or close your Account, we will mail to the Primary Account Holder all funds in the Account, less any\nobligations owed to BECU by any Account Holder...</p>\n</blockquote>\n<p><a href=\"https://www.becu.org/-/media/Files/PDF/6514.pdf\" rel=\"noreferrer\">https://www.becu.org/-/media/Files/PDF/6514.pdf</a></p>\n",
"score": 11
}
] | 94,629 | CC BY-SA 4.0 | [
"theft",
"banking",
"any-jurisdiction",
"robbery"
] | 13 | https://law.stackexchange.com/questions/94629/if-someone-robs-a-bank-at-which-she-has-an-account-can-the-bank-deduct-that-a |
Someone withdrew money from my bank account - what are my rights? | <p>Someone withdrew money from my checking account (in several transactions) without my knowledge or permission. I was able to see the withdrawal slips online, and my signature was forged. I reported this to my bank as soon as I found out, and Chase said that the money would be reimbursed once they completed their investigation (within 10 business days). </p>
<p>It has now been 13 business days, and I have checked on the status twice and was told both times that there had been no status update, and they were unable to provide an updated ETA.</p>
<p>It's a fairly large amount of money, and I need to get it back as soon as possible. I'm trying to figure out if I have legal footing here. Does the law protect me from this type of fraud? And if so, does it require the bank to respond within any particular timeframe?</p>
<p>I live in California.</p>
| [
{
"answer_id": 4818,
"body": "<p><strong>I reported this to my bank as soon as I found out, and Chase said that the money would be reimbursed once they completed their investigation (within 10 business days).</strong></p>\n\n<p>Chase was likely indicating that the money will be reimbursed within 10 business days of completing their investigation; not 10 business days from the date you told the that someone forged checks on your account. This would make sense when you think about it, as they need to make sure that you were not complicit in the crime (you would be surprised how many people have had someone cash multiple checks from their account only to split the money with them and file a claim for fraudulent transfer/forgery). Further, checks are a negotiable instrument, unlike a credit/debit card, where specific protections exist pursuant to its terms and conditions of use. You have a duty to keep a negotiable instrument safe, and while most banks will reimburse you if it can be established that you had no involvement and you were not grossly negligent in the keeping of the instruments, it is a different animal in and of itself. </p>\n\n<p><strong>It has now been 13 business days, and I have checked on the status twice and was told both times that there had been no status update, and they were unable to provide an updated ETA.</strong></p>\n\n<p>Unless your bank indicated in the disclosures of the checking account application and acceptance documentation that in the event of a stolen check you will be reimbursed in X amount of days, they have the absolute right to complete their investigation before reimbursing any funds to your account.</p>\n\n<p><strong>It's a fairly large amount of money, and I need to get it back as soon as possible. I'm trying to figure out if I have legal footing here. Does the law protect me from this type of fraud? And if so, does it require the bank to respond within any particular timeframe?</strong></p>\n\n<p>Federal banking regulations provide broad protections to consumers when it comes to fraud involving credit/debit cards, as these are easily stolen from all sorts of means. That said, checks do not carry the same protections, although oftentimes some. National banks <em>may be</em> required to reimburse customers for forged checks. However, based on individual circumstances, the bank can investigate to determine if the customer is entitled to a reimbursement. There is not duty to reimburse until the investigation is complete. This is why I think you've potentially misconstrued what they said about how long it would take. They cannot promise a time certain when they don't know how long the investigation will take.</p>\n\n<p>Whether the bank is liable for the customer's loss depends on the specific circumstances of the case. Generally, a bank is liable for accepting a check that has been forged, altered, or improperly endorsed. However, if the bank can prove two things — that it accepted the check in good faith and exercised ordinary care and diligence in handling the transaction — it may not be liable.</p>\n\n<p>If your actions — the way the check or checkbook was handled, issued, completed, or made payable — contributed to the making of the forgery, you may be at least partially liable. Generally, the bank will require you to complete an affidavit. It may also request that you file a police report.</p>\n\n<p>** Addition: I forgot to mention that if the checks were not \"cashed\" (i.e. filled out to cash or cashed in person), but rather were presented to a 3rd party for payment in receipt of goods or services, you are also going to need to contact those individuals or businesses (their name is on the check) and alert them to the fraud, and allow them to contact their banks, lest you will be assessed fees by them for insufficient funds if your bank later takes the money back as a result of the investigation. </p>\n\n<p>Also, in the event the checks were recreated rather than stolen, or if you don't know exactly how many were stolen, you are going to need to close your account while you wait for the investigation to bear fruit (hopefully), and open a new account, as you now have a duty to account for any and all checks stolen at that event (so, if you know a book is out there and 10 checks have cleared you know there are 15 remaining that the bank is not going to cover if you don't take steps to protect yourself). One would think they've asked you this and have already done something to prevent further checks from coming in, but if not, you need to get on it. Also, you may want to hire your own investigator if you have the funds to do so. While stolen cards are often strangers, stolen checks (unless it's one washed check) is nearly always someone you know.</p>\n",
"score": 7
},
{
"answer_id": 4736,
"body": "<p>You will need to identify a defendant in order to bring any claim.</p>\n\n<p>This isn't something you have a lot of control over - only law enforcement can require the production of surveillance records in the absence of court proceedings (you would otherwise subpoena such records from the bank). You'd need to contact the police in order to have them investigate, and until they identify a suspect, there's no way for you to proceed.</p>\n\n<p>Forgery - <a href=\"http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=470-483.5\" rel=\"nofollow\">California Penal Code 470</a> makes it a crime to commit fraud by forging a signature.</p>\n\n<p>You therefore wouldn't be bringing a claim against the defendant - the State would. I also am not aware of statutory restitution requirements for forgery in California, so you would need to rely on restitution ordered in a sentence passed upon a favorable verdict.</p>\n\n<p>Unfortunately, as far as I know, there's no statutory time limit on the production of records, however intentional and excessive delays may leave the subject of the warrant or subpoena open to action for obstruction.</p>\n",
"score": 2
},
{
"answer_id": 94658,
"body": "<p><strong>Disclaimer:</strong> This depends on the jurisdiction, but probably holds in many places. I am not a lawyer licensed to practice in your jurisdiction, or a lawyer. This is just information I picked up here and there, mostly in England.</p>\n<p><strong>A bank account is a debt</strong> - you have loaned the bank money, repayable on your demand.</p>\n<p>Your account balance is not "your money" - it is an <em>accounting of how much they owe you</em> (or if you have an overdraft, how much you owe them).</p>\n<p>It is a debt payable on demand, and a cheque is such a demand.</p>\n<p>However a <strong>fraudulent</strong> cheque is not a valid demand, and if the bank pays on a fraudulent cheque, this does not reduce their debt to you.</p>\n<blockquote>\n<p>"So somebody pretended they were me, asked for money, and you believed them. How is that my problem?"</p>\n</blockquote>\n<p>It does not matter:</p>\n<ul>\n<li>how good the forgery was,</li>\n<li>how much care they took</li>\n<li>whether they were negligent or not</li>\n</ul>\n<p>It <strong>only</strong> matters if it was a <strong>valid demand</strong> by you, someone authorized by you, or someone you've agreed in your contract that they may take to be authorized.</p>\n<p>(This means for example that if you give your credit card to someone, e.g. a child or spouse, then you have authorized them to spend your money, and that's your responsibility; but if your credit card is stolen, then it is not your responsibility.)</p>\n<p><strong>Who decides</strong></p>\n<p>The court decides, if it goes to court.</p>\n<p>Once you have made a valid demand for full payment, you can sue them for the full amount you are owed.</p>\n<p>Generally you must say something like this:</p>\n<ul>\n<li><strong>What you want:</strong> I want such-and-such amount of money</li>\n<li><strong>Why you are entitled to it:</strong> Because that is what the bank owes me, and their accounting is wrong, because that cheque was a forgery.</li>\n<li><strong>What you want the court to do:</strong> And I want the court to order them to pay me.</li>\n</ul>\n<p>You will have to produce evidence. This might be:</p>\n<ul>\n<li>Your cheque stubs, proving that you didn't write the cheque</li>\n<li>Your testimony on oath, swearing that you didn't write or authorize the payment.</li>\n<li>Proof you were not in the place where the payment was made.</li>\n<li>Some other form of evidence.</li>\n</ul>\n<p>Once you have provided <em>some</em> evidence (even if it is only your sworn testimony) it is up to the bank to provide their evidence.</p>\n<p>The court will decide who they believe, and you will either get your money, or not.</p>\n<p><strong>What to do</strong></p>\n<p>Probably best to let the bank sort it out. This sort of thing happens a lot, and most big banks are pretty good at sorting it out.</p>\n<p>That's good if this is a genuine mistake by the bank (they paid when they shouldn't have), but if you are trying to defraud the bank, then it's bad for you, because they also deal with that a lot.</p>\n<p>It will probably take longer than you would like, but if you keep hassling them then they will probably either get to the bottom of it, or give up and reimburse you.</p>\n<p>If you suffer any consequential losses, such as from being unable to pay bills and getting penalties, they may well agree to pay those too, provided you are polite but insistent.</p>\n<p>But be careful:</p>\n<ul>\n<li>If it turns out that it was your son or daughter, you may be bringing the criminal law down on them. That's probably not what you want.</li>\n<li>So <strong>first be absolutely sure that you don't know who it was</strong>, and that you are happy to do that.</li>\n</ul>\n",
"score": 0
}
] | 4,701 | CC BY-SA 3.0 | [
"california",
"finance",
"fraud",
"banking"
] | 8 | https://law.stackexchange.com/questions/4701/someone-withdrew-money-from-my-bank-account-what-are-my-rights |
What are the legal ramifications for someone whose birth was concealed? | <p>I understand that in the US, concealment of birth is against the law. I looked it up, and apparently it is a felony in most US states. (FYI I'm asking because it pertains to a work of fiction I'm writing before anyone gets the wrong idea about me!) Here's the question...</p>
<p>What are the legal ramifications towards an individual whose parents are deceased <em>but</em> they committed concealment of birth when the individual was born. As a result, this individual has no SSN and might not legally exist. Could they be in legal jeopardy in any way? Can the US or their state of birth (lets say WV) compel them to register in some way?</p>
| [
{
"answer_id": 94607,
"body": "<p>Does this person have witnesses to his existence? Particularly before the age of five?</p>\n<p>Under 8 U.S. Code § 1401, native-born citizens include</p>\n<blockquote>\n<p>a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;</p>\n</blockquote>\n<p>If he appears out of nowhere, he is likely to be suspect of illegal immigration. Age may be a factor there, too.</p>\n",
"score": 19
},
{
"answer_id": 94610,
"body": "<blockquote>\n<p>As a result, this individual has no SSN and might not legally exist.</p>\n</blockquote>\n<p>A living person exists. It is not necessary to be registered anywhere to exist.</p>\n<blockquote>\n<p>Could they be in legal jeopardy in any way?</p>\n</blockquote>\n<p>They won't be able to work until they register with the Social Security Administration. As suggested in another answer, they may have difficulty establishing eligibility for a Social Security number.</p>\n<blockquote>\n<p>Can the US or their state of birth (lets say WV) compel them to register in some way?</p>\n</blockquote>\n<p>The US could, as could the state of residence, for example by requiring the person to explain how he or she is supporting him or herself. Under the given facts the state of birth is unknown. (If the person's place of birth is somehow determined to have been in one of the states then the person was born in the United States and the person is a US citizen, so the other problems disappear.)</p>\n",
"score": 5
},
{
"answer_id": 94624,
"body": "<p>It's difficult to document that a law requiring a person who cannot obtain proof of birth in the US to register his/her birth does not exist, since there is such a vast volume of state and federal law. But a document from <a href=\"https://www.uscis.gov/sites/default/files/document/guides/A4en.pdf\" rel=\"nofollow noreferrer\">USCIS</a> states</p>\n<blockquote>\n<p>If you were born in the United States, you do not need to apply to\nUSCIS for any evidence of citizenship. Your birth certificate issued\nwhere you were born is proof of your citizenship.</p>\n</blockquote>\n<p>There is a footnote explaining this does necessarily apply to children of foreign diplomats.</p>\n<p>So if there is a law, it would have to be a West Virginia law, and I am not aware of such a law. If such a law does exist, and violation of the law is a crime, then the State of West Virginia would have to prove all the elements of the crime beyond a reasonable doubt.</p>\n<p>The first element would be that the person was born in West Virginia. If proof beyond a reasonable doubt exists, and is in the possession of the prosecutor, no doubt the person's lawyer could find a way to compel the state to perform the necessary registration on the basis of the evidence the state already possesses, and the case becomes moot.</p>\n<p>Another element that is likely to be in the law is that the person knows he/she was born in West Virginia. But if there isn't enough evidence to complete the registration process, the person could argue that he/she does not know if he/she were born in West Virginia.</p>\n<p>If the person works, it is likely the person will appear to violate tax laws, because even if income taxes are withheld from wages, with no SSN to connect the person to the money that was withheld, it will appear the person failed to pay taxes.</p>\n<p>In response to a comment by ohwilleke I will show why it was never the responsibility of the person who was born to file a birth certificate. The <a href=\"http://www.wvlegislature.gov/wvcode/chapterentire.cfm?chap=16&art=5&section=10\" rel=\"nofollow noreferrer\">relevant WV law states</a></p>\n<blockquote>\n<p>(a) A certificate of birth for each live birth which occurs in this\nstate shall be filed with the section of vital statistics...</p>\n<p>[if the birth is outside an institution the birth shall be reported\nby]</p>\n<p>(1) The physician in attendance at or immediately after the birth;</p>\n<p>(2) Any other person in attendance at or immediately after the birth;</p>\n<p>(3) The father or the mother, or, in the absence of the father and the\ninability of the mother, the person in charge of the premises where\nthe birth occurred; or</p>\n<p>(4) Any other person qualified by the department by rule to establish\nthe facts of birth.</p>\n</blockquote>\n<p>I think it would be absurd to interpret the newborn as being in attendance at his/her own birth, and equally absurd to consider him/her to be qualified to establish the facts of birth.</p>\n\n",
"score": 1
}
] | 94,604 | CC BY-SA 4.0 | [
"united-states",
"birth-certificate"
] | 11 | https://law.stackexchange.com/questions/94604/what-are-the-legal-ramifications-for-someone-whose-birth-was-concealed |
In what forum would Iran sue Pakistan in for damages? | <p>According to reports, Iran may claim $18 billion in damages from Pakistan for an unfinished pipeline if Pakistan does not complete its part of it as agreed. What forum would such a claim take place in?</p>
| [
{
"answer_id": 94651,
"body": "<p><a href=\"https://financialtribune.com/articles/energy/117363/tehran-to-take-islamabad-to-court-over-breach-of-gas-pipeline-deal\" rel=\"nofollow noreferrer\">According to reports</a>, one potential forum is the <a href=\"https://iccwbo.org/dispute-resolution/dispute-resolution-services/icc-international-court-of-arbitration/\" rel=\"nofollow noreferrer\">International Court of Arbitration</a>. All reports I see say that the agreement specifies that the forum will be an arbitration forum. Whether it can be <em>any</em> arbitration forum or if it must be the ICC, or can be selected from a list, depends on the specific wording of the Gas Sales and Purchase Agreement of 2009, which I have not been able to find.</p>\n",
"score": 4
}
] | 94,649 | CC BY-SA 4.0 | [
"international",
"jurisdiction"
] | 2 | https://law.stackexchange.com/questions/94649/in-what-forum-would-iran-sue-pakistan-in-for-damages |
Where when and how did the idea of “reasonableness” originate? | <p>What period did it come into regular legal usage?</p>
<p>Did it originate as a judicial device first or did it begin as something that would be explicitly coded into statutes?</p>
| [
{
"answer_id": 94120,
"body": "<p>See Harold J. Berman, "The Origins of Historical Jurisprudence: Coke, Selden, Hale" (1994) 103 Yale Law Journal 1651, p. 1691, n. 101:</p>\n<blockquote>\n<p>the translation of "reason" into "reasonableness" and the exaltation of "common sense" are English developments of the seventeenth century, to which Coke contributed.</p>\n</blockquote>\n<p>At p. 1718-19:</p>\n<blockquote>\n<p>Coke had said it is the nature of law to be reasonable, and that the test of reasonableness is its ability to withstand the test of time.</p>\n</blockquote>\n<p>See also S.E. Thorne, "Dr. Bonham's Case" (1938) 54 Law Quarterly Review 543, p. 543:</p>\n<blockquote>\n<p>To students of the origins of American constitutional law and theory no judicial utterance of Sir Edward Coke can surpass in interest and importance his so-called <em>dictum</em> in <a href=\"https://en.wikipedia.org/wiki/Dr._Bonham%27s_Case\" rel=\"nofollow noreferrer\">Dr. Bonham's case</a>, decided in the Court of Common Pleas in 1610. It is widely regarded as foreshadowing not merely the power which American courts to-day exercise in the disallowance of statutes on the ground of their conflict with the constitution, but also that very test of 'reasonableness' which is the ultimate flowing of that power.</p>\n</blockquote>\n<p>This concept as a ground of review arose in the context of "conflict between Parliament and the Crown over the nature and limits of prerogative and the common law" (Michael Foran, "The Constitutional Foundations of Reasonableness Review: Artificial Reason and Wrongful Discrimination" (2022) 26:3 Edinburgh Law Review 295, p. 299).</p>\n<p>In one case, the <a href=\"http://www.bailii.org/ew/cases/EWHC/KB/1607/J23.html\" rel=\"nofollow noreferrer\"><em>Case of Prohibitions</em> (1607) 12 Co. Rep. 63, 77 E.R. 1342 (K.B.)</a>, Coke repealed a judgment of King James I, on the basis that the judgment was not grounded in the common law. Coke said: "causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the <em>artificial reason and judgment of law</em>."</p>\n<p>This is in contrast to a view that Crown action would not be substantively reviewable. By defining reasonableness as something that can only be determined through the wisdom of judges, Coke was broadening the judicial power.</p>\n",
"score": 5
},
{
"answer_id": 94131,
"body": "<p>The <a href=\"https://en.wikipedia.org/wiki/Reasonable_person\" rel=\"nofollow noreferrer\">"reasonable man" standard in the common law of torts</a> is sometimes attributed to the English case of <em><a href=\"https://en.wikipedia.org/wiki/Vaughan_v_Menlove\" rel=\"nofollow noreferrer\">Vaughan v. Menlove</a></em> (1837).</p>\n",
"score": 2
}
] | 94,119 | CC BY-SA 4.0 | [
"legal-terms",
"legal-history"
] | 2 | https://law.stackexchange.com/questions/94119/where-when-and-how-did-the-idea-of-reasonableness-originate |
When did indictments stop saying people were "moved and seduced by the instigation of the Devil"? | <p>Criminal indictments used to use much more detailed and flowery language than they do now. I was surprised to learn, while looking at some early U.S. documents, that they had retained a feature of indictments from English common law. For some crimes, the accused was said to have done the deeds</p>
<blockquote>
<p>not having the fear of God before his eyes but being moved and seduced by the instigation of the Devil</p>
</blockquote>
<p>For example, this was said of Aaron Burr in three documents from New Jersey, New York, and the Federal courts:</p>
<ol>
<li><a href="https://founders.archives.gov/documents/Hamilton/01-26-02-0001-0281" rel="noreferrer">NJ indictment for the murder of Alexander Hamilton, 23 October 1804</a>: "The Jurors [...] upon their oath present that Aaron Burr late of the Township of Bergen in the County of Bergen esquire not having the fear of God before his eyes but being moved and seduced by the instigation of the Devil on the eleventh day of July in the year of our Lord one thousand eight hundred and four at the Township of Bergen in the County of Bergen aforesaid and within the jurisdiction of this Court, feloniously Wilfully and of his malice aforethought did make an assault upon Alexander Hamilton in the peace of God and of the said State then and there being."</li>
<li><a href="https://founders.archives.gov/documents/Hamilton/01-26-02-0001-0270" rel="noreferrer">NY coroner's inquest for the same, 2 August 1804</a>: "Aaron Burr, late of the Eighth Ward of the Said City in the Said County Esquire and Vice President of the United States, not having the fear of God before his eyes, but being moved and seduced by the Instigation of the devil [...]"</li>
<li><a href="https://www.famous-trials.com/burr/159-indictment" rel="noreferrer">Federal indictment for treason, etc., August 1807</a>: "Aaron Burr, late of the city of New York, and state of New York, attorney at law, being an inhabitant of, and residing within the United States, and under the protection of the laws of the United States, and owing allegiance and fidelity to the same United States, not having the fear of God before his eyes, nor weighing the duty of his said allegiance, but being moved and seduced by the instigation of the devil, wickedly devising and intending the peace and tranquility of the same United States to disturb and to stir, move, and excite insurrection, rebellion and war against the said United States [...]"</li>
</ol>
<p>I believe that criminal indictments do not currently contain this language, but a web search showed several other American examples from later in the nineteenth century. Evidently this stopped at some point, but when and why? (For England and Wales, this would have happened <a href="https://www.legislation.gov.uk/ukpga/Geo5/5-6/90/enacted" rel="noreferrer">no later than 1915</a>, and indictments today are quite straightforward in content.)</p>
<p>In particular, I wonder if changing feelings about the establishment of religion might have led to removing devil-references. The <a href="https://en.wikisource.org/wiki/New_York_Constitution_of_1777" rel="noreferrer">NY</a> and <a href="https://www.state.nj.us/state/archives/docconst76.html" rel="noreferrer">NJ</a> constitutions both had language around religious freedom and lack of a state religion, and of course the Federal constitution has its First Amendment - but perhaps people originally saw these references to God and the Devil as being basically neutral, and later changed their minds.</p>
<p>Alternatively, perhaps the language was dropped because it was unnecessary detail, or in some way detracted from the accused being culpable (i.e. why are we going to punish you if the Devil made you do it?).</p>
<p>I'm interested in any answers that are backed by evidence about when the changes were made, and what legal theories motivated them.</p>
| [
{
"answer_id": 94646,
"body": "<p>It appears that:</p>\n<ul>\n<li>This language was seen as a bit ridiculous and unnecessary even at the time, and more so as the 19th century progressed.</li>\n<li>The main objection is that the language is redundant or merely decorative. There was a general trend to make indictments describe the alleged offences in more ordinary language, with use of precise legal terms when needed. In particular, indictments were made to match the legal elements of the offence that were required to be proved, rather than being polemics about the wickedness of the offender.</li>\n<li>Different jurisdictions abandoned it at different rates, depending on local circumstances. There does not appear to be any particular campaign about it, and since the language was seen as <em>unnecessary</em> rather than <em>wrong</em>, some prosecutors continued to use it without problems.</li>\n<li>Religious freedom, or establishment of religion, has nothing do to with it. Much of the common-law understanding was driven from England where the constitutional settlement was completely different. Despite the mention of God and the Devil, this was a completely stock phrase that was devoid of any real religious content.</li>\n</ul>\n<p>My main sources here are 19th century legal textbooks, which contained some citations to case law. There does not seem to have been very much statutory activity.</p>\n<p>Quoting from Joel Prentiss Bishop's <em>New criminal procedure; or, New commentaries on the law of pleading and evidence and the practice in criminal cases</em> (Chicago: T. H. Flood, 4th ed., 1895), <a href=\"https://babel.hathitrust.org/cgi/pt?id=mdp.35112104125069&seq=346\" rel=\"nofollow noreferrer\">section 501 in volume 1</a>:</p>\n<blockquote>\n<p>It was formerly the style, nor at the present day is it quite abolished, to charge, especially in treason and felony, that the defendant did it "not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil." Both in reason and by all authority, these words are not necessary. Their original purpose seems to have been to make the accusation correspond in form to the fact; for, as Cotton Mather said, speaking of what he and others of this time believed: "When men do commit a crime for which they are to be indicted, they are usually moved by the instigation of the devil." Yet even in this view, they could never have been required; because in law, no "instigation" to crime justifies the doer, so that the devil's instigation is wholly <em>immaterial</em>.</p>\n</blockquote>\n<p>Among other sources he cites Joseph Chitty's <em>A practical treatise on the criminal law</em>, which in an early American edition (Philadelphia: Isaac Riley, 1819) confirms <a href=\"https://babel.hathitrust.org/cgi/pt?id=chi.37603137&seq=217\" rel=\"nofollow noreferrer\">at 240</a> that these words concerning the Devil "though usual, are not necessary to be inserted", elaborating that</p>\n<blockquote>\n<p>where the common law, or a statute, forbids the doing of a thing, the doing it wilfully is indictable, though without any corrupt motive, and consequently it need not in any case be averred.</p>\n</blockquote>\n<p>There are several other textbooks that discuss related but less colorful terms, such as "wilfully" or "wickedly", using essentially the same argument for why they are unnecessary. The idea is that when somebody is being tried for murder, the prosecutor is trying to show that they killed someone on purpose - not that they were wicked while doing it, which is implicit, or that the Devil was metaphysically responsible, which is irrelevant.</p>\n<p>Many of these books seem to copy the language from Joseph Burn's <em>Justice of the Peace and Parish Officer</em> at <a href=\"https://books.google.co.uk/books?id=sI4DAAAAQAAJ&lpg=PA328&ots=UwmVKb2q0K&pg=PA349#v=onepage&q&f=false\" rel=\"nofollow noreferrer\">section 11 of the entry on "Indictment"</a> (references omitted) in volume 3 (London: 26th ed., 1831):</p>\n<blockquote>\n<p>The words "<em>wickedly, maliciously, of his own wicked and corrupt mind, being a person of evil disposition, &c.</em>" are, in general, mere matter of aggravation and not material. But where an act must be done with a particular <em>intent</em>, in order to render it criminal, an evil intention must be averred upon the record; and, in such case, the intent must be proved as laid or the variance will be fatal.</p>\n</blockquote>\n<p>From the general tenor of these books, we can see that there were great difficulties with indictments that did not match the legal requirements of the offences to be tried: there are several accounts of defendants who were able to defeat the charges because of drafting problems. Additionally, the idea of a right to a fair trial (whether seen as a matter of natural justice, or founded in positive law such as the Sixth Amendment right "to be informed of the nature and cause of the accusation") added pressure on prosecutors to express the charges with precision and clarity. The textbooks are overall quite scathing about the inclusion of decorative phrases.</p>\n<p>In case law, an American case that is directly on point is from Massachusetts, <em>Commonwealth v Murphy</em> 11 Cush. 472 (1853), which apparently confirms the devil-reference as unnecessary, though I haven't located the primary source. For the general idea of these references being not essential, the textbooks mainly cite an English case from the Court of King's Bench, <a href=\"https://www.google.co.uk/books/edition/The_English_Reports_King_s_Bench_Divisio/D5VDAQAAMAAJ?hl=en&gbpv=1&pg=PA1365-IA34&printsec=frontcover\" rel=\"nofollow noreferrer\"><em>R v Philipps</em> (1805) 6 East 472</a>. The Lord Chief Justice, <a href=\"https://en.wikipedia.org/wiki/Edward_Law,_1st_Baron_Ellenborough\" rel=\"nofollow noreferrer\">Lord Ellenborough</a>, considered an indictment alleging among other things that Philipps "wickedly and maliciously did endeavour to stir up, provoke, and excite [someone else] to challenge the defendant to fight a duel with him". Citing <a href=\"https://en.wikipedia.org/wiki/William_Murray,_1st_Earl_of_Mansfield\" rel=\"nofollow noreferrer\">Lord Mansfield</a> in the seditious libel case of <a href=\"https://books.google.co.uk/books?id=AVcDAAAAQAAJ&vq=formal&pg=PA2666#v=snippet&f=false\" rel=\"nofollow noreferrer\"><em>R v Woodfall</em> (1770) 5 Burr 2667</a>, he said that terms of opprobrium like "wickedly" were "mere formal inferences of law" and did not contribute anything material to the description of the offence and any required element of intent. The defendant's counsel in <em>Woodfall</em> had objected to what the judge described as "the usual epithets", and the judge told the jury to ignore them but concentrate on the alleged facts: they were not being asked to determine whether the publication was sufficiently odious to deserve the colourful language used in the indictment. By extension, juries are not asked to make determinations about the theological circumstances surrounding sinful acts and the agency of the devil.</p>\n<p>The 1805 case, coincidentally about duelling, is from after the Burr-Hamilton duel and it evidently took a while for this logic to penetrate the legal community in general (Bishop in 1895 calling the devil phrase "[not] quite abolished"). Notably, while the case does not rest on any specifics of the American legal or cultural order, it does appear to have been influential on American jurists who accepted it as a statement of the common-law position. The American writers do not raise any objections to the phrase on grounds relating to religion, and universally treat it as "stock" language.</p>\n",
"score": 2
}
] | 94,553 | CC BY-SA 4.0 | [
"united-states",
"criminal-law",
"legal-history",
"indictment"
] | 9 | https://law.stackexchange.com/questions/94553/when-did-indictments-stop-saying-people-were-moved-and-seduced-by-the-instigati |
Is a "login timestamp" considered as personal data according to GDPR? | <p>If software is saving the timestamp of the last login <strong>of a user</strong>, would that timestamp itself be considered personal data by GDPR?</p>
| [
{
"answer_id": 94640,
"body": "<h2>You ask the wrong question first</h2>\n<p>What do you save in the database? Let's take an example of a door:</p>\n<ul>\n<li>Do you have a legitimate interest to know/save who passed this door?</li>\n<li>Do you have a legitimate interest to know/save when the door was opened?</li>\n<li>Do you have a legitimate interest to know/save both?</li>\n</ul>\n<p>Only <strong>now</strong>, once you have established that you have any interest in the door passing at all, you have to start to figure out if it is personal data - if you have no interest in saving it in the first place, there's little reason to figure that out.</p>\n<p>Let's say you have a legitimate interest to save both, because behind the door is the server room, and physical access is limited to authorized personnel and you want to know when who was in there for figuring out if or who was responsible for changes.</p>\n<p>Now, which of the data is Personal Identifiable Data for you?</p>\n<ul>\n<li>You know where the door is. That's in itself Location Data, but if you don't know who or when the door was opened, then it is not PII.\n<ul>\n<li>It becomes PII if you connect it with a person.</li>\n</ul>\n</li>\n<li>A pin-code used by the whole department is not <em>always</em> PII, but can become PII in a very small to medium-sized department.\n<ul>\n<li>e.g. one of all the 20 000 employees in a facility is just saying "an employee" and is not identifiable, but one of 20 is much more likely is, as you can correlate that with <em>other</em> data to possibly identify a smaller group.</li>\n</ul>\n</li>\n<li>The Employee ID or Card would be most definitely PII if saved.\n<ul>\n<li>Similar, if the login date is saved to the account list on some server.</li>\n</ul>\n</li>\n<li>The timestamp on itself is not a PII, if <strong>only</strong> the timestamp is recorded and no other information exists. Like, if the front door only logs "The door was opened/closed" but not who did it, to count customers or schedule maintenance.\n<ul>\n<li>However, together with other information - such as the door being access restricted and the paystubs from timekeeping when all those access carriers were in the building and having a tight access restriction to a decently small group (see above) - that can quickly become PII.</li>\n</ul>\n</li>\n</ul>\n<p>It is enough that the information from different information sources compiled can become enough to say "it was one of these few people", as that is enough to make it identifiable under GDPR Art.4. Once you know it is PII, you need to handle it as PII. As such, you need consent or a legitimate interest. That's why I pulled the <em>other</em> test before figuring out if it is indeed PII: Ic you have already figured out that this data is required for some legitimate reason, such as that you need to know the door operation log to ensure some <em>other</em> compliance, then you can proceed through the other parts of the GDPR compliance.</p>\n<p>Now, OP asked about a login timestamp. That is <em>by necessity</em> bound to an identifier, such as a login name. As such, it is the Keycard or Employee ID example and automatically PII because it is tied to a PII.</p>\n<h3>Definitions</h3>\n<p>The <a href=\"https://gdpr.eu/article-4-definitions/\" rel=\"noreferrer\">GDPR defines PII in Article 4</a></p>\n<blockquote>\n<p>‘personal data’ means <strong>any information</strong> relating to an identified or <strong>identifiable natural person</strong> (‘data subject’); an identifiable natural person is <strong>one who can be identified, directly or indirectly</strong>, in particular by reference to an identifier such as a name, <em>an identification number</em>, <strong>location data</strong>, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;</p>\n</blockquote>\n<p>The <a href=\"https://www.dol.gov/general/ppii#:%7E:text=Further%2C%20PII%20is%20defined%20as,with%20other%20data%20elements%2C%20i.e.%2C\" rel=\"noreferrer\">US Department of labor</a> defines quite similar</p>\n<blockquote>\n<p>PII is defined as information:</p>\n<p>(i) that directly identifies an individual (e.g., name, address, social security number or other identifying number or code, telephone number, email address, etc.) or</p>\n<p>(ii) by which an agency intends to identify specific individuals in conjunction with other data elements, i.e., indirect identification.</p>\n</blockquote>\n",
"score": 27
},
{
"answer_id": 94639,
"body": "<p>The timestamp being among the data related to "an identified or identifiable natural person (‘data subject’)", the user, yes it is personal data.</p>\n<p><a href=\"https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016R0679&from=EN#d1e1489-1-1\" rel=\"noreferrer\">GDPR Article 4(1)</a>:</p>\n<blockquote>\n<p>‘personal data’ means any information relating to an identified or\nidentifiable natural person (‘data subject’); an identifiable natural\nperson is one who can be identified, directly or indirectly, in\nparticular by reference to an identifier such as a name, an\nidentification number, location data, an online identifier or to one\nor more factors specific to the physical, physiological, genetic,\nmental, economic, cultural or social identity of that natural person;</p>\n</blockquote>\n<p><a href=\"https://commission.europa.eu/law/law-topic/data-protection/reform/what-personal-data_en\" rel=\"noreferrer\">What is personal data? - European Commission</a></p>\n<blockquote>\n<p>Personal data is any information that relates to an identified or\nidentifiable living individual. Different pieces of information, which\ncollected together can lead to the identification of a particular\nperson, also constitute personal data.</p>\n<p>Personal data that has been de-identified, encrypted or pseudonymised\nbut can be used to re-identify a person remains personal data and\nfalls within the scope of the GDPR.</p>\n<p>Personal data that has been rendered anonymous in such a way that the\nindividual is not or no longer identifiable is no longer considered\npersonal data. For data to be truly anonymised, the anonymisation must\nbe irreversible. ...</p>\n</blockquote>\n",
"score": 21
}
] | 94,638 | CC BY-SA 4.0 | [
"gdpr",
"privacy",
"software",
"personal-information"
] | 11 | https://law.stackexchange.com/questions/94638/is-a-login-timestamp-considered-as-personal-data-according-to-gdpr |
How far can cooperation between law enforcement and intelligence agencies go? | <p><a href="https://s3.documentcloud.org/documents/1164085/sidtoday-dea-the-other-warfighter.pdf" rel="nofollow noreferrer">https://s3.documentcloud.org/documents/1164085/sidtoday-dea-the-other-warfighter.pdf</a></p>
<p>This is a report explaining that DEA was aided by NSA's surveillance system at the time they were persecuting a wanted criminal Gonzalo Hinojosa while he had been in Panama by using data obtained by NSA's systems. The report suggests this person was very evasive and dangerous perhaps this is why DEA collaborated with NSA.</p>
<p><a href="https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intelligence-laundering" rel="nofollow noreferrer">https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intelligence-laundering</a></p>
<p>Another example of LE and NSA cooperation.</p>
<p>Shouldn't NSA be concerned only about foreing intelligence without doing anything related to LE? If there is a reason for such cooperation to exist, how far can cooperation between a LE organization go with an intelligence agency of the same country? And what type of criminal actions substantiate to do this? Terrorism, child abuse, et cetera.</p>
<p>For example, if FBI wanted to research more about a wanted person inside another country out of their reach, may it use NSA's systems to track down this person's movement with cellular networking? Or spy on his Internet activity with surveillance systems mentioned?</p>
| [
{
"answer_id": 90446,
"body": "<h2>As far as the legal powers of the organisation(s) allow</h2>\n<p>By this, I mean that if what the DEA was doing was allowed under the laws that govern the DEA, and what the NSA was doing was allowed under the laws that govern the NSA, then they can cooperate as much as they want. The could investigate jaywalking together if they wanted (of course, this would have to be jaywalking within Federal jurisdiction).</p>\n<p>Divisions in executive government are practical rather than legal. That is, the executive can carry out "intelligence" and "law enforcement" and as a practical matter, they are carried out by different agencies. However, they are functions of the executive and could be carried out by one mega-agency if they wanted to set things up that way. Indeed, the Department of Homeland Security is such a mega-agency.</p>\n",
"score": 2
},
{
"answer_id": 94644,
"body": "<h2>Intelligence <strong>is</strong> Law Enforcement.</h2>\n<p><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a></p>\n<p><a href=\"https://de.wikipedia.org/wiki/Nachrichtendienste_des_Bundes\" rel=\"nofollow noreferrer\">BND, Verfassungsschutz and MAD and the Landesbehörden für Verfassungsschutz create <strong>19</strong> branches of intelligence organisations</a>. Those are specially classed as <em>Nachrichtendienste</em> in german law, separate from the federal police branches of Bundeskriminalamt (roughly equivalent ot the FBI), the Zollkriminalamt (roughly the customs and border patrol) and other federal police or military.</p>\n<p>There is a special setup, that bans the intelligence agencies from doing policing in many areas, the <a href=\"https://de.wikipedia.org/wiki/Trennungsgebot_zwischen_Polizei_und_Nachrichtendiensten\" rel=\"nofollow noreferrer\">Trennungsgebot</a>.</p>\n<p>However, that does not make them not law enforcement - they enforce <strong>different</strong> laws. The most relevant are the <a href=\"https://de.wikipedia.org/wiki/Bundesamt_f%C3%BCr_Verfassungsschutz#Auftrag\" rel=\"nofollow noreferrer\">Verfassungsschutz</a> (and similarly the 16 separate Landesbehörden für Verfassungsschutz). They are tasked with exclusively:</p>\n<ul>\n<li>investigate threats to the german democracy, such as insurgent groups or terrorist groups inside Germany.\n<ul>\n<li>being part of such a group is a crime.</li>\n</ul>\n</li>\n<li>Finding spies inside Germany.\n<ul>\n<li>spying in Germany is a crime.</li>\n</ul>\n</li>\n<li>Develop guidance documents that govern how to protect state secrets. The same documents are also suggestions for the economy how to protect trade secrets.</li>\n</ul>\n",
"score": 0
}
] | 90,443 | CC BY-SA 4.0 | [
"united-states",
"criminal-law",
"any-jurisdiction",
"surveillance"
] | 3 | https://law.stackexchange.com/questions/90443/how-far-can-cooperation-between-law-enforcement-and-intelligence-agencies-go |
Is there any country in the EU that forbids ritual cattle slaughter? | <p>Is there any country in the EU that forbids ritual cattle slaughter?</p>
<p>If so, where are the halal and kosher certified meats sourced from?</p>
| [
{
"answer_id": 94613,
"body": "<p>Quite the contrary. In most European countries, shechita is - at least under certain conditions - legal.</p>\n<p><a href=\"https://i.stack.imgur.com/UzeDf.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/UzeDf.png\" alt=\"Map of ritual slaughter laws\" /></a></p>\n<p>Only in the blue-marked countries is it generally forbidden; in the green-marked countries prior anaesthesia is required.</p>\n<p>That is, pre-cut stunning is required in Sweden, Belgium and Denmark (and Iceland, Norway and Switzerland, but these are not in the EU). Simultaneous stunning is required in Finland. Post-cut stunning is required in Austria, Slovakia, Lithuania, Estonia and Greece. Only in Slovenia is ritual slaughter banned.</p>\n<p>Map source: <a href=\"https://commons.wikimedia.org/wiki/File:Ritual_slaughter_laws_Europe_map.svg\" rel=\"nofollow noreferrer\">https://commons.wikimedia.org/wiki/File:Ritual_slaughter_laws_Europe_map.svg</a></p>\n",
"score": 20
}
] | 94,612 | CC BY-SA 4.0 | [
"european-union"
] | 6 | https://law.stackexchange.com/questions/94612/is-there-any-country-in-the-eu-that-forbids-ritual-cattle-slaughter |
Does withholding non-medical information affect medical consent? | <p>In an episode of the medical drama 'House', a patient needing a liver transplant is offered a live donation from her girlfriend. During the episode there's a continual argument over the ethics of whether they should tell the donor that the patient was about to break up with her prior to the hospital admission. I am wondering whether the doctor and patient, both strongly believing that the donor would withdraw consent if she knew, would be liable to lawsuit or even committed a crime by hiding this information? Would the doctors be obliged to tell the donor or even be allowed if they wanted to as it is not sensitive medical information?</p>
| [
{
"answer_id": 94566,
"body": "<p>The primary question is whether remaining silent would constitute a breech of medical ethics. The pertinent ethical principle is <a href=\"https://journalofethics.ama-assn.org/article/ama-code-medical-ethics-opinions-organ-transplantation/2012-03\" rel=\"nofollow noreferrer\">AMA Opinion 2.15</a> One of the requirements is that the donor be assigned an advocate team whose interest is the donor, not the patient, and these should generally be distinct individuals in order to avoid conflict of interest. Assuming that the donor's team is aware of this fact, they have a duty to disclose it, since it materially affects the donor's willingness to donate the organ. The ethical opinion does not specifically address "patient breaking up with a directed donor", but there is a general obligation to share information, and it would probably be found to be a breach of medical ethics to suppress relevant non-medical information. The ethics of directed donation from live donors is not well-developed.</p>\n<p>I will mention that</p>\n<blockquote>\n<p>Potential donors must be informed that they may withdraw from donation at any time before undergoing the operation and that, should this occur, the health care team is committed to protect the potential donor from pressures to reveal the reasons for withdrawal. If the potential donor withdraws, the health care team should report simply that the individual was unsuitable for donation. From the outset, all involved parties must agree that the reasons why any potential donor does not donate will remain confidential for the potential donor’s protection. In situations of paired, domino, or chain donation withdrawal must still be permitted. Physicians should make special efforts to present a clear and comprehensive description of the commitment being made by the donor and the implications for other parties to the paired donation during the informed consent process.</p>\n</blockquote>\n<p>Neither team can tell the patient that the reason the girlfriend withdrew was because they ratted him out (anyhow, we can suppose she said something to him on her own).</p>\n<p>The hospital knows this fact, and has both a duty to the patient to solve a medical problem but also to the donor to be sure that the consent is informed. The hospital would be suppressing a fact relevant to the donor's willingness to undergo the operation, which is a breach of duty. This fact is not protected by HIPAA, or any other California statute, so does not supersede the obligation to reveal relevant facts.</p>\n",
"score": 15
}
] | 94,565 | CC BY-SA 4.0 | [
"united-states",
"medical",
"consent",
"law-in-fiction"
] | 11 | https://law.stackexchange.com/questions/94565/does-withholding-non-medical-information-affect-medical-consent |
Is it illegal to hire by age in the US? | <p>Maybe one of the fields that has the most "ageism" is programming and software engineering jobs.</p>
<p>There were multiple times I hear of the CEO or SVP at the final approval stage: "we want to hire a more junior person", and rejected the candidate and the 10 hours of interviews by 6 tech people and 3 manager level people.</p>
<p>Some say, before age 35, a person is most creative and productive, and it is all about productivity.</p>
<p>In reality, when you are 25 or 28, you are more likely to stay up working till 3am, sleep, and wake up at 9am and continue to work. However, most companies claim they want 40 hours per week and work life balance, so they won't burn somebody out in 1.5 years and then have to dump them.</p>
<p>Also, programming and software engineering isn't like painter or poet or novelist. They don't need that much creativity. They are more like engineers building roads or bridges, where experience is important too.</p>
<p>One other reason I can think of is, if the manager is 32, he wouldn't want to hire somebody 38 or 45, because then that person appears more like a manager than he or she is. (and that a 28 year old is more like to listen to the 32, and a 45 year old is probably less likely).</p>
<p>And just because they want to hire somebody 35 or under, isn't it ageism and therefore, discrimination by age, and therefore illegal in the US?</p>
<p>I even talked to a lawyer that says, "if we sue, that means these cases are flying all over the sky" (and therefore it is like people quietly accept them).</p>
<p>It also appears that the CEO or SVP are bold enough to even at the final offer approval stage, say "rejected. We want a more junior person."</p>
| [
{
"answer_id": 94631,
"body": "<blockquote>\n<p>The Age Discrimination in Employment Act of 1967 (ADEA) protects\ncertain applicants and employees 40 years of age and older from\ndiscrimination on the basis of age in hiring, promotion, discharge,\ncompensation, or terms, conditions or privileges of employment.</p>\n</blockquote>\n<ul>\n<li><a href=\"https://www.dol.gov/general/topic/discrimination/agedisc\" rel=\"noreferrer\">U.S. Department of Labor</a>.</li>\n</ul>\n<p>State child labor laws establish minimum ages for certain kinds of work (e.g. working on heavy machinery, or serving alcohol), and age limitations on obtaining commercial driver's licenses and commercial pilot's licenses can as a practical matter impose minimum ages for employment.</p>\n<p>Usually, this is a minimum age for certain jobs between age 12 and 21 depending upon the nature of the work.</p>\n<p>Apart from these limitations, discrimination based upon age in employment is not prohibited in the United States.</p>\n<p>So, for example, if an employer wants to hire 25 years olds rather than 35 year olds, simply because they are younger, this is permitted by law in most or all U.S. states.</p>\n",
"score": 6
},
{
"answer_id": 94635,
"body": "<h2>“A more junior person” is not <em>necessarily</em> age discrimination</h2>\n<p>If I have a position to fill that is suited to a new graduate then the fact that most new graduates are younger than the average workforce is not, of itself, age discrimination. Similarly, if I have a job for a senior person, they are likely to be older than average.</p>\n<p>Age discrimination happens when, all else being equal, age becomes a selection criteria. Of course, all else is very rarely equal, so I can indulge my bias, unconscious or conscious, and rationalise that I’m not.</p>\n<h2>Is age discrimination illegal?</h2>\n<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" aria-label=\"show questions tagged 'australia'\" rel=\"tag\" aria-labelledby=\"tag-australia-tooltip-container\">australia</a></p>\n<p><a href=\"https://humanrights.gov.au/our-work/age-discrimination/about-age-discrimination\" rel=\"nofollow noreferrer\">Yes</a></p>\n<blockquote>\n<p>The Age Discrimination Act 2004 protects individuals from discrimination on the basis of age in employment, education, accommodation and the provision of goods and services.</p>\n</blockquote>\n",
"score": 3
},
{
"answer_id": 94637,
"body": "<p><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a></p>\n<p>Germany has the <a href=\"https://www.gesetze-im-internet.de/agg/\" rel=\"nofollow noreferrer\">AGG</a>. It is based on European guidelines, so while the local laws in each country vary and are named differently, each country in the EU will have a similar law.</p>\n<blockquote>\n<p>Ziel des Gesetzes ist, Benachteiligungen aus Gründen der Rasse oder wegen der ethnischen Herkunft, des Geschlechts, der Religion oder Weltanschauung, einer Behinderung, <strong>des Alters</strong> oder der sexuellen Identität zu verhindern oder zu beseitigen.</p>\n</blockquote>\n<p>Translation:</p>\n<blockquote>\n<p>The aim of the law is to prevent or eliminate discrimination on the grounds of race or ethnic origin, gender, religion or belief, disability, <strong>age</strong> or sexual identity.</p>\n</blockquote>\n<p>The law is obviously more complex than that introductory sentence, but yes, there are laws to prevent discrimination by age <em>alone</em>. And while there are other protective laws taking priority (no, you cannot let your 5 year old work in a coal mine...), it <em>should</em> hinder employers to discriminate based on a number alone.</p>\n<p>Obviously you <em>can</em> discriminate based on other factors. For example you <em>can</em> only employ a person with at least ten years of experience. That would probably prevent any person below 30 to get that job, assuming it needs an education first. The government itself does it, allowing anyone to drive motorcycles at the age of 18, but restricting certain types to having 3 years of prior experience. So if you don't own your private racetrack where you piloted one without a license but publicly documented, you will only get a license for those specific types at 21, because you can only start accumulating that experience once you are 18.</p>\n<p>You can also (and the government is the biggest offender here) hire only people with a specific education. For example many government jobs "require" a BSc. But that qualification was only introduced in Germany in 2007. If you had the equivalent of a BSc from lets say 2003, you are out of luck. So any government job will either hire ridiculously overqualified people (the equivalent of an MSc from before is still accepted) or hire only people born after 1989.</p>\n<p>What you mentioned, "junior" vs "senior" has nothing to do with age. Those are experience indicators. A really good developer might be evaluated as "senior" at 30, having had 5-10 years of experience, learning a lot. And I have personally seen 55 year olds that I can only call "junior", because they did not really learn a lot in their 30 years on the job and still repeat mistakes I would expect from a fresh graduate.</p>\n<p>So <em>"I want someone younger"</em> is illegal discrimination.</p>\n<p><em>"I want someone less experienced"</em> is stupid, but legal.</p>\n<p>But <em>"I want someone cheaper, even if that means they are less experienced"</em> is a perfectly legal business decision, and <em>exactly</em> what a CEO is hired to decide. Whether it is the right decision for that company at that time is something we cannot attest to, but it is always a legal and sometimes even correct decision.</p>\n",
"score": 3
}
] | 94,628 | CC BY-SA 4.0 | [
"united-states",
"discrimination",
"age"
] | 0 | https://law.stackexchange.com/questions/94628/is-it-illegal-to-hire-by-age-in-the-us |
Was this a case of negligent homicide, and have any other offences been committed here? | <p><em>Disclaimer: I do not aim to take a position on the ethics of this situation with this question. This question, and all details of the hypothetical case at hand, merely arose from a discussion I recently had, and the law surrounding it intrigued me.</em></p>
<p><strong>Facts of this hypothetical case</strong></p>
<p>Joanne is the mother of Jordan, who is fourteen years old. She is a single mother after she left her ex-boyfriend, because he abused her. She's a manager at her local supermarket. She is also a content creator on the platform OnlyFans, where she makes large sums of money posting explicit content of herself. Jordan was unaware, until a certain point, that her mother had an OnlyFans account.</p>
<p>One day, at school, Jordan's peers reveal to him, in brutally humiliating fashion, that they have discovered his mother's OnlyFans account. Not only that, but an unknown source has leaked some of the content she uploads there. This leads to intense bullying. For a fortnight, Jordan is too embarrassed to speak about it to anyone. However, he eventually opens up to his mother about the bullying, and that it has been caused by her content on OnlyFans. He pleads with her to, at the least, engage in what he considers damage control, and delete the account, and that the extra money isn't a necessity. Despite this, Joanne refuses and continues to upload and sell content on OnlyFans.</p>
<p>The onslaught of teasing and bullying against Jordan continues. After around a month, he musters the courage to discuss his plight with his teachers. Much to his disbelief and frustration, the teachers say that, while they have noticed ‘unusual’ behaviour towards him, in class, for a while now, and while that behaviour may have indicia of bullying, they don't have enough evidence to take any action that would make a difference. In fact, they find the entire ordeal incredibly awkward themselves (though this they do not explicitly mention).</p>
<p>Around a month and a half have elapsed since the first instance of bullying, and the bullying has not ceased. Jordan contemplates moving schools, but he convinces himself that it's futile, because, to him, everyone around his age in his town knows about his mother's OnlyFans account. Ultimately, after an acrimonious argument with his mother, in which he pleads one more time for her to delete her OnlyFans account, and she refuses, Jordan takes his own life.</p>
<p><strong>Questions of law</strong></p>
<ol>
<li><p>In England and Wales, could Joanne be found guilty of gross-negligence manslaughter?</p>
</li>
<li><p>Does any American state have a statute under which Joanne would be liable for her son's death?</p>
</li>
<li><p>In any jurisdiction, could anyone but Joanne, in light of the aforementioned circumstances, face liability for Jordan's death?</p>
</li>
</ol>
<p>Thanks in advance for any responses, and I apologise in advance if you find either the hypothetical or the questions asinine.</p>
| [
{
"answer_id": 94625,
"body": "<blockquote>\n<p>Does any American state have a statute under which Joanne would be\nliable for her son's death?</p>\n</blockquote>\n<p>Probably not. None of the mother's conduct seems like a basis for a homicide prosecution.</p>\n<p>Suicide is only prosecuted, in states that allow it to be prosecuted at all, for conduct with a calculated purpose to cause a suicide, or encouragement of someone to commit suicide. These facts don't show that. There is no intent to cause suicide and there is no encouragement of the son to commit suicide by on the mother.</p>\n<p>A survey of selected laws on point by the Connecticut Legislative Research Service can be found <a href=\"https://www.cga.ct.gov/2020/rpt/pdf/2020-R-0197.pdf\" rel=\"nofollow noreferrer\">here</a>.</p>\n<p>The case law and related legal theory is reviewed and analyzed in <a href=\"https://www.law.georgetown.edu/american-criminal-law-review/wp-content/uploads/sites/15/2019/01/56-1-The-Puzzle-of-Inciting-Suicide.pdf\" rel=\"nofollow noreferrer\">this law review article</a> with the following abstract:</p>\n<blockquote>\n<p>In 2017, a Massachusetts court convicted Michelle Carter of\nmanslaughter for encouraging the suicide of Conrad Roy by text\nmessage, but imposed a sentence of only fifteen months. The conviction\nwas unprecedented in imposing homicide liability for verbal\nencouragement of apparently voluntary suicide. Yet if Carter killed,\nher purpose that Roy die arguably merited liability for murder and a\nmuch longer sentence. This Article argues that our ambivalence about\nwhether and how much to punish Carter reflects suicide’s dual\ncharacter as both a harm to be prevented and a choice to be respected.\nAs such, the Carter case requires us to choose between competing\nconceptions of criminal law, one utilitarian and one libertarian. A\nutilitarian criminal law seeks to punish inciting suicide to reduce\nharm. A libertarian criminal law, on the other hand, justifies\nvoluntary suicide as an exercise of liberty, and incitement of suicide\nas valuable speech. Utilitarian values are implicit in the\nforeseeability standards prevailing in the law of causation, but\nlibertarian values are implicit in the reluctance of prosecutors to\nseek, and legislatures to define, homicide liability for assisting\nsuicide. The prevalence of statutes punishing assisting—but not\nencouraging—suicide as a nonhomicide offense reflects a compromise\nbetween these values. These statutes are best interpreted as imposing\naccomplice liability for conduct left unpunished for two antithetical\nreasons: it is justified in so far as the suicide is autonomous and\nexcused in so far as the suicide is involuntary. This explains why\naiding suicide is punished, but less severely than homicide. Yet even\nthese statutes would not punish Carter’s conduct of encouragement\nalone. Her conviction although seemingly required by prevailing\ncausation doctrine, is unprecedented.</p>\n</blockquote>\n<p>Guyora Binder and Luis Chiesa, "The Puzzle of Inciting Suicide" 56 American Criminal Law Review 65 (2019).</p>\n<blockquote>\n<p>In any jurisdiction, could anyone but Joanne, in light of the\naforementioned circumstances, face liability for Jordan's death?</p>\n</blockquote>\n<p>Maybe the bullies could be prosecuted for homicide or some lesser charge like harassment intended to provoke a suicide or something like that. More facts would have to be developed on that point.</p>\n<p>Maybe teachers have civil liability for negligence, but not criminal liability for not intervening since they didn't intend to cause or encourage the suicide.</p>\n",
"score": 3
},
{
"answer_id": 94626,
"body": "<h2>On the facts as presented, there <em>might</em> be some criminality here</h2>\n<p><strong>But it all depends on facts not stated</strong></p>\n<p><a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged 'new-south-wales'\" aria-label=\"show questions tagged 'new-south-wales'\" rel=\"tag\" aria-labelledby=\"tag-new-south-wales-tooltip-container\">new-south-wales</a></p>\n<h2>The son</h2>\n<p>Suicide is no longer a crime in NSW.</p>\n<h2>The mother</h2>\n<p>I can see no criminality here. It is an unfortunate fact that children take their own lives, and sometimes this happens after arguments with their parents: that doesn't make the parent criminally responsible.</p>\n<h2>The bullies</h2>\n<p>Some forms of bullying cross the line into <a href=\"https://www.sydneycriminallawyers.com.au/blog/school-bullying-the-law/\" rel=\"nofollow noreferrer\">criminality</a>.</p>\n<p>Section 60E of the Crimes Act 1900, titled ‘Assaults etc at schools’, makes it a criminal offence to assault, stalk, harass or intimidate any staff member or student while they are at school. As described the bullying is <em>probably</em> harassment and <em>might</em> be intimidation but there are insufficient facts given to be sure.</p>\n<p>There are Commonwealth laws against cyber-harassment but the OP is silent on how the bullying happened.</p>\n<p>There would be evidentiary difficulties in proving either since the victim can’t give evidence, and the perpetrators can’t be forced to testify. The OP doesn’t state if there is physical evidence, or third-party witnesses to the bullying.</p>\n<p>Section 31C makes it a crime to incite suicide but there is no evidence of that in the OP.</p>\n<h2>The school</h2>\n<p>The school and the teachers have an obligation under the Work Health and Safety Act to take all reasonable steps to provide a safe environment. Failure to do so is a crime.</p>\n<p>Bullying is a foreseeable hazard, both in general and in the particular case. Whether the school acted reasonable would depend on if they had adequate policies and procedures in place and if they reasonably followed those in the particular case.</p>\n",
"score": 2
}
] | 94,622 | CC BY-SA 4.0 | [
"united-states",
"england-and-wales",
"negligence",
"homicide",
"manslaughter"
] | 1 | https://law.stackexchange.com/questions/94622/was-this-a-case-of-negligent-homicide-and-have-any-other-offences-been-committe |
Can a woman living in Brazil collect child support from someone in the United States? | <p>The baby was born in the United States but has been living in Brazil for 6 years. The mother is a Brazilian citizen.</p>
| [
{
"answer_id": 94602,
"body": "<blockquote>\n<p>Can a woman living in Brazil collect child support from someone in the\nUnited States?</p>\n</blockquote>\n<p>Yes. There would need to be first, a legal establishment of paternity if that is not already in place, and then an application to a court for a child support order.</p>\n<p>The question of whether one should proceed in a U.S. court or a Brazilian court is a tactical one that would be evaluated based upon the circumstances by the lawyers involved in doing so.</p>\n<p>Generally, that would open the door to child custody proceedings as well in the same, or a parallel case.</p>\n",
"score": 16
}
] | 94,599 | CC BY-SA 4.0 | [
"united-states",
"child-support",
"brazil"
] | 7 | https://law.stackexchange.com/questions/94599/can-a-woman-living-in-brazil-collect-child-support-from-someone-in-the-united-st |
Is deliberate radio interference a crime? | <p>I know that it is forbidden by FCC regulations to deliberately interfere with radio communications, but is it a crime?</p>
| [
{
"answer_id": 94621,
"body": "<p>Yes. <a href=\"https://www.law.cornell.edu/uscode/text/47/333\" rel=\"noreferrer\">47 U.S. Code § 333</a> (part of the Communications Act of 1934 as amended) bans willful or malicious interference. <a href=\"https://www.law.cornell.edu/uscode/text/47/501\" rel=\"noreferrer\">§ 501</a> imposes a general penalty for any violation of the Communications Act that doesn’t have a different penalty defined elsewhere in the Act. A first offense is a misdemeanor punishable by up to a $10,000 fine and/or up to a year in jail. Subsequent offenses are felonies punishable by up to 2 years in prison.</p>\n<p>In practice, this might result in only a civil action by the FCC. But it is forbidden by Congress and can be punished by imprisonment.</p>\n",
"score": 18
},
{
"answer_id": 94618,
"body": "<p><strong>United Kingdom</strong></p>\n<p>It is an <strong>offence</strong>: the <a href=\"https://www.legislation.gov.uk/ukpga/2006/36/section/68\" rel=\"noreferrer\">Wireless Telegraphy Act 2006</a> states</p>\n<blockquote>\n<p><strong>68 Deliberate interference</strong></p>\n<p>(1) A person commits an offence if he uses apparatus for the purpose of interfering with wireless telegraphy.</p>\n</blockquote>\n<p>About the possibly narrow definition of <a href=\"https://en.wikipedia.org/wiki/Wireless_telegraphy\" rel=\"noreferrer\">Wireless Telegraphy</a>, this <a href=\"https://www.legislation.gov.uk/ukpga/2006/36/section/116\" rel=\"noreferrer\">section of the Act</a> says</p>\n<blockquote>\n<p><strong>116 “Wireless telegraphy”</strong></p>\n<p>(1) In this Act “wireless telegraphy” means the emitting or receiving, over paths that are not provided by any material substance constructed or arranged for the purpose, of energy to which subsection (2) applies.</p>\n<p>(2) This subsection applies to electromagnetic energy of a frequency not exceeding 3,000 gigahertz that —<br />\n (a) serves for conveying messages, sound or visual images (whether or not the messages, sound or images are actually received by anyone), or for operating or controlling machinery or apparatus; or<br />\n (b) is used in connection with determining position, bearing or distance, or for gaining information as to the presence, absence, position or motion of an object or of a class of objects.</p>\n</blockquote>\n",
"score": 11
},
{
"answer_id": 94620,
"body": "<p>Yes. A violation of basically any FCC regulation is a criminal offense under either <a href=\"https://casetext.com/statute/united-states-code/title-47-telecommunications/chapter-5-wire-or-radio-communication/subchapter-v-penal-provisions-forfeitures/section-502-violation-of-rules-regulations-etc\" rel=\"noreferrer\">47 U.S.C. § 502</a> or <a href=\"https://casetext.com/statute/united-states-code/title-47-telecommunications/chapter-5-wire-or-radio-communication/subchapter-v-penal-provisions-forfeitures/section-501-general-penalty\" rel=\"noreferrer\">47 U.S. Code § 501</a>:</p>\n<blockquote>\n<p>Any person who willfully and knowingly does ... any act ... in this chapter prohibited or declared to be unlawful ... shall, upon conviction thereof, be punished for such offense, for which no penalty (other than a forfeiture) is provided in this chapter, by a fine of not more than $10,000 or by imprisonment for a term not exceeding one year, or both</p>\n</blockquote>\n<p>And jail time is doubled for repeat offenders.</p>\n<blockquote>\n<p>Any person, having been once convicted of an offense punishable under this section, who is subsequently convicted of violating any provision of this chapter punishable under this section, shall be punished by a fine of not more than $10,000 or by imprisonment for a term not exceeding two years, or both.</p>\n</blockquote>\n",
"score": 7
}
] | 94,617 | CC BY-SA 4.0 | [
"united-states",
"criminal-law",
"radio",
"fcc",
"communications-law"
] | 11 | https://law.stackexchange.com/questions/94617/is-deliberate-radio-interference-a-crime |
Are Drone Intrusion Prevention Systems (Drone IPS) systems illegal? | <p>A <a href="https://twitter.com/JGamblin/status/831592230959788033" rel="noreferrer">drone intrusion prevention product</a> being advertised at RSA Conference this year has piqued my interest, and I'm trying to determine whether it and other drone IPS systems are illegal.</p>
<p>For background, a <a href="https://en.wikipedia.org/wiki/Wireless_intrusion_prevention_system" rel="noreferrer">WIPS</a> is a device which looks for unexpected WiFi access points nearby and purposefully sends <a href="https://en.wikipedia.org/wiki/Wi-Fi_deauthentication_attack" rel="noreferrer">de-authentication</a> packets in order to prevent them from working. In August 2015 <a href="https://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0818/DA-15-917A1.pdf" rel="noreferrer">the FCC ruled</a> that doing this to hotel guests was illegal, citing Section 333 of the Communications Act 1934. This appears to tally with <a href="https://www.fcc.gov/general/jammer-enforcement" rel="noreferrer">the FCC's guidance</a>. However, it has been pointed out to me that this precedent may not be applicable as the ruling was in relation to internet service being denied.</p>
<p>One could potentially also argue that such actions are in violation of the Computer Fraud and Abuse Act (CFAA) under the same provisions which make denial-of-service (DoS) attacks illegal. UK law also has provisions under the Communications Act 2003 and the Computer Misuse Act 1990 (CMA), with similar advice given by OFCOM (<a href="https://www.ofcom.org.uk/spectrum/radio-spectrum-and-the-law/jammers" rel="noreferrer">1</a>, <a href="https://www.ofcom.org.uk/spectrum/interference-enforcement" rel="noreferrer">2</a>, <a href="https://www.ofcom.org.uk/spectrum/radio-spectrum-and-the-law/jammers" rel="noreferrer">3</a>) as the FCC gives.</p>
<p>Drone Intrusion Prevention Systems are a similar concept, designed as security devices which identify drones in the vicinity and inject commands into the control channel in order to disable them. The advertised use-case is to prevent an attacker from using a drone to spy on people's screens, or gain entry to a secured facility. The apparent functionality is that the system identifies a drone in the area, and an operator can choose to have the system disable or otherwise inhibit that drone's functionality.</p>
<p>One could argue that injecting commands into the control stream would constitute a violation of both the CFAA and CMA since it causes a computerised system (the drone) to stop functioning or be taken over without the consent of the drone operator.</p>
<p>A key thing to note in both cases is that the denial of service is not indiscriminate in terms of jamming the radio spectrum: devices operating on that band will continue to work unless specifically targeted.</p>
<p><a href="https://www.law.cornell.edu/uscode/text/47/333" rel="noreferrer">47 U.S.C. § 333</a> states:</p>
<blockquote>
<p>No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government.</p>
</blockquote>
<p>It is clear to me that indiscriminately jamming a radio band is illegal under both the US and UK Communications Acts. What is not clear to me is whether interjecting additional commands is illegal, nor whether a drone user operating within the vicinity of such a device counts as "authorized" under this particular facet of law. From what I have read, the term appears to refer to communications which are not themselves in violation of the Communications Act, but I'm not certain whether this matters.</p>
<p>Are these devices illegal under US/UK law? Is there any precedent in this matter?</p>
| [
{
"answer_id": 23698,
"body": "<p>For the USA, the FCC has a few words to say on the subject:</p>\n<blockquote>\n<p>“Generally, “jammers” — which are also commonly called signal blockers, GPS jammers, cell phone jammers, text blockers, etc. — are illegal radio frequency transmitters that are designed to block, jam, or otherwise interfere with authorized radio communications.”\n(<a href=\"https://transition.fcc.gov/eb/jammerenforcement/jamfaq.pdf\" rel=\"nofollow noreferrer\">https://transition.fcc.gov/eb/jammerenforcement/jamfaq.pdf</a>)</p>\n</blockquote>\n<p>In addition, the FCC specifically calls out WiFi blocking devices using deauth attacks as you described, calling them “Willful or malicious interference” in a warning they <a href=\"http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0127/DA-15-113A1.pdf\" rel=\"nofollow noreferrer\">issued in 2015</a></p>\n<p>This is the closest thing to precedent I could find, related specifically to WiFi\n.\nThat pretty much sums it up. If the device’s primary purpose involves disabling radio communication, it is illegal. It does not matter to the FCC how targeted or filtered the attack may be, it is still unauthorized. At the core of the issue, you (a private citizen) are not allowed to maliciously or willfully interfere with someone operating their radio, no ifs, ands, or buts. Drone IPS system using such an attack would most likely be illegal. The FCC may change this interpretation in the future, but for now it is illegal.</p>\n",
"score": 6
},
{
"answer_id": 26812,
"body": "<p>In the United States -</p>\n\n<ul>\n<li><p>Flying within Class G airspace (max 400 ft.) over private property without permission is trespassing (min 500 ft.) </p></li>\n<li><p>A 107 certified pilot is not restricted to 400 ft., and may have a BVLOS waiver. (It can be difficult to assess whether a drone is above 500 feet.)</p></li>\n<li><p>In the US, it is a violation of federal criminal law to instigate <em>any</em> attack intended to interfere with the flightworthiness of a craft currently in flight. The penalties for doing so or attempting to do so are severe (especially if the attack involved ballistics, such as shooting at it with a firearm.) Throwing anything at all - a rock, your shoes, <a href=\"https://www.youtube.com/watch?v=bOnjlyZf6LE\" rel=\"noreferrer\">a spear</a>, a towel, your shirt, etc. <strong><em>intended to deliberately cause a flying craft to free-fall.</em></strong></p></li>\n<li><p>FAA regulations explicitly disallow any attempt at \"towing\" by a craft in flight of another craft in flight. </p></li>\n<li><p>CFAA absolutely applies to a drone's companion computer, which means that targeting Wi-Fi, Bluetooth or network services (including spoofing, etc.) are all illegal. Because CFAA is part of the Patriot Act, attempting to disable a drone in this fashion could lead to a terrorism charge.</p></li>\n<li><p>The only generalized exemptions to this are reserved for the military and only for military purposes; shooting down a civilian's Phantom 4 with a Stinger missile is no more permissible than blowing up their car with a bazooka. </p></li>\n<li><p>This includes the overwhelming majority of law enforcement including state, local, and federal, who will seek to identify the pilot with the assistance of the FAA. Once they locate the pilot, they will take control of the craft or order the pilot to land.</p></li>\n</ul>\n\n<p><em><strong>The only generally \"legal\" way to interfere with a UAV in flight is to crash into it with your own drone. This qualifies as an in-air collision, and is considered an accident.</strong></em></p>\n\n<p>My startup builds aerial security drones, one of which performs autonomous nuisance drone control. We do this without using any form of ballistics, RF interference (illegal without a waiver from the FCC which are almost impossible to obtain and do not scale), EM discharge, etc. We have developed a way of disabling nuisance drones (it is not considered towing if the craft is not in flight), at which point we force the nuisance drone to ground in a controlled manner (not a freefall.) <em>At this time, we do not provide these drones to private sector pilots, including private sector commercial pilots; they are <strong>only available to law enforcement and public safety officials whose agencies / departments</em></strong> who are willing to obtain the waiver granting permission to use them (we will help them with this process, if needed.)</p>\n",
"score": 6
},
{
"answer_id": 17406,
"body": "<p>UK-based answer:</p>\n\n<p>With regards to rights above land, we know from <em>Bernstein v Skyviews and General Ltd</em> [1978] QB 479 that a person owns: \"the airspace above his land to such height as was necessary for the ordinary use and enjoyment of his land and the structures upon it\"</p>\n\n<p>Though this wouldn't allow you to sue someone for flying a helicopter or airplane above your land, I would believe that drones would count as flying low enough as to be potentially infringing on your right. </p>\n\n<p>That said, this only really means that if someone flies their drown over your land, low enough to annoy you, you could ask them to cease and desist. I don't think you would be justified in installing a \"drone-jammer\" or any system which injects commands to a drone to render it inoperable or to gain control over it.</p>\n\n<p>In the same way that if there is an intruder to your property, you can't without warning just physically shove them off of your property.</p>\n",
"score": 3
}
] | 17,225 | CC BY-SA 3.0 | [
"united-states",
"united-kingdom",
"computer-misuse-act",
"radio",
"fcc"
] | 14 | https://law.stackexchange.com/questions/17225/are-drone-intrusion-prevention-systems-drone-ips-systems-illegal |
I want to know if i have the right to push someone if they slapped me in self defense | <p>I have a question, about 3 or 4 months ago, i was just outside chilling with some of my friends and then some girl came and slapped me, all i did was push her back in self defense. I just want to know if that is legal or not. I live in Germany, thank you.</p>
| [
{
"answer_id": 56688,
"body": "<p>If you pushed her back <strong>after</strong> she slapped you <strong>and</strong> it is not clear that a second slapping would occur (<strong>or</strong> she slapped you, because you pushed her)</p>\n<ul>\n<li>then it is <strong>not</strong> self-defence\n<ul>\n<li>you (<strong>or</strong> she) did not <strong>prevent a present</strong> unlawful attack</li>\n</ul>\n</li>\n</ul>\n<p>If it is clear that you are <strong>going to be</strong> slapped</p>\n<ul>\n<li>then pushing her away, in a reasonable manor, is self-defence\n<ul>\n<li>you <strong>prevented a present</strong> unlawful attack</li>\n</ul>\n</li>\n</ul>\n<p>What is considered <strong>reasonable</strong> will later be determined by a judge.</p>\n<hr />\n<blockquote>\n<p><a href=\"https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0186\" rel=\"nofollow noreferrer\">§ 32 - Self-defence StGB</a><br />\n(2) ‘Self-defence’ means any defensive action which is necessary <strong>to avert a present</strong> unlawful attack on oneself or another.</p>\n</blockquote>\n<hr />\n<p><strong>Sources</strong>:</p>\n<ul>\n<li><a href=\"https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0186\" rel=\"nofollow noreferrer\">§ 32 - Self-defence StGB</a></li>\n</ul>\n",
"score": 2
}
] | 56,683 | CC BY-SA 4.0 | [
"germany",
"self-defense"
] | 0 | https://law.stackexchange.com/questions/56683/i-want-to-know-if-i-have-the-right-to-push-someone-if-they-slapped-me-in-self-de |
Easy way to check if libel has been committed? | <p>We have an article about someone's activities that I believe was written carefully to avoid libel:</p>
<p><a href="http://pdacamp.com/Sam-Wolanyk-and-Tangod-Up-In-Blues/" rel="nofollow noreferrer">http://pdacamp.com/Sam-Wolanyk-and-Tangod-Up-In-Blues/</a></p>
<p>Now the party in question is threatening to sue (but of course refuses to point to which sections he believes are libelous)</p>
<p>Is there an easy resource to get legal advice on whether this falls under libel or not, or do we have to pay the $$ to "lawyer up" if we want to be safe?</p>
| [
{
"answer_id": 94598,
"body": "<blockquote>\n<p>Now the party in question is threatening to sue (but of course refuses to point to which sections he believes are libelous) ... do we have to pay the $$ to "lawyer up" if we want to be safe?</p>\n</blockquote>\n<p>If you get sued, you will definitely want a lawyer. If you don't get sued, well, in that case you're safe. So your first question is whether the supposedly aggrieved party will actually sue. Your second question is, <em>if</em> they sue, do they have a good case? That question will be useful in deciding whether to settle.</p>\n<p>If the threats are empty then you might want to hire a lawyer to call their bluff.\nOtherwise you may have to endure the continual empty threats. This is especially true if the libel case is weak. Your lawyer can write a letter that explains why there is no case.</p>\n<p>If they do sue, they will have to identify the specific libelous statements, so you will at that point be able to refute the claims. But you'll also want a lawyer at that point, so you won't have to be directly concerned with the details; your lawyer will take care of them.</p>\n<p>As suggested in a comment, do keep in mind that a true statement cannot be libelous, by definition. To the extent that you can prove that every statement in the piece is true then you don't have much to worry about. But even then you'll want a lawyer's advice, because even if you know yourself that everything is true, you don't know what it will take to prove that in court. (Another aspect of the element of falsity is that statements of opinion are generally not defamatory.)</p>\n<p>To learn for yourself about the elements of libel you can start with Wikipedia or a bit of internet searching. To get a thorough analysis of the facts of your case in light of the laws of the relevant jurisdictions, you will need to engage a lawyer. It might not cost as much as you fear.</p>\n",
"score": 4
}
] | 94,594 | CC BY-SA 4.0 | [
"united-states",
"libel"
] | 0 | https://law.stackexchange.com/questions/94594/easy-way-to-check-if-libel-has-been-committed |
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