# migrations

dir: sysdb
filename: 00001-collections.sqlite.sql
hash: 38352d725ad1c16074fac420b22b4633
sql:
CREATE TABLE collections (
    id TEXT PRIMARY KEY,
    name TEXT NOT NULL,
    topic TEXT NOT NULL,
    UNIQUE (name)
);

CREATE TABLE collection_metadata (
    collection_id TEXT REFERENCES collections(id) ON DELETE CASCADE,
    key TEXT NOT NULL,
    str_value TEXT,
    int_value INTEGER,
    float_value REAL,
    PRIMARY KEY (collection_id, key)
);


dir: sysdb
filename: 00002-segments.sqlite.sql
hash: 2913cb6a503055a95f625448037e8912
sql:
CREATE TABLE segments (
    id TEXT PRIMARY KEY,
    type TEXT NOT NULL,
    scope TEXT NOT NULL,
    topic TEXT,
    collection TEXT REFERENCES collection(id)
);

CREATE TABLE segment_metadata (
    segment_id TEXT  REFERENCES segments(id) ON DELETE CASCADE,
    key TEXT NOT NULL,
    str_value TEXT,
    int_value INTEGER,
    float_value REAL,
    PRIMARY KEY (segment_id, key)
);


dir: sysdb
filename: 00004-tenants-databases.sqlite.sql
hash: 048867ce8fcdefe4023c7110e4433591
sql:
CREATE TABLE IF NOT EXISTS tenants (
    id TEXT PRIMARY KEY,
    UNIQUE (id)
);

CREATE TABLE IF NOT EXISTS databases (
    id TEXT PRIMARY KEY, -- unique globally
    name TEXT NOT NULL, -- unique per tenant
    tenant_id TEXT NOT NULL REFERENCES tenants(id) ON DELETE CASCADE,
    UNIQUE (tenant_id, name) -- Ensure that a tenant has only one database with a given name
);

CREATE TABLE IF NOT EXISTS collections_tmp (
    id TEXT PRIMARY KEY, -- unique globally
    name TEXT NOT NULL, -- unique per database
    topic TEXT NOT NULL,
    dimension INTEGER,
    database_id TEXT NOT NULL REFERENCES databases(id) ON DELETE CASCADE,
    UNIQUE (name, database_id)
);

-- Create default tenant and database
INSERT OR REPLACE INTO tenants (id) VALUES ('default_tenant'); -- The default tenant id is 'default_tenant' others are UUIDs
INSERT OR REPLACE INTO databases (id, name, tenant_id) VALUES ('00000000-0000-0000-0000-000000000000', 'default_database', 'default_tenant');

INSERT OR REPLACE INTO collections_tmp (id, name, topic, dimension, database_id)
    SELECT id, name, topic, dimension, '00000000-0000-0000-0000-000000000000' FROM collections;
DROP TABLE collections;
ALTER TABLE collections_tmp RENAME TO collections;


dir: sysdb
filename: 00005-remove-topic.sqlite.sql
hash: b1367c826b8fba5f96f27befdc1d42d2
sql:
-- Remove the topic column from the Collections and Segments tables

ALTER TABLE collections DROP COLUMN topic;
ALTER TABLE segments DROP COLUMN topic;


dir: sysdb
filename: 00006-collection-segment-metadata.sqlite.sql
hash: 4eea7468935bf25d4604a0fed2366116
sql:
-- SQLite does not support adding check with alter table, as a result, adding a check
-- involve creating a new table and copying the data over. It is over kill with adding
-- a boolean type column. The application write to the table needs to ensure the data
-- integrity.
ALTER TABLE collection_metadata ADD COLUMN bool_value INTEGER;
ALTER TABLE segment_metadata ADD COLUMN bool_value INTEGER;


dir: sysdb
filename: 00007-collection-config.sqlite.sql
hash: 1c7e63bba346a42a18b6ab7f1c989bed
sql:
-- Stores collection configuration dictionaries.
ALTER TABLE collections ADD COLUMN config_json_str TEXT;


dir: sysdb
filename: 00008-maintenance-log.sqlite.sql
hash: 0a0e7e93111a01789addf64961c6127c
sql:
-- Records when database maintenance operations are performed.
-- At time of creation, this table is only used to record vacuum operations.
CREATE TABLE maintenance_log (
  id INT PRIMARY KEY,
  timestamp INT NOT NULL,
  operation TEXT NOT NULL
);


dir: sysdb
filename: 00009-segment-collection-not-null.sqlite.sql
hash: 054355aef9e63702bf54ea29e61563f1
sql:
-- This makes segments.collection non-nullable.
CREATE TABLE segments_temp (
    id TEXT PRIMARY KEY,
    type TEXT NOT NULL,
    scope TEXT NOT NULL,
    collection TEXT REFERENCES collection(id) NOT NULL
);

INSERT INTO segments_temp SELECT * FROM segments;
DROP TABLE segments;
ALTER TABLE segments_temp RENAME TO segments;


dir: metadb
filename: 00001-embedding-metadata.sqlite.sql
hash: 2b4cf52c4bb2676e21d6860a4409f856
sql:
CREATE TABLE embeddings (
    id INTEGER PRIMARY KEY,
    segment_id TEXT NOT NULL,
    embedding_id TEXT NOT NULL,
    seq_id BLOB NOT NULL,
    created_at TIMESTAMP NOT NULL DEFAULT CURRENT_TIMESTAMP,
    UNIQUE (segment_id, embedding_id)
);

CREATE TABLE embedding_metadata (
    id INTEGER REFERENCES embeddings(id),
    key TEXT NOT NULL,
    string_value TEXT,
    int_value INTEGER,
    float_value REAL,
    PRIMARY KEY (id, key)
);

CREATE TABLE max_seq_id (
    segment_id TEXT PRIMARY KEY,
    seq_id BLOB NOT NULL
);

CREATE VIRTUAL TABLE embedding_fulltext USING fts5(id, string_value);


dir: metadb
filename: 00002-embedding-metadata.sqlite.sql
hash: 12a570f7121b3a8ce750a2a7c36da20f
sql:
-- SQLite does not support adding check with alter table, as a result, adding a check
-- involve creating a new table and copying the data over. It is over kill with adding
-- a boolean type column. The application write to the table needs to ensure the data
-- integrity.
ALTER TABLE embedding_metadata ADD COLUMN bool_value INTEGER


dir: metadb
filename: 00003-full-text-tokenize.sqlite.sql
hash: f97ad6334aeaa8f419f01110b648b97a
sql:
CREATE VIRTUAL TABLE embedding_fulltext_search USING fts5(string_value, tokenize='trigram');
INSERT INTO embedding_fulltext_search (rowid, string_value) SELECT rowid, string_value FROM embedding_metadata;
DROP TABLE embedding_fulltext;


dir: metadb
filename: 00004-metadata-indices.sqlite.sql
hash: fb36603a45ee2cd0254cef3ef86585e8
sql:
CREATE INDEX IF NOT EXISTS embedding_metadata_int_value ON embedding_metadata (key, int_value) WHERE int_value IS NOT NULL;
CREATE INDEX IF NOT EXISTS embedding_metadata_float_value ON embedding_metadata (key, float_value) WHERE float_value IS NOT NULL;
CREATE INDEX IF NOT EXISTS embedding_metadata_string_value ON embedding_metadata (key, string_value) WHERE string_value IS NOT NULL;


dir: metadb
filename: 00005-max-seq-id-int.sqlite.sql
hash: 0e9de46758761b373ce682925edcc326
sql:
ALTER TABLE max_seq_id ADD COLUMN int_seq_id INTEGER;

-- Convert 8 byte wide big-endian integer as blob to native 64 bit integer.
-- Adapted from https://stackoverflow.com/a/70296198.
UPDATE max_seq_id SET int_seq_id = (
  SELECT (
       (instr('123456789ABCDEF', substr(hex(seq_id), -1 , 1)) <<  0)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -2 , 1)) <<  4)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -3 , 1)) <<  8)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -4 , 1)) << 12)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -5 , 1)) << 16)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -6 , 1)) << 20)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -7 , 1)) << 24)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -8 , 1)) << 28)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -9 , 1)) << 32)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -10, 1)) << 36)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -11, 1)) << 40)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -12, 1)) << 44)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -13, 1)) << 48)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -14, 1)) << 52)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -15, 1)) << 56)
     | (instr('123456789ABCDEF', substr(hex(seq_id), -16, 1)) << 60)
    )
);

ALTER TABLE max_seq_id DROP COLUMN seq_id;
ALTER TABLE max_seq_id RENAME COLUMN int_seq_id TO seq_id;


dir: embeddings_queue
filename: 00001-embeddings.sqlite.sql
hash: d3755dfd232be8e8301f4d7fcfb3a486
sql:
CREATE TABLE embeddings_queue (
    seq_id INTEGER PRIMARY KEY,
    created_at TIMESTAMP NOT NULL DEFAULT CURRENT_TIMESTAMP,
    operation INTEGER NOT NULL,
    topic TEXT NOT NULL,
    id TEXT NOT NULL,
    vector BLOB,
    encoding TEXT,
    metadata TEXT
);


# collections

id: 70d56a6d-0948-470f-9724-d32144d699a0
name: law_stackexchange
database_id: 00000000-0000-0000-0000-000000000000
config_json_str:
{"vector_index":{"hnsw":{"space":"cosine","ef_construction":100,"ef_search":100,"max_neighbors":16,"resize_factor":1.2,"sync_threshold":1000}},"embedding_function":{"type":"known","name":"default","config":{}}}


# embedding_metadata

key: chroma:document
string_value:
Question Title: Why is drunk driving causing accident punished so much worse than just drunk driving?

Question Body: <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>


key: chroma:document
string_value:
Answer 1: <h3>Moral luck</h3>
<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, &quot;<a href="https://rintintin.colorado.edu/%7Evancecd/phil1100/Nagel1.pdf" rel="noreferrer">Moral Luck</a>&quot; (1979) and <a href="https://en.m.wikipedia.org/wiki/Bernard_Williams" rel="noreferrer">Bernard Williams</a>, &quot;<a href="https://bibliotecamathom.files.wordpress.com/2012/10/williams_-_moral_luck.pdf" rel="noreferrer">Moral Luck</a>&quot; (1976). Specifically, you are describing what they call <em>outcome</em> luck, or <em>consequential</em> luck.</p>
<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>
<ul>


key: chroma:document
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<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>
<ul>
<li>dangerous driving vs. dangerous driving that causes death</li>
<li>a successful offence vs. an attempted offence (generally resulting in a maximum sentence less than that of the successful offence)</li>
</ul>
<p>Nagel writes:</p>
<blockquote>
<p>If someone has had too
much 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
be to blame for their deaths, and would probably be prosecuted for
manslaughter. But if he hurts no one, although his recklessness is exactly the
same, he is guilty of a far less serious legal offence and will certainly reproach
himself and be reproached by others much less severely. To take another legal
example, the penalty for attempted murder is less than that for successful


key: chroma:document
string_value:
himself and be reproached by others much less severely. To take another legal
example, the penalty for attempted murder is less than that for successful
murder – however similar the intentions and motives of the assailant may be
in the two cases. His degree of culpability can depend, it would seem, on
whether the victim happened to be wearing a bullet-proof vest, or whether a
bird flew into the path of the bullet – matters beyond his control.</p>
<p>...</p>
<p>... How is it possible to be more or less culpable depending
on whether a child gets into the path of one’s car, or a bird into the path of
one’s bullet? Perhaps it is true that what is done depends on more than the
agent’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
amounts to holding them responsible for the contributions of fate as well as


key: chroma:document
string_value:
amounts to holding them responsible for the contributions of fate as well as
for 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>
</blockquote>
<h3>Two offered justifications for making distinctions based purely on outcome</h3>
<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> &amp; <a href="https://en.m.wikipedia.org/wiki/Andrei_Marmor" rel="noreferrer">Andrei Marmor</a>, &quot;<a href="https://www.jstor.org/stable/27652623" rel="noreferrer">The Case against Moral Luck</a>&quot;, 26 LAW &amp; PHIL. 405 (2007), pp. 415–17)</p>
<ul>


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<ul>
<li>epistemological / evidential — the person who <em>actually</em> killed a person was more likely to have been driving more recklessly</li>
<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>
</ul>
<p>A couple of quotes from Enoch and Marmor:</p>
<blockquote>
<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
degree of recklessness.</p>
</blockquote>
<blockquote>
<p>A conception of fairness that requires
agents to internalize the costs of their risky activities does not
necessarily reflect a view of responsibility or blameworthiness.
It may simply reflect a judgment about the appropriate distribution of the costs of risky activities.</p>


key: chroma:document
string_value:
necessarily reflect a view of responsibility or blameworthiness.
It may simply reflect a judgment about the appropriate distribution of the costs of risky activities.</p>
</blockquote>


key: chroma:document
string_value:
Answer 2: <p>Drunk driving remains, per se, &quot;victimless&quot; - 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>
<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>


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<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>
<p>Not applying the penalty for the worst possible consequences for every act also avoids &quot;in for a penny, in for a pound&quot; perverse incentives, prompting one to exercise whatever amount of caution they still can.</p>


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Answer 3: <p>Drivers are negligent all the time. Not only by drunk driving, but also by speeding, driving when really tired, etc.</p>
<p>The question is, what level of negligence is enough to call it recklessness?</p>
<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>
<p>It is not the best method, but it is also not completely unreasonable.</p>


Answer 4: <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>
<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>


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Answer 5: <p><strong>The question &quot;How drunk is drunk?&quot; is legally more flexible than &quot;How dead is dead&quot;</strong></p>
<p>Ultimately, the range of &quot;Too drunk&quot; 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>


key: chroma:document
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<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. &quot;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&quot; 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>


key: chroma:document
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<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>


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Answer 6: <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>
<p>Simply put, the law exists so people do not need to seek whatever they want through illegal means.</p>
<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>
<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>


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<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>
<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>
<p>As for drunk driving by itself, it is only punished as a preventative measure.</p>


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Answer 7: <p>Consider these two scenarios:</p>
<ul>
<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>
<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>
</ul>
<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>


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Answer 8: <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>
<p>So we have a legal limit where the average person would be sufficiently impaired, such that they shouldn't be driving.</p>
<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>
<p>So charging all drunk drivers with homicide-level offenses doesn't make much sense given the amount of variation there.</p>


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<p>So charging all drunk drivers with homicide-level offenses doesn't make much sense given the amount of variation there.</p>
<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>
<hr />


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<hr />
<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>
<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>


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Answer 9: <h2>Harming someone, or being drunker, offers different facts that violate more laws.</h2>
<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>
<h3>Violating some laws gets you punished harder than others.</h3>
<p>And with drunk driving, often laws are written like escalation steps.
Let me use the law of <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a> as an example:</p>
<ul>
<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>


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<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>
<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>
<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 &quot;0.5 permille limit&quot;</li>


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<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>
<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>
</ul>


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</ul>
<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>
<ul>
<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>
<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>
</ul>


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Question Title: What counts as consideration in contract law?

Question Body: <p>What counts as consideration in contract law? Does consideration from party A have to be to the benefit of the party B?</p>


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Answer 1: <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>
<blockquote>
<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>
</blockquote>


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Answer 2: <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>
<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>
<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>


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Answer 3: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<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>
<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>


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<p>Consideration in U.S. common law, however, cannot be &quot;meretricious&quot; (i.e. for having sex) or otherwise illegal (e.g. illegal drugs or a contract to murder someone). Likewise &quot;love and affection&quot; or other donative intent directed at the other party to the contract is not consideration.</p>
<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>
<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 &quot;<a href="https://en.wikipedia.org/wiki/Peppercorn_(law)" rel="nofollow noreferrer">peppercorn  theory</a>&quot;.</p>
<blockquote>
<p>In legal parlance, a peppercorn is a metaphor for a very small cash
payment or other nominal consideration, used to satisfy the
requirements for the creation of a legal contract. It is featured in


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<p>In legal parlance, a peppercorn is a metaphor for a very small cash
payment or other nominal consideration, used to satisfy the
requirements for the creation of a legal contract. It is featured in
<em><a href="https://en.wikipedia.org/wiki/Chappell_%26_Co_Ltd_v_Nestle_Co_Ltd" rel="nofollow noreferrer">Chappell &amp; Co Ltd v Nestle Co Ltd</a></em> ([1960] AC 87), which stated that &quot;a peppercorn does not cease to be good consideration if it is
established that the promisee does not like pepper and will throw away
the corn&quot;.</p>
</blockquote>
<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>
<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>


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<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>
<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>
<p>If the parties to the contract do not exchange &quot;substantially equivalent value&quot; then a buyer in a contract is not a &quot;bona fide purchaser for value&quot; (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 &quot;fraudulent transfer&quot; which can be undone by a third-party creditor if the person on the losing side of the deal is insolvent.</p>


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Question Title: Question Concerning Responding to Employer of Minor Daughter Paid Under Minimum Wage


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Question Body: <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 &quot;new worker&quot; 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>


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<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 &quot;I hereby agree that the net payment of $XXX represents the full and final settlement of my account with Company XXX&quot;, 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 &quot;Why should I, the parent, need to sign anything here?&quot;. 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>


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Answer 1: <h2>Read the terms</h2>
<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>
<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>
<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>
<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>


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<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>
<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>
<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>
<p>Only you and your daughter can decide if this is a good deal.</p>


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Answer 2: <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>
<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>


Tags: employment, california, teenager


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Question Title: Can Hawaii secede from the U.S. through legal means?

Question Body: <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>


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Answer 1: <p><strong>Currently, there is no legal means for a state to secede form the U.S.</strong></p>
<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>
<blockquote>
<p>&quot;When the Confederate states seceded in 1861 and were then defeated in
the Civil War, the argument is that they demonstrated that you can't
secede from the Union. The 1869 Supreme Court case <a href="https://www.law.cornell.edu/supremecourt/text/74/700" rel="noreferrer">TEXAS v.
WHITE ET AL (Legal Information Institute)</a> determined that the
secession was never actually a real thing in the eyes of the federal
government. The Confederate States of America wasn't an independent
country any more than your house is its own country simply because you


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government. The Confederate States of America wasn't an independent
country any more than your house is its own country simply because you
say it is. 'The Constitution, in all its provisions,' the justices
wrote, 'looks to an indestructible Union composed of indestructible
States.'&quot;</p>
</blockquote>
<p>Also from that Post piece:</p>
<blockquote>
<p>In 2006, Justice Antonin Scalia was asked by screenwriter Dan
Turkewitz if the idea of Maine seceding from the country made sense as
a possible plot point. Scalia, perhaps unexpectedly, replied.</p>
<p>&quot;I cannot imagine that such a question could ever reach the Supreme
Court,&quot; Scalia wrote. &quot;To begin with, the answer is clear. If there
was any constitutional issue resolved by the Civil War, it is that
there is no right to secede. ... Secondly, I find it difficult to
envision who the parties to this lawsuit might be. Is the State suing
the United States for a declaratory judgment? But the United States


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envision who the parties to this lawsuit might be. Is the State suing
the United States for a declaratory judgment? But the United States
cannot be sued without its consent, and it has not consented to this
sort of suit.&quot;</p>
</blockquote>
<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>
<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>


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Answer 2: <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.
In <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,
7 Wall. 700 1868</a> the US Supreme Court confirmed this when wrote (in pars 101 &amp; 102 of the opinion):</p>
<blockquote>


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7 Wall. 700 1868</a> the US Supreme Court confirmed this when wrote (in pars 101 &amp; 102 of the opinion):</p>
<blockquote>
<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>


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<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>
</blockquote>
<p>Notice, however, the statement that the adherence of a state to the US could not be changed: &quot;except through revolution, or <strong>through consent of the States</strong>.&quot;</p>
<p>This leaves open the possibility of a <strong>bi</strong>lateral departure of a state.</p>


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<p>This leaves open the possibility of a <strong>bi</strong>lateral departure of a state.</p>
<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>


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<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>
<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>
<p>Thus the question must be considered undecided at this time.</p>


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Answer 3: <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>


Tags: united-states, constitutional-law, federalism


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Question Title: Legality of privately bibby Stockholming to save land costs

Question Body: <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>


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Answer 1: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<blockquote>
<p>then what stops private citizens from residing on such structures?</p>
</blockquote>
<p>Nothing. Anyone who can be a tenant of a house or apartment can be a tenant of a boat.</p>
<blockquote>
<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>
</blockquote>


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</blockquote>
<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>
<p>On the inland waterways you will need either a permanent mooring licence or a continuous cruising licence.</p>
<p>If you stay in one place sufficiently long you become liable for council tax.</p>
<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>


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<p>To lawfully start building things you need the appropriate permissions/consents.</p>
<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>
<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>


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Question Title: Can defendants arraigned in federal court sometimes be &quot;out on bail&quot; secretly with no way for the public to know about or verify the bail?


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Question Body: <p>In <a href="https://politics.stackexchange.com/a/80782/16047">this answer to my Politics SE question *Is former president Trump &quot;out on bail&quot; 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 &quot;but there's no indication&quot; 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>


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<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 &quot;out on bail&quot; 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 &quot;out on bail&quot; assertion is true, false, or currently unknowable with any certainty.</p>
<p><strong>Question:</strong> Can defendants arraigned in federal court sometimes be &quot;out on bail&quot; secretly with no way for the public to know about or verify the bail?</p>


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Answer 1: <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 &quot;post bail&quot;, which is a stronger statement that &quot;no indication that he was&quot;.</p>


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Answer 2: <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>
<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>
<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>
<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>


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<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>
<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>


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Question Title: What role does the person who signs post incorporation paperwork have in the company?

Question Body: <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 1: <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>


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<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>

<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>

<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>


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<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>


Tags: united-states, corporate-law, minor, incorporation


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Question Title: A 3 point credit is applied to your driving record for a 2-year period

Question Body: <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>&quot;<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>&quot;</p>
</blockquote>


Answer 1: <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>
<blockquote>
<p>When 2 years have passed from the date of a conviction, the demerit
points assessed for that conviction are removed from your driver's
record.</p>
</blockquote>


Tags: driving, alberta


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Question Title: Is there a viable cause of action for exposing someone of academic misconduct?

Question Body: <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>


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Answer 1: <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 &quot;home courts advantage&quot;. The EU has <a href="https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A32007R0864" rel="nofollow noreferrer">a rule</a> applying &quot;to non-contractual obligations in civil and commercial matters&quot; which expressly excludes &quot;non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation&quot; (there is no uniform EU answer). <a href="https://tlblog.org/multistate-defamation-cross-border-torts-and-choice-of-law/" rel="nofollow


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and rights relating to personality, including defamation&quot; (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>


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<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>


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Question Title: Is use of force in defense of another legal if the person being defended opposes the use of force?

Question Body: <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, &quot;Don't shoot him!&quot; Alice shoots Bob anyway. Is this legal?</p>
<p>Assume that it would have been unquestionably legal had John consented or remained silent.</p>


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Answer 1: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<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>
<p>John's consent is irrelevant unless it had some bearing on that.</p>
<p>Why did John oppose the use of force?</p>
<p>Did John tell Alice not to shoot because he  would rather die than cause a death? Irrelevant.</p>
<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>


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Answer 2: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<h3>This is a standard defence-of-another / self-defence analysis</h3>
<p>See</p>
<ul>
<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>
<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>
<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>
</ul>


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<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>
</ul>
<p>If Alice believes on reasonable grounds that there is a threat of force against John, then the defence called &quot;<a href="https://law.stackexchange.com/a/87387/46948">defence of another</a>&quot; comes into play. It is codified at s. 34 of the <em>Criminal Code</em>:</p>
<blockquote>
<p>34 (1) A person is not guilty of an offence if</p>
<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>
<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>
<p>(c) the act committed is reasonable in the circumstances.</p>
</blockquote>


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<p>(c) the act committed is reasonable in the circumstances.</p>
</blockquote>
<p>&quot;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&quot; (<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>
<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>
<h3>Your scenario only presents evidential uncertainty</h3>


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<h3>Your scenario only presents evidential uncertainty</h3>
<p>The scenario you describe only presents evidential uncertainty to the trier of fact. John's shout to &quot;Don't shoot him&quot; 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>


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Answer 3: <p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a> has <a href="https://www.gesetze-im-internet.de/stgb/__32.html" rel="nofollow noreferrer">§32(2) StGB</a></p>
<blockquote>
<p>Notwehr ist die Verteidigung, die erforderlich ist, um einen gegenwärtigen rechtswidrigen Angriff von sich oder einem anderen abzuwenden.<br />
Self-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>
</blockquote>


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Self-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>
</blockquote>
<p>The question here becomes if John saying <em>&quot;don't shoot him&quot;</em> should make it clear to Alice that Bob is <strong>not</strong> making an unlawful attack. <em>&quot;Don't shoot him&quot;</em> is not the same as <em>&quot;I consent to being attacked,&quot;</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>
<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>


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Question Title: Leading customers to use cheaper solution invented for another domain instead of expensive patented solution. Infringement?


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Question Body: <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>


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<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&amp;oq=ncam" rel="nofollow noreferrer">https://patents.google.com/patent/AU2013257788B2/en?assignee=ncam&amp;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>


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Answer 1: <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>


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<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>
<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>


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<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>
<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>


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<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>
<p>The patent you link to is not only described as used for broadcast. Gaming and other entertainment uses are mentioned.</p>
<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>


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<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>


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Answer 2: <h2>It probably doesn't violate the patent because it uses two cameras instead of three.</h2>
<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>
<blockquote>
<p>(b) a pair of stereoscopic witness cameras are fixed directly or indirectly to the film camera;</p>
</blockquote>
<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>
<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>


Tags: patents


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Question Title: Is it trademark fair use to use company name/logo on your resume?

Question Body: <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>


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<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>


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Answer 1: <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>
<p><strong>Why is it not nominative fair use?</strong></p>
<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>
<ol>
<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>
<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>
<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>
</ol>


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<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>
</ol>
<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>


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Question Body: <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>


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<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 &quot;could have&quot; 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 &quot;consideration&quot; so it isn't a binding contract.</p>


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<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>


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Answer 1: <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>


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<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


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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 &quot;the law&quot;, and declare what parties A and B must do.</p>


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Question Title: Why is research grade ethanol seemingly exempted from excise duties while pure ethanol ment for consumption isn&#39;t?


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Question Body: <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>


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<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>


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<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>


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Answer 1: <h2>Because there’s an exemption</h2>
<p>Which requires denaturing.</p>
<p>But there’s also an exemption to the exemption for when denaturing is not appropriate. Such as for laboratory use.</p>


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Answer 2: <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>
<p>For the excise tax, some alcohols are not counted, as the government (Customs Administration of the Netherlands, Ministry of Finance) themselves say:</p>
<blockquote>
<p>Excise goods</p>
<p>Under certain conditions, you can be exempted from excise duty. Examples include:</p>
<ul>
<li>ethyl alcohol not intended for internal use by humans</li>
<li>ethyl alcohol used for manufacturing medicines</li>
</ul>
</blockquote>
<p>Those two exceptions cover all laboratory alcohol, including non-denatured spirits.</p>


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<li>ethyl alcohol used for manufacturing medicines</li>
</ul>
</blockquote>
<p>Those two exceptions cover all laboratory alcohol, including non-denatured spirits.</p>
<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>


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Question Body: <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>


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<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>


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Answer 1: <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>
<p>If you took the opportunity to leave for 90 minutes to do your weekly shopping, then you shouldn't get paid.</p>


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Answer 2: <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>
<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>
<p>This is part of what is called &quot;Betriebsrisiko&quot;:</p>
<blockquote>


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<p>This is part of what is called &quot;Betriebsrisiko&quot;:</p>
<blockquote>
<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>
</blockquote>


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</blockquote>
<p><a href="http://www.jura-basic.de/aufruf.php?file=6&amp;art=&amp;find=Arbeitsrecht_Betriebsrisiko" rel="noreferrer">Source</a></p>
<p>Translation:</p>
<blockquote>
<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>


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</blockquote>
<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>
<p>Please note that during a time when you cannot do your original job, assuming a normal employment contract that has the default clause &quot;and other tasks as required by the employer&quot; 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>
<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>


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<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>
<p>They do <em>not</em> need to pay you for overtime. Overtime is not something you can just &quot;take&quot;, it needs to be accepted by both sides and obviously the company would never accept that you work &quot;overtime&quot; staring at walls doing nothing. So saying &quot;oh, we cannot work today, great, today is the day I wanted to do 3 hours of overtime, pay up!&quot; is not going to fly.</p>
<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>
<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>


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Answer 3: <p><strong>Company office or co-working space?</strong></p>
<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>
<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>


Tags: employment, germany, workplace


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Question Title: Who has ultimate responsibility for a child injured on a school trip?

Question Body: <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>


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Answer 1: <p>So many things were not addressed, so a precise answer is not possible.<br>
But to try to raise the proper questions you should be thinking about:</p>
<p><strong>Should the school have known the permission slip was forged?</strong><br>
Was 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>
<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>
<p><strong>Was the injury typical, foreseeable and recoverable?</strong><br>
Such 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>
<p><strong>Was the activity that lead to the injury inherently risky / dangerous?</strong><br>


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<p><strong>Was the activity that lead to the injury inherently risky / dangerous?</strong><br>
There 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>
<p><strong>What sort of &quot;responsibility&quot; are you interested in?</strong><br>
If 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>


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<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>
<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>


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Answer 2: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<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>
<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>
<blockquote>


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<blockquote>
<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>
<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>
</blockquote>
<hr />
<p><sup>1</sup>NB consent is not always required.
The government's <em>Health and safety on educational visits</em> guidance establishes that:</p>
<blockquote>
<p>A school must always get written consent for nursery age children.</p>
<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>
<p>Written consent is usually only needed for trips that:</p>
<ul>
<li><p>need a higher level of risk assessment</p>
</li>
<li><p>are outside normal school hours</p>
</li>
</ul>


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<p>Written consent is usually only needed for trips that:</p>
<ul>
<li><p>need a higher level of risk assessment</p>
</li>
<li><p>are outside normal school hours</p>
</li>
</ul>
<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>
</blockquote>


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Answer 3: <h2>The school has a duty of care towards its students</h2>
<p>If they discharged that duty, they are not responsible (liable); if they didn’t, they are.</p>
<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>
<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>


Tags: australia, minor, school, duty-of-care


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Question Title: How many indictments before imprisonment?

Question Body: <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>


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Answer 1: <blockquote>
<ol>
<li>How many indictments does it take for Donald Trump to be imprisoned?</li>
</ol>
</blockquote>
<p>An unlimited amount. Imprisonment is usually authorized as a result of a conviction rather than from an indictment.</p>
<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>
<blockquote>
<ol start="2">
<li>Can a person who is indicted, before running for president, become president?</li>
</ol>
</blockquote>
<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>


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<blockquote>
<ol start="3">
<li>What's the purpose of indicting Mr. Trump if indictments are only an accusation?</li>
</ol>
</blockquote>
<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>
<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>


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<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>
<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>


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<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>
<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>
<blockquote>
<p>Statistical figures showing a higher prevalence of grand jury
reluctance to follow the government in ages past are almost


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<blockquote>
<p>Statistical figures showing a higher prevalence of grand jury
reluctance to follow the government in ages past are almost
nonexistent. However, a table of felony arrests in New York County
between 1900 and 1907 found on page 111 of the 1926 book The Prisoner
at the Bar by Arthur Train provides some rare illumination. In those
seven years, some 5,214 out of 57,241 people were arrested by the
police on felony charges whom New York state grand jurors decided not
to indict.</p>
</blockquote>


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<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, &quot;<a href="https://scholarship.law.slu.edu/cgi/viewcontent.cgi?article=1076&amp;context=lawjournalonline" rel="noreferrer">Grand Juries Should Not Hear Police Misconduct Cases: Grand Juries will Indict Anything, but


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rel="noreferrer">Grand Juries Should Not Hear Police Misconduct Cases: Grand Juries will Indict Anything, but a Police Officer</a>&quot; <em>SLU Law Journal Online</em> 79 (2021).</p>


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Answer 2: <ol>
<li><p>You could have 100 indictments. You have to wait until one of the cases is finished with a &quot;guilty&quot; verdict.</p>
</li>
<li><p>The possibility may not have occured to anyone. Obviously yes if indictments end with a &quot;not guilty&quot; verdict.</p>
</li>
<li><p>When you go to court accused of murder, until the verdict is given it is &quot;only&quot; an accusation. That's the same for all criminal court cases. &quot;Innocent until proven guilty&quot;. 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 &quot;guilty&quot; or &quot;not guilty&quot; verdict.</p>
</li>
</ol>


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Answer 3: <ol>
<li>Indictments are just accusations. Until convicted, Trump is innocent.</li>
</ol>
<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>
<ol start="2">
<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>
</li>
<li><p>You need to accuse someone before you prove they did what you accuse them of. First the accusal, then the trial.</p>
</li>
</ol>


Tags: united-states, prison, us-president, indictment


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Question Body: <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>


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<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>


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<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>


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Answer 1: <p>The apportionment of fault will be highly case specific, based on ordinary principles of negligence.</p>
<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>
<blockquote>
<p>[11]      <strong>I believe that Mr. Pierce [the left-turning driver] was late in entering this
intersection. I do not accept that he could not have stopped on the
amber which he asserts. However, I am not prepared to find that he is
solely responsible at law for the collision.</strong></p>
<p>[12]      As stated above, I am unable to conclude with precise
exactitude which signal light was on when Mr. Pierce [the left-turning driver] entered the
intersection. I can conclude that the amber light had ceased and the


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exactitude which signal light was on when Mr. Pierce [the left-turning driver] entered the
intersection. I can conclude that the amber light had ceased and the
green light for Mr. Williams [the through driver] had turned on at some point prior to the
collision. The intersection is a well known intersection and given Mr.
MacKinnon’s evidence of the relative speed of Mr. Pierce’s vehicle and
what I understand to be the distances involved, I cannot accept that
the signal light was green and turned to amber as Mr. Pierce entered
the intersection.</p>
<p>[13]      On the other hand I am struck by two inescapable facts.
First, the fact that Mr. MacKinnon who was stopped next to Mr.
Williams did not proceed through the intersection because he knew it
would not be safe to do so. While to some extent I take Mr. Boyte’s
point that Mr. MacKinnon was, because of his experience with the
intersection “hyper aware” to the prospect of drivers being late, I


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point that Mr. MacKinnon was, because of his experience with the
intersection “hyper aware” to the prospect of drivers being late, I
cannot entirely dismiss the fact that he obviously exercised prudence
in not proceeding. The fact that Mr. Williams did not see Mr. Pierce’s
vehicle is not an answer. In fact, just to the opposite in my view.</p>
<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>
</blockquote>
<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>


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<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>
<blockquote>
<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>
</blockquote>


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Question Body: <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 &quot;lead defendant&quot;. 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


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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>


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<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 &quot;Wymyslo was substituted as the lead defendant, and the case was restyled Obergefell v. Wymyslo&quot;, but none of the documents in the references for that statement contain the term &quot;lead defendant&quot;. 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>


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<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 &quot;Trump's co-conspirators&quot;, whereas Trump himself is never referred to as a &quot;co-conspirator&quot;. That might suggest that Trump is alleged to be something like the &quot;lead conspirator&quot;, 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 &quot;lead defendant&quot; 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>


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Answer 1: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p>&quot;Lead defendant&quot; is not used, unless colloquially by some, but a comparable term would be &quot;principal defendant&quot; 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>
<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>
<blockquote>


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<blockquote>
<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>
<p><a href="https://www.cps.gov.uk/legal-guidance/drafting-indictment" rel="nofollow noreferrer">Source</a></p>
</blockquote>
<hr />


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<p><a href="https://www.cps.gov.uk/legal-guidance/drafting-indictment" rel="nofollow noreferrer">Source</a></p>
</blockquote>
<hr />
<p><sub>Although tagged <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a>, I have followed the guidance from the <a href="https://law.stackexchange.com/help/on-topic">LawSE Help Centre</a>: &quot;<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>&quot;</sub></p>


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Question Title: Typo in disclaimer - worst case scenario

Question Body: <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 &quot;may&quot; and replaced with &quot;June.&quot;</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>


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Answer 1: <h2>Garbled and ambiguous?</h2>
<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>
<p>Documents contain typos, that doesn’t necessarily make them ambiguous.</p>
<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>


Tags: united-states, liability, court


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Question Title: If someone robs a bank at which (s)he has an account, can the bank deduct that amount from the robber&#39;s account?

Question Body: <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>


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Answer 1: <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>
<p>Even if the bank has Bob on the security video feed, claiming that, &quot;As my name is Bob, I will shoot anyone who does not follow my instructions&quot;, and Bob left behind his driver's licence at the heist, the bank does not <em>know</em> that it was Bob.</p>
<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 (&quot;It was not me&quot; / &quot;I only took $1,000&quot; / whatever).</p>
<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>


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<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>
<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>
<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>


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Answer 2: <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 &quot;cause a loss&quot;.  They can also seize money for &quot;obligations&quot; though I don't know if that requires a trial or not.</p>
<blockquote>
<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>
<p>g. You cause a loss to BECU...</p>
<p>...Suspensions may take the form of a
temporary or permanent “hold” or “freeze” on your Account at our
discretion without prior notice to you...</p>
<p>... If we
terminate or close your Account, we will mail to the Primary Account Holder all funds in the Account, less any
obligations owed to BECU by any Account Holder...</p>
</blockquote>


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<p>... If we
terminate or close your Account, we will mail to the Primary Account Holder all funds in the Account, less any
obligations owed to BECU by any Account Holder...</p>
</blockquote>
<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>


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Question Title: Someone withdrew money from my bank account - what are my rights?

Question Body: <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>


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<p>I live in California.</p>


Answer 1: <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>


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<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>


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<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>

<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>

<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>


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<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>


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<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>

<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>


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<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>


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<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>


Answer 2: <p>You will need to identify a defendant in order to bring any claim.</p>


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Answer 2: <p>You will need to identify a defendant in order to bring any claim.</p>

<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>

<p>Forgery - <a href="http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&amp;group=00001-01000&amp;file=470-483.5" rel="nofollow">California Penal Code 470</a> makes it a crime to commit fraud by forging a signature.</p>

<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>


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<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>


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Answer 3: <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>
<p><strong>A bank account is a debt</strong> - you have loaned the bank money, repayable on your demand.</p>
<p>Your account balance is not &quot;your money&quot; - it is an <em>accounting of how much they owe you</em> (or if you have an overdraft, how much you owe them).</p>
<p>It is a debt payable on demand, and a cheque is such a demand.</p>
<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>
<blockquote>
<p>&quot;So somebody pretended they were me, asked for money, and you believed them. How is that my problem?&quot;</p>
</blockquote>
<p>It does not matter:</p>
<ul>
<li>how good the forgery was,</li>


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<p>&quot;So somebody pretended they were me, asked for money, and you believed them. How is that my problem?&quot;</p>
</blockquote>
<p>It does not matter:</p>
<ul>
<li>how good the forgery was,</li>
<li>how much care they took</li>
<li>whether they were negligent or not</li>
</ul>
<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>
<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>
<p><strong>Who decides</strong></p>
<p>The court decides, if it goes to court.</p>
<p>Once you have made a valid demand for full payment, you can sue them for the full amount you are owed.</p>
<p>Generally you must say something like this:</p>
<ul>


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<p>Once you have made a valid demand for full payment, you can sue them for the full amount you are owed.</p>
<p>Generally you must say something like this:</p>
<ul>
<li><strong>What you want:</strong> I want such-and-such amount of money</li>
<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>
<li><strong>What you want the court to do:</strong> And I want the court to order them to pay me.</li>
</ul>
<p>You will have to produce evidence. This might be:</p>
<ul>
<li>Your cheque stubs, proving that you didn't write the cheque</li>
<li>Your testimony on oath, swearing that you didn't write or authorize the payment.</li>
<li>Proof you were not in the place where the payment was made.</li>
<li>Some other form of evidence.</li>
</ul>
<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>


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<li>Some other form of evidence.</li>
</ul>
<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>
<p>The court will decide who they believe, and you will either get your money, or not.</p>
<p><strong>What to do</strong></p>
<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>
<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>
<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>


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<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>
<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>
<p>But be careful:</p>
<ul>
<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>
<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>
</ul>


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Question Title: What are the legal ramifications for someone whose birth was concealed?

Question Body: <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>


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Answer 1: <p>Does this person have witnesses to his existence?  Particularly before the age of five?</p>
<p>Under 8 U.S. Code § 1401, native-born citizens include</p>
<blockquote>
<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>
</blockquote>
<p>If he appears out of nowhere, he is likely to be suspect of illegal immigration.  Age may be a factor there, too.</p>


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Answer 2: <blockquote>
<p>As a result, this individual has no SSN and might not legally exist.</p>
</blockquote>
<p>A living person exists.  It is not necessary to be registered anywhere to exist.</p>
<blockquote>
<p>Could they be in legal jeopardy in any way?</p>
</blockquote>
<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>
<blockquote>
<p>Can the US or their state of birth (lets say WV) compel them to register in some way?</p>
</blockquote>


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<blockquote>
<p>Can the US or their state of birth (lets say WV) compel them to register in some way?</p>
</blockquote>
<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>


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Answer 3: <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>
<blockquote>
<p>If you were born in the United States, you do not need to apply to
USCIS for any evidence of citizenship. Your birth certificate issued
where you were born is proof of your citizenship.</p>
</blockquote>
<p>There is a footnote explaining this does necessarily apply to children of foreign diplomats.</p>
<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>


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<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>
<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>
<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>


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<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&amp;art=5&amp;section=10" rel="nofollow noreferrer">relevant WV law states</a></p>
<blockquote>
<p>(a) A certificate of birth for each live birth which occurs in this
state shall be filed with the section of vital statistics...</p>
<p>[if the birth is outside an institution the birth shall be reported
by]</p>
<p>(1) The physician in attendance at or immediately after the birth;</p>
<p>(2) Any other person in attendance at or immediately after the birth;</p>
<p>(3) The father or the mother, or, in the absence of the father and the
inability of the mother, the person in charge of the premises where
the birth occurred; or</p>
<p>(4) Any other person qualified by the department by rule to establish
the facts of birth.</p>
</blockquote>


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the birth occurred; or</p>
<p>(4) Any other person qualified by the department by rule to establish
the facts of birth.</p>
</blockquote>
<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>


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Question Title: In what forum would Iran sue Pakistan in for damages?

Question Body: <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>


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Answer 1: <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>


Tags: international, jurisdiction


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Question Title: Where when and how did the idea of “reasonableness” originate?

Question Body: <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>


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Answer 1: <p>See Harold J. Berman, &quot;The Origins of Historical Jurisprudence: Coke, Selden, Hale&quot; (1994) 103 Yale Law Journal 1651, p. 1691, n. 101:</p>
<blockquote>
<p>the translation of &quot;reason&quot; into &quot;reasonableness&quot; and the exaltation of &quot;common sense&quot; are English developments of the seventeenth century, to which Coke contributed.</p>
</blockquote>
<p>At p. 1718-19:</p>
<blockquote>
<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>
</blockquote>
<p>See also S.E. Thorne, &quot;Dr. Bonham's Case&quot; (1938) 54 Law Quarterly Review 543, p. 543:</p>
<blockquote>


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</blockquote>
<p>See also S.E. Thorne, &quot;Dr. Bonham's Case&quot; (1938) 54 Law Quarterly Review 543, p. 543:</p>
<blockquote>
<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>
</blockquote>


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</blockquote>
<p>This concept as a ground of review arose in the context of &quot;conflict between Parliament and the Crown over the nature and limits of prerogative and the common law&quot; (Michael Foran, &quot;The Constitutional Foundations of Reasonableness Review: Artificial Reason and Wrongful Discrimination&quot; (2022) 26:3 Edinburgh Law Review 295, p. 299).</p>
<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: &quot;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>.&quot;</p>


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<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>


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Answer 2: <p>The <a href="https://en.wikipedia.org/wiki/Reasonable_person" rel="nofollow noreferrer">&quot;reasonable man&quot; 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>


Tags: legal-terms, legal-history


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Question Title: When did indictments stop saying people were &quot;moved and seduced by the instigation of the Devil&quot;?


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Question Body: <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>


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</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>: &quot;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.&quot;</li>


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<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>: &quot;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 [...]&quot;</li>


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<li><a href="https://www.famous-trials.com/burr/159-indictment" rel="noreferrer">Federal indictment for treason, etc., August 1807</a>: &quot;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 [...]&quot;</li>
</ol>


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</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>


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<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>


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Answer 1: <p>It appears that:</p>
<ul>
<li>This language was seen as a bit ridiculous and unnecessary even at the time, and more so as the 19th century progressed.</li>
<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>
<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>


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<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>
</ul>
<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>
<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&amp;seq=346" rel="nofollow noreferrer">section 501 in volume 1</a>:</p>
<blockquote>


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<blockquote>
<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 &quot;not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil.&quot; 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: &quot;When men do commit a crime for which they are to be indicted, they are usually moved by the instigation of the devil.&quot; Yet even in this view, they could never have been required; because in law, no &quot;instigation&quot; to crime justifies the doer, so that the devil's instigation is wholly <em>immaterial</em>.</p>
</blockquote>


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</blockquote>
<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&amp;seq=217" rel="nofollow noreferrer">at 240</a> that these words concerning the Devil &quot;though usual, are not necessary to be inserted&quot;, elaborating that</p>
<blockquote>
<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>
</blockquote>


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</blockquote>
<p>There are several other textbooks that discuss related but less colorful terms, such as &quot;wilfully&quot; or &quot;wickedly&quot;, 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>
<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&amp;lpg=PA328&amp;ots=UwmVKb2q0K&amp;pg=PA349#v=onepage&amp;q&amp;f=false" rel="nofollow noreferrer">section 11 of the entry on &quot;Indictment&quot;</a> (references omitted) in volume 3 (London: 26th ed., 1831):</p>
<blockquote>


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<blockquote>
<p>The words &quot;<em>wickedly, maliciously, of his own wicked and corrupt mind, being a person of evil disposition, &amp;c.</em>&quot; 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>
</blockquote>


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</blockquote>
<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 &quot;to be informed of the nature and cause of the accusation&quot;) 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>


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<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&amp;gbpv=1&amp;pg=PA1365-IA34&amp;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 &quot;wickedly and maliciously did endeavour to stir up, provoke, and excite [someone else] to challenge the defendant to fight a duel with him&quot;. Citing <a


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among other things that Philipps &quot;wickedly and maliciously did endeavour to stir up, provoke, and excite [someone else] to challenge the defendant to fight a duel with him&quot;. 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&amp;vq=formal&amp;pg=PA2666#v=snippet&amp;f=false" rel="nofollow noreferrer"><em>R v Woodfall</em> (1770) 5 Burr 2667</a>, he said that terms of opprobrium like &quot;wickedly&quot; were &quot;mere formal inferences of law&quot; 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 &quot;the usual epithets&quot;, and the judge told the jury to ignore them but concentrate on the alleged facts: they were not being asked to determine whether the


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to what the judge described as &quot;the usual epithets&quot;, 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>


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<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 &quot;[not] quite abolished&quot;). 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 &quot;stock&quot; language.</p>


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Question Title: Is a &quot;login timestamp&quot; considered as personal data according to GDPR?

Question Body: <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>


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Answer 1: <h2>You ask the wrong question first</h2>
<p>What do you save in the database? Let's take an example of a door:</p>
<ul>
<li>Do you have a legitimate interest to know/save who passed this door?</li>
<li>Do you have a legitimate interest to know/save when the door was opened?</li>
<li>Do you have a legitimate interest to know/save both?</li>
</ul>
<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>
<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>
<p>Now, which of the data is Personal Identifiable Data for you?</p>
<ul>


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<p>Now, which of the data is Personal Identifiable Data for you?</p>
<ul>
<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.
<ul>
<li>It becomes PII if you connect it with a person.</li>
</ul>
</li>
<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.
<ul>
<li>e.g. one of all the 20 000 employees in a facility is just saying &quot;an employee&quot; 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>
</ul>
</li>
<li>The Employee ID or Card would be most definitely PII if saved.
<ul>
<li>Similar, if the login date is saved to the account list on some server.</li>
</ul>
</li>


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</ul>
</li>
<li>The Employee ID or Card would be most definitely PII if saved.
<ul>
<li>Similar, if the login date is saved to the account list on some server.</li>
</ul>
</li>
<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 &quot;The door was opened/closed&quot; but not who did it, to count customers or schedule maintenance.
<ul>
<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>
</ul>
</li>
</ul>


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</ul>
</li>
</ul>
<p>It is enough that the information from different information sources compiled can become enough to say &quot;it was one of these few people&quot;, 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>
<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>
<h3>Definitions</h3>


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<h3>Definitions</h3>
<p>The <a href="https://gdpr.eu/article-4-definitions/" rel="noreferrer">GDPR defines PII in Article 4</a></p>
<blockquote>
<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>
</blockquote>
<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>
<blockquote>
<p>PII is defined as information:</p>


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<blockquote>
<p>PII is defined as information:</p>
<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>
<p>(ii) by which an agency intends to identify specific individuals in conjunction with other data elements, i.e., indirect identification.</p>
</blockquote>


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Answer 2: <p>The timestamp being among the data related to &quot;an identified or identifiable natural person (‘data subject’)&quot;, the user, yes it is personal data.</p>
<p><a href="https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32016R0679&amp;from=EN#d1e1489-1-1" rel="noreferrer">GDPR Article 4(1)</a>:</p>
<blockquote>
<p>‘personal data’ means any information relating to an identified or
identifiable natural person (‘data subject’); an identifiable natural
person is one who can be identified, directly or indirectly, in
particular by reference to an identifier such as a name, an
identification number, location data, an online identifier or to one
or more factors specific to the physical, physiological, genetic,
mental, economic, cultural or social identity of that natural person;</p>
</blockquote>


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or more factors specific to the physical, physiological, genetic,
mental, economic, cultural or social identity of that natural person;</p>
</blockquote>
<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>
<blockquote>
<p>Personal data is any information that relates to an identified or
identifiable living individual. Different pieces of information, which
collected together can lead to the identification of a particular
person, also constitute personal data.</p>
<p>Personal data that has been de-identified, encrypted or pseudonymised
but can be used to re-identify a person remains personal data and
falls within the scope of the GDPR.</p>
<p>Personal data that has been rendered anonymous in such a way that the
individual is not or no longer identifiable is no longer considered
personal data. For data to be truly anonymised, the anonymisation must


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individual is not or no longer identifiable is no longer considered
personal data. For data to be truly anonymised, the anonymisation must
be irreversible. ...</p>
</blockquote>


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Question Body: <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>


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<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>


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Answer 1: <h2>As far as the legal powers of the organisation(s) allow</h2>
<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>
<p>Divisions in executive government are practical rather than legal. That is, the executive can carry out &quot;intelligence&quot; and &quot;law enforcement&quot; 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>


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Answer 2: <h2>Intelligence <strong>is</strong> Law Enforcement.</h2>
<p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></p>
<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>


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<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>
<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>
<ul>
<li>investigate threats to the german democracy, such as insurgent groups or terrorist groups inside Germany.
<ul>
<li>being part of such a group is a crime.</li>
</ul>
</li>
<li>Finding spies inside Germany.
<ul>
<li>spying in Germany is a crime.</li>
</ul>
</li>


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<ul>
<li>being part of such a group is a crime.</li>
</ul>
</li>
<li>Finding spies inside Germany.
<ul>
<li>spying in Germany is a crime.</li>
</ul>
</li>
<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>
</ul>


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Question Title: Is there any country in the EU that forbids ritual cattle slaughter?

Question Body: <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>


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Answer 1: <p>Quite the contrary. In most European countries, shechita is - at least under certain conditions - legal.</p>
<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>
<p>Only in the blue-marked countries is it generally forbidden; in the green-marked countries prior anaesthesia is required.</p>
<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>
<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>


Tags: european-union


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Question Title: Does withholding non-medical information affect medical consent?

Question Body: <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>


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Answer 1: <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 &quot;patient breaking up with a directed donor&quot;, 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


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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>


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<p>I will mention that</p>
<blockquote>
<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>
</blockquote>


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</blockquote>
<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>
<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>


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Question Body: <p>Maybe one of the fields that has the most &quot;ageism&quot; is programming and software engineering jobs.</p>
<p>There were multiple times I hear of the CEO or SVP at the final approval stage: &quot;we want to hire a more junior person&quot;, 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>


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<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, &quot;if we sue, that means these cases are flying all over the sky&quot; (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 &quot;rejected. We want a more junior person.&quot;</p>


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Answer 1: <blockquote>
<p>The Age Discrimination in Employment Act of 1967 (ADEA) protects
certain applicants and employees 40 years of age and older from
discrimination on the basis of age in hiring, promotion, discharge,
compensation, or terms, conditions or privileges of employment.</p>
</blockquote>
<ul>
<li><a href="https://www.dol.gov/general/topic/discrimination/agedisc" rel="noreferrer">U.S. Department of Labor</a>.</li>
</ul>
<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>
<p>Usually, this is a minimum age for certain jobs between age 12 and 21 depending upon the nature of the work.</p>
<p>Apart from these limitations, discrimination based upon age in employment is not prohibited in the United States.</p>


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<p>Apart from these limitations, discrimination based upon age in employment is not prohibited in the United States.</p>
<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>


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Answer 2: <h2>“A more junior person” is not <em>necessarily</em> age discrimination</h2>
<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>
<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>
<h2>Is age discrimination illegal?</h2>
<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" aria-label="show questions tagged &#39;australia&#39;" rel="tag" aria-labelledby="tag-australia-tooltip-container">australia</a></p>
<p><a href="https://humanrights.gov.au/our-work/age-discrimination/about-age-discrimination" rel="nofollow noreferrer">Yes</a></p>


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<p><a href="https://humanrights.gov.au/our-work/age-discrimination/about-age-discrimination" rel="nofollow noreferrer">Yes</a></p>
<blockquote>
<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>
</blockquote>


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Answer 3: <p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></p>
<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>
<blockquote>
<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>
</blockquote>
<p>Translation:</p>
<blockquote>


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</blockquote>
<p>Translation:</p>
<blockquote>
<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>
</blockquote>
<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>


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<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>


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<p>You can also (and the government is the biggest offender here) hire only people with a specific education. For example many government jobs &quot;require&quot; 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>
<p>What you mentioned, &quot;junior&quot; vs &quot;senior&quot; has nothing to do with age. Those are experience indicators. A really good developer might be evaluated as &quot;senior&quot; 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 &quot;junior&quot;, 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>


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<p>So <em>&quot;I want someone younger&quot;</em> is illegal discrimination.</p>
<p><em>&quot;I want someone less experienced&quot;</em> is stupid, but legal.</p>
<p>But <em>&quot;I want someone cheaper, even if that means they are less experienced&quot;</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>


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Question Title: Was this a case of negligent homicide, and have any other offences been committed here?


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Question Body: <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>


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<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>


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<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>


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<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>


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</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>


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Answer 1: <blockquote>
<p>Does any American state have a statute under which Joanne would be
liable for her son's death?</p>
</blockquote>
<p>Probably not. None of the mother's conduct seems like a basis for a homicide prosecution.</p>
<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>
<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>


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<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>
<blockquote>
<p>In 2017, a Massachusetts court convicted Michelle Carter of
manslaughter for encouraging the suicide of Conrad Roy by text
message, but imposed a sentence of only fifteen months. The conviction
was unprecedented in imposing homicide liability for verbal
encouragement of apparently voluntary suicide. Yet if Carter killed,
her purpose that Roy die arguably merited liability for murder and a
much longer sentence. This Article argues that our ambivalence about
whether and how much to punish Carter reflects suicide’s dual
character as both a harm to be prevented and a choice to be respected.
As such, the Carter case requires us to choose between competing


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whether and how much to punish Carter reflects suicide’s dual
character as both a harm to be prevented and a choice to be respected.
As such, the Carter case requires us to choose between competing
conceptions of criminal law, one utilitarian and one libertarian. A
utilitarian criminal law seeks to punish inciting suicide to reduce
harm. A libertarian criminal law, on the other hand, justifies
voluntary suicide as an exercise of liberty, and incitement of suicide
as valuable speech. Utilitarian values are implicit in the
foreseeability standards prevailing in the law of causation, but
libertarian values are implicit in the reluctance of prosecutors to
seek, and legislatures to define, homicide liability for assisting
suicide. The prevalence of statutes punishing assisting—but not
encouraging—suicide as a nonhomicide offense reflects a compromise
between these values. These statutes are best interpreted as imposing
accomplice liability for conduct left unpunished for two antithetical


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between these values. These statutes are best interpreted as imposing
accomplice liability for conduct left unpunished for two antithetical
reasons: it is justified in so far as the suicide is autonomous and
excused in so far as the suicide is involuntary. This explains why
aiding suicide is punished, but less severely than homicide. Yet even
these statutes would not punish Carter’s conduct of encouragement
alone. Her conviction although seemingly required by prevailing
causation doctrine, is unprecedented.</p>
</blockquote>
<p>Guyora Binder and Luis Chiesa, &quot;The Puzzle of Inciting Suicide&quot; 56 American Criminal Law Review 65 (2019).</p>
<blockquote>
<p>In any jurisdiction, could anyone but Joanne, in light of the
aforementioned circumstances, face liability for Jordan's death?</p>
</blockquote>


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<blockquote>
<p>In any jurisdiction, could anyone but Joanne, in light of the
aforementioned circumstances, face liability for Jordan's death?</p>
</blockquote>
<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>
<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>


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Answer 2: <h2>On the facts as presented, there <em>might</em> be some criminality here</h2>
<p><strong>But it all depends on facts not stated</strong></p>
<p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="tag-new-south-wales-tooltip-container">new-south-wales</a></p>
<h2>The son</h2>
<p>Suicide is no longer a crime in NSW.</p>
<h2>The mother</h2>
<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>
<h2>The bullies</h2>
<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>


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<h2>The bullies</h2>
<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>
<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>
<p>There are Commonwealth laws against cyber-harassment but the OP is silent on how the bullying happened.</p>
<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>
<p>Section 31C makes it a crime to incite suicide but there is no evidence of that in the OP.</p>


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<p>Section 31C makes it a crime to incite suicide but there is no evidence of that in the OP.</p>
<h2>The school</h2>
<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>
<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>


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Question Title: Can a woman living in Brazil collect child support from someone in the United States?

Question Body: <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 1: <blockquote>
<p>Can a woman living in Brazil collect child support from someone in the
United States?</p>
</blockquote>
<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>
<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>
<p>Generally, that would open the door to child custody proceedings as well in the same, or a parallel case.</p>


Tags: united-states, child-support, brazil


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Question Title: Is deliberate radio interference a crime?

Question Body: <p>I know that it is forbidden by FCC regulations to deliberately interfere with radio communications, but is it a crime?</p>


Answer 1: <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>
<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>


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Answer 2: <p><strong>United Kingdom</strong></p>
<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>
<blockquote>
<p><strong>68 Deliberate interference</strong></p>
<p>(1) A person commits an offence if he uses apparatus for the purpose of interfering with wireless telegraphy.</p>
</blockquote>
<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>
<blockquote>
<p><strong>116 “Wireless telegraphy”</strong></p>
<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>


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<p>(2) This subsection applies to electromagnetic energy of a frequency not exceeding 3,000 gigahertz that —<br />
   (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 />
   (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>
</blockquote>


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Answer 3: <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>
<blockquote>
<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>
</blockquote>


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</blockquote>
<p>And jail time is doubled for repeat offenders.</p>
<blockquote>
<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>
</blockquote>


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Question Title: Are Drone Intrusion Prevention Systems (Drone IPS) systems illegal?

Question Body: <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>


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<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>


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<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>


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<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>


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<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>


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Answer 1: <p>For the USA, the FCC has a few words to say on the subject:</p>
<blockquote>
<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.”
(<a href="https://transition.fcc.gov/eb/jammerenforcement/jamfaq.pdf" rel="nofollow noreferrer">https://transition.fcc.gov/eb/jammerenforcement/jamfaq.pdf</a>)</p>
</blockquote>
<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>
<p>This is the closest thing to precedent I could find, related specifically to WiFi
.


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<p>This is the closest thing to precedent I could find, related specifically to WiFi
.
That 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>


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<ul>
<li><p>Flying within Class G airspace (max 400 ft.) over private property without permission is trespassing (min 500 ft.) </p></li>
<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>
<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>


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<li><p>FAA regulations explicitly disallow any attempt at "towing" by a craft in flight of another craft in flight.  </p></li>
<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>
<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>
<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>
</ul>


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<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>


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<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>


Answer 3: <p>UK-based answer:</p>


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Answer 3: <p>UK-based answer:</p>

<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>

<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>

<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>

<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>


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<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>


Tags: united-states, united-kingdom, computer-misuse-act, radio, fcc


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Question Title: I want to know if i have the right to push someone if they slapped me in self defense

Question Body: <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>


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Answer 1: <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>
<ul>
<li>then it is <strong>not</strong> self-defence
<ul>
<li>you (<strong>or</strong> she) did not <strong>prevent a present</strong> unlawful attack</li>
</ul>
</li>
</ul>
<p>If it is clear that you are <strong>going to be</strong> slapped</p>
<ul>
<li>then pushing her away, in a reasonable manor, is self-defence
<ul>
<li>you <strong>prevented a present</strong> unlawful attack</li>
</ul>
</li>
</ul>
<p>What is considered <strong>reasonable</strong> will later be determined by a judge.</p>
<hr />
<blockquote>
<p><a href="https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0186" rel="nofollow noreferrer">§ 32 - Self-defence StGB</a><br />


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<hr />
<blockquote>
<p><a href="https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0186" rel="nofollow noreferrer">§ 32 - Self-defence StGB</a><br />
(2) ‘Self-defence’ means any defensive action which is necessary <strong>to avert a present</strong> unlawful attack on oneself or another.</p>
</blockquote>
<hr />
<p><strong>Sources</strong>:</p>
<ul>
<li><a href="https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0186" rel="nofollow noreferrer">§ 32 - Self-defence StGB</a></li>
</ul>


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Question Title: Easy way to check if libel has been committed?

Question Body: <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 &quot;lawyer up&quot; if we want to be safe?</p>


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Answer 1: <blockquote>
<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 &quot;lawyer up&quot; if we want to be safe?</p>
</blockquote>
<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>
<p>If the threats are empty then you might want to hire a lawyer to call their bluff.
Otherwise 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>


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Otherwise 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>
<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>
<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>


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<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>


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Question Title: Murder due to temporary insanity

Question Body: <p>Due to an unfortunate event outside of his control, &quot;Juan&quot; temporarily goes insane. Due to his insanity, he commits an extremely heinous crime (say, for example, a school shooting.) Still a raving lunatic, he surrenders to the police.</p>
<p>While awaiting trial, Juan receives medical treatment that causes him to stop being insane.</p>
<p>Legally speaking, what happens? From what I understand, an insanity plea results in being committed to a mental institution indefinitely. However, Juan is no longer insane and doesn't require further treatment.</p>
<p>N.B. This question was originally worded quite differently. My revision was primarily to remove unnecessary details; the core of the question remains the same.</p>


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Answer 1: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>The terminology in Canada &quot;not criminally responsible reason on account of mental disorder&quot; (NCRMD) (<em>Criminal Code</em>, <a href="https://laws-lois.justice.gc.ca/eng/acts/C-46/section-16.html" rel="nofollow noreferrer">s. 16</a>). A finding of NCRMD is a special verdict that results in the accused being placed under the jurisdiction of the Review Board.<sup>1</sup></p>
<p>Assuming for the sake of analysis that such an outcome is made out in the circumstances that you've described (much would depend on the expert evidence), such an outcome would not necessarily lead to indefinite detention.</p>


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<p><a href="https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr06_1/p1.html#sec11" rel="nofollow noreferrer">The options available are</a>:</p>
<ul>
<li>absolute discharge;</li>
<li>conditional discharge; or</li>
<li>detention in custody in a hospital</li>
</ul>
<p>And even when in detention in a hospital, there is a regular review and the person is released when detention is no longer necessary for public safety.</p>
<p>The burden is not on the detained to show that the chance of a repeat is essentially zero. That would be a great exaggeration of the barrier to release and incorrectly reverses the burden. Instead, the Review Board must find evidence that there is a significant continuing risk to the public, at the time of the hearing, in order to keep the person in custody. <strong>There is no burden on the accused or on anyone to rule out future occurrences with any certainty</strong>.</p>


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<p><a href="https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr06_1/p1.html#sec11" rel="nofollow noreferrer">Latimer and Lawrence explain</a>:</p>
<blockquote>
<p>The Supreme Court of Canada further clarified in <em><a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1711/index.do" rel="nofollow noreferrer">R. v. Winko</a></em> that Section 672.54 does not create a presumption of dangerousness. In other words, while the protection of society is paramount, there must be clear evidence of a significant risk to the public before a court or Review Board can maintain control over an accused through the imposition of a conditional discharge or detention order.</p>
</blockquote>
<p>Some extracts from <em>Winko</em>:</p>
<blockquote>
<p>Restrictions on his or her liberty can only be justified if, <strong>at the time of the hearing</strong>, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat</p>
</blockquote>
<blockquote>


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</blockquote>
<blockquote>
<p><strong>there is never any legal burden on the NCR accused</strong> to show that he or she does not pose a significant threat to the safety of the public</p>
</blockquote>
<blockquote>
<p><strong>A past offence committed while the NCR accused suffered from a mental illness is not, by itself, evidence that the NCR accused <em>continues</em> to pose a significant risk to the safety of the public</strong>.</p>
</blockquote>
<hr />
<p><sup>1. This is one major difference between NCRMD and the defence of automatism, which is a defence based on negation of the elements of the offence and would result in a standard acquittal if successful, with no jurisdiction for the Review Board to impose detention or conditions.</sup></p>


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Answer 2: <p>If is is <em>still</em> insane, he can't be tried. If Juan is competent to stand trial (is cured), he may enter an &quot;insanity plea&quot;. Following Washington law, that means per <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=10.77&amp;full=true" rel="noreferrer">RCW 10.77.030</a> that within ten days of arraignment (or more with court permission), he files written notice of the intent to rely on that defense. If he provides satisfactory evidence that he was insane at the time, he is acquitted. The jury must also determine whether Juan is a current danger, and since by the hypothetical he is no longer insane, he will not be committed to a mental hospital. The jury answers a series of questions, following RCW 10.77.110: is the defendant a substantial danger to other persons unless kept under further control by the court or other persons or institutions? If so, does the defendant present a substantial likelihood of committing criminal acts jeopardizing public


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persons unless kept under further control by the court or other persons or institutions? If so, does the defendant present a substantial likelihood of committing criminal acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions, and is it in the best interests of the defendant and others that the defendant be placed in treatment that is less restrictive than detention in a state mental hospital?</p>


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<p>There is no automatic indefinite commitment to a mental institution for entering an insanity plea (in fact, committing him is only possible after an acquittal, and cannot be the result of merely entering a plea).</p>


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Answer 3: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p>There are a number of different mental disorders - and related defences - recognised in law, but to focus on the OP's question concerning insanity which has a specific meaning...</p>
<p>The defence of insanity can <em>only</em> be successful after a trial (i.e. it cannot be accepted by the prosecution) and only applies when the jury determines the defendant not guilty by reason of insanity according to the <a href="https://en.wikipedia.org/wiki/M%27Naghten_rules" rel="noreferrer">M'Naghten rules</a>, i.e. &quot;did the defendant know what he was doing, or, if so, that it was wrong?&quot;</p>


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<p>This finding is called a Special Verdict under <a href="https://www.legislation.gov.uk/ukpga/Vict/46-47/38/section/2?timeline=false" rel="noreferrer">section 2(1)</a>, Trial Of Lunatics Act 1883:</p>
<blockquote>
<p><strong>2 Special verdict where accused found guilty, but insane at date of act or omission charged, and orders thereupon.</strong></p>
<p>(1) Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, <strong>the jury shall return a special verdict that the accused is not guilty by reason of insanity.</strong></p>
</blockquote>


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</blockquote>
<p>For awareness, a person deemed insane in this way is not necessarily &quot;<em>committed to a mental institution indefinitely.</em>&quot;</p>
<p>Instead, sentencing is determined on a case-by-case basis under <a href="https://www.legislation.gov.uk/ukpga/1964/84/section/5?timeline=false" rel="noreferrer">section 5(2)</a>, Criminal Procedure (Insanity) Act 1964</p>
<blockquote>
<p><strong>5 Powers to deal with persons not guilty by reason of insanity or unfit to plead etc.</strong></p>
<p>...</p>
<p>(2) The court shall make in respect of the accused—</p>
<ul>
<li><p>(a) a hospital order (with or without a restriction order);</p>
</li>
<li><p>(b) a supervision order; or</p>
</li>
<li><p>(c) an order for his absolute discharge.</p>
</li>
</ul>
</blockquote>


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Question Title: In American criminal law, do prosecutors who seek to prosecute a defendant need to have evidence of the defendant&#39;s guilt beyond a reasonable doubt?

Question Body: <p>Would the judge in a criminal trial consider a prosecutor's statement that some evidence is representative of a defendant's guilt is a <em>false statement</em> by seeking the evidence to be inferred as <strong>conclusive</strong> without being thoroughly tested?</p>


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Answer 1: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>The ethical standard for U.S. prosecutions, under <a href="https://www.cobar.org/Portals/COBAR/Repository/12.1.22/Rule%203.8%20-%20Special%20Responsibilities%20of%20a%20Prosecutor.pdf?ver=h4k_BG_0T1kn7Rdgo8sLiQ%3D%3D" rel="nofollow noreferrer">Rule of Professional Conduct 3.8</a> (ethical rules have parallel numbering in every U.S. jurisdiction and there is little variation from jurisdiction to jurisdiction for this part of this ethical rule) is to refrain from prosecuting a charge that is not supported by probable cause.</p>


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<p>Probable cause is also the standard used by a grand jury, and in an adversarial pre-trial hearing, to screen charges before they go to trial. It is also the standard for issuing an arrest warrant.</p>
<p>The higher threshold of proof beyond a reasonable doubt is the standard for convicting a defendant at a trial on the merits of the defendant's guilt or innocence, it is not the standard for bringing a criminal charge in the first place. The job of the prosecutor at trial is to convince the trier of fact (usually a jury, but sometimes a judge in a bench trial) that the defendant is guilty beyond a reasonable doubt. If the case was thin on evidence when commenced, this may require law enforcement and the prosecutor's office to develop evidence after the criminal charges are brought.</p>


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<p>As a practical matter, a prosecutor wants to prosecute cases that can be proven beyond a reasonable doubt at trial, and will usually try to do that. But a belief that a case can be proven beyond a reasonable doubt at trial is not an ethical requirement for prosecutors and is not a ground for imposing sanctions against a prosecutor. Of course, individual prosecuting attorneys' offices are free to establish their own standards that are more rigorous as an internal policy for bringing criminal cases.</p>


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Answer 2: <p>Answer according to the OP's comment:</p>
<blockquote>
<p>The question is in the title. Focus on answering the question...</p>
</blockquote>
<p>Namely:</p>
<blockquote>
<p>In American criminal law, do prosecutors who seek to prosecute a defendant claim to have evidence of the defendant's guilt beyond a reasonable doubt?</p>
</blockquote>
<p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p><strong>SHORT ANSWER</strong></p>
<p>Although still used occasionally by some, &quot;<em>beyond a reasonable doubt</em>&quot; is not a prosecutor's benchmark.  It is a colloquial courtroom phrase (more often than not you will now hear &quot;<em>must be sure that the defendant is guilty</em>&quot; these days).</p>


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<p>It  Instead, the criterion applied is whether there is &quot;<em>sufficient evidence to provide a realistic prospect of conviction and if so, is a prosecution in the public interest?</em>&quot;</p>
<p><strong>LONG ANSWER</strong></p>
<p>The Crown Prosecution Service (CPS) decide whether or not to charge a suspect<sup>1</sup> by applying one of two tests depending on the circumstances:</p>
<p><a href="https://www.cps.gov.uk/publication/code-crown-prosecutors" rel="nofollow noreferrer"><strong>The Full Code Test</strong></a></p>
<p>This is applied in the majority of cases, and has two stages:</p>
<ul>
<li>The Evidential Stage</li>
</ul>
<p>The relevant extracts are:</p>
<blockquote>
<p>Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge [<em>or a judicial finding they did the relevant act but are not guilty by reason of insanity</em>]</p>


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<p>A case which does not pass the evidential stage must not proceed</p>
<p>[it] is based on the prosecutor’s objective assessment of the evidence [which] means that an objective, impartial and reasonable jury [etc] is more likely than not to convict the defendant of the charge alleged. <strong>This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty</strong></p>
</blockquote>
<ul>
<li>The Public Interest Stage</li>
</ul>
<p>The prosecutor must consider a number of factors, including: the seriousness and circumstances of the offence, the suspect's age and culpability, whether a prosecution is a proportionate response, and whether sensitive intelligence sources need protecting.</p>
<p><a href="https://www.cps.gov.uk/publication/code-crown-prosecutors" rel="nofollow noreferrer"><strong>The Threshold Test</strong></a></p>


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<p><a href="https://www.cps.gov.uk/publication/code-crown-prosecutors" rel="nofollow noreferrer"><strong>The Threshold Test</strong></a></p>
<p>This test is applied when an immediate charging decision is required, but the Full Code Test cannot be satisfied as there are outstanding enquiries or evidence to be collected.</p>
<p>There are five conditions to satisfy for this test to be applied:</p>
<ul>
<li><p>There are reasonable grounds to suspect that the person to be charged has committed the offence</p>
</li>
<li><p>Further evidence can be obtained to provide a realistic prospect of conviction</p>
</li>
<li><p>The seriousness or the circumstances of the case justifies the making of an immediate charging decision</p>
</li>
<li><p>There are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do so</p>
</li>
<li><p>It is in the public interest to charge the suspect</p>
</li>
</ul>
<hr />


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</li>
<li><p>It is in the public interest to charge the suspect</p>
</li>
</ul>
<hr />
<p><sup>1</sup>For completeness, the police also have a limited power to charge a suspect without CPS advice.</p>
<hr />
<p><sub>Although the title references &quot;<em>American criminal law</em>&quot;, I have answered according to the <a href="https://law.stackexchange.com/help/on-topic">LawSE Help Centre</a>: &quot;<em>we expect and encourage answers dealing with other jurisdictions ... please tag your answer using the tag markdown: [tag: some-tag]</em>&quot;</sub></p>


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Answer 3: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<h3>Charging decisions are at the core of prosecutorial discretion and cannot be challenged for the reason you posit</h3>
<p>A criminal indictment or the decision to charge <strong>cannot be challenged</strong> on the basis that the prosecutors did not possess evidence proving the offence beyond a reasonable doubt. That is a matter left to the conclusion of the trial.</p>
<p>The decision to bring a charge is at the core of prosecutorial discretion. See <a href="https://www.canlii.org/en/ca/scc/doc/2011/2011scc34/2011scc34.html" rel="nofollow noreferrer"><em>R. v. Nixon</em>, 2011 SCC 34, para. 21</a>:</p>
<blockquote>


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<blockquote>
<p>Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following:  (a) <strong>the discretion whether to bring the prosecution of a charge</strong> laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether...</p>
<p>Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for.  Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. ...</p>
</blockquote>


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</blockquote>
<p><strong>The decision to charge can only be reviewed for <em>abuse of process</em></strong> which asks (<em>Nixon</em>, para. 40):</p>
<blockquote>
<p>whether “compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency”, or where the proceedings are “oppressive or vexatious”</p>
</blockquote>
<h3>Crown prosecution offices <em>do</em> consider the likelihood of conviction when deciding whether to charge</h3>


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</blockquote>
<h3>Crown prosecution offices <em>do</em> consider the likelihood of conviction when deciding whether to charge</h3>
<p>Provinces each have their own charging policies, but British Columbia's is a typical example. A charge will generally not be brought unless there is a substantial likelihood of conviction and the public interest requires a prosecution (see <a href="https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1-charge-assessment-guidelines.pdf" rel="nofollow noreferrer">Crown Charge Assessment Guidelines</a>). In exceptional cases, charges may be approved on a lesser standard of &quot;a reasonable prospect of conviction.&quot; In making these assessments, prosecutors need not be themselves convinced beyond a reasonable doubt, but are directed to <em>consider</em> the &quot;prosecution’s burden of proof beyond a reasonable doubt.&quot;</p>


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<h3>Proof beyond a reasonable doubt is not a standard that can be determined by someone other than the trier of fact</h3>
<p>See <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1543/index.do" rel="nofollow noreferrer"><em>R. v. Lifchus</em>, [1997] 3 S.C.R. 320</a></p>
<ul>
<li>the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;</li>
<li>the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;</li>
<li>a reasonable doubt is not a doubt based upon sympathy or prejudice;</li>
<li>rather, it is based upon reason and common sense;</li>
<li>it is logically connected to the evidence or absence of evidence;</li>
<li>it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and</li>


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<li>it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and</li>
<li>more is required than proof that the accused is probably guilty ‑‑ a jury which concludes only that the accused is probably guilty must acquit.</li>
</ul>
<p>The following should be avoided:</p>
<ul>
<li>describing the term “reasonable doubt” as an ordinary expression which has no special meaning in the criminal law context;</li>
<li>inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;</li>
<li>equating proof “beyond a reasonable doubt” to proof “to a moral certainty;</li>
<li>inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;</li>


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<li>inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;</li>
<li>qualifying the word “doubt” with adjectives other than “reasonable”, such as “serious”,  “substantial” or “haunting”, which may mislead the jury; and</li>
<li>instructing jurors that they may convict if they are “sure” that the accused is guilty, before providing them with a proper definition as to the meaning of the words “beyond a reasonable doubt”.</li>
</ul>


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Answer 4: <p>First off your title/question is missing a word (often, need, something between defendant and claim).  Reading the body of your post, I presume you mean need…</p>
<p>Prosecutors don’t need to state any degree of certainty or particular evidence in their charging documents.  They don’t even need to believe a particular defendant is guilty — it’s legal to prosecute multiple people for the same crime at the same time, using the same evidence of each, and leave it up to a jury to decide, which if any are the “true” criminal.</p>
<p>They need to have some evidence, but it needs not be conclusive or even particularly compelling.</p>
<p>And it pretty much has to be that way, in order to avoid corruption. If they had to be “right” every time or they lost their job or even their freedom, there would be nigh irresistible pressure to <strong>be</strong> right, whatever that required.</p>


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<p>Malicious prosecution is a crime, and one I would support lowering the bar to prosecute, but mere innocence of the accused or the lack of sufficiently convincing evidence is insufficient to support punishing the prosecutor that in good faith fails to get a conviction.</p>


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Answer 5: <h2>Beyond Reasonable Doubt <em>is</em> an <a href="https://www.judcom.nsw.gov.au/publications/benchbks/criminal/onus_and_standard_of_proof.html" rel="nofollow noreferrer">objective standard</a></h2>
<p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="tag-new-south-wales-tooltip-container">new-south-wales</a></p>
<blockquote>
<p>Proving the accused’s guilt beyond reasonable doubt is the standard of proof the Crown must achieve before you can convict [him/her] and <strong>the words mean exactly what they say — proof beyond reasonable doubt.</strong> When you finish considering the evidence in the trial and the submissions made by the parties you must ask yourself whether the Crown has established the accused’s guilt beyond reasonable doubt.</p>
</blockquote>


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</blockquote>
<p>You may have some confusion because the trier of law will not provide the trier of fact with any further explanation beyond “<strong>the words mean exactly what they say — proof beyond reasonable doubt.</strong>” Its possible that your confusion stems from some of the questions on this site where some OPs are seeking an empirical standard or further elaboration: there isn’t any - “<strong>the words mean exactly what they say — proof beyond reasonable doubt.</strong>”</p>
<p>The obligation on the trier of fact is not to determine what “proof beyond reasonable doubt” means but to decide if the evidence before them meets that standard. What an appeals court is required to do is determine if, considered in the best possible light, the evidence would convince a reasonable jury of proof beyond a reasonable doubt.</p>
<h2>Charges</h2>


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<h2>Charges</h2>
<p>A prosecutor should bring charges when they believe there is a reasonable chance of conviction. That is, they have evidence that they believe will convince most juries of guilt beyond a reasonable doubt. Jury’s vary - some are easier to convince than others, but an experienced prosecutor has encountered all kinds and has a good feel of when they have a case and when they don’t.</p>
<p>Of course, the prosecutor must make this decision without knowledge of the case the defendant will run. Therefore, good prosecutors make allowance for this and lay charges when the evidence is overwhelming, not just sufficient.</p>
<h2>Indictment</h2>


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<h2>Indictment</h2>
<p>In any event, except for summary offences (misdemeanours), the prosecutor has to convince a judge or grand jury that they have enough evidence. To do this, they present their case completely unchallenged by the defence. That is, they get to show the evidence in the best possible light. If that doesnt convince the judge or grand jury, then they don’t get to go forward.</p>


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Answer 6: <p>At federal trial: to achieve a conviction the prosecutor must prove (i.e. persuade or convince the trier-of-fact) the defendant is guilty beyond a reasonable doubt.</p>
<p>To bring the case to trial: the prosecutor must (among other things) believe the admissible evidence will probably (i.e. more likely than not) be sufficient to obtain and sustain a conviction.</p>
<p>Federal <a href="https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution" rel="nofollow noreferrer">Justice Manual Title 9 9-27.220 - Grounds for Commencing or Declining Prosecution</a></p>
<blockquote>
<p>The attorney for the government should commence or recommend federal
prosecution if he/she believes that the person's conduct constitutes a
federal offense, and that the admissible evidence will probably be
sufficient to obtain and sustain a conviction, unless (1) the
prosecution would serve no substantial federal interest; (2) the


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federal offense, and that the admissible evidence will probably be
sufficient to obtain and sustain a conviction, unless (1) the
prosecution would serve no substantial federal interest; (2) the
person is subject to effective prosecution in another jurisdiction; or
(3) there exists an adequate non-criminal alternative to prosecution.</p>
<p>Comment. JM 9-27.220 sets forth the longstanding threshold requirement
from the Principles of Federal Prosecution that a prosecutor may
commence or recommend federal prosecution only if he/she believes that
the person will more likely than not be found guilty beyond a
reasonable doubt by an unbiased trier of fact and that the conviction
will be upheld on appeal. Evidence sufficient to sustain a conviction
is required under Rule 29(a) of the Federal Rules of Criminal
Procedure, to avoid a judgment of acquittal. Moreover, both as a
matter of fundamental fairness and in the interest of the efficient


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is required under Rule 29(a) of the Federal Rules of Criminal
Procedure, to avoid a judgment of acquittal. Moreover, both as a
matter of fundamental fairness and in the interest of the efficient
administration of justice, no prosecution should be initiated against
any person unless the attorney for the government believes that the
admissible evidence is sufficient to obtain and sustain a guilty
verdict by an unbiased trier of fact. In this connection, it should be
noted that, when deciding whether to prosecute, the government
attorney need not have in hand, at that time, all of the evidence upon
which he/she intends to rely at trial, if he/she has a reasonable and
good faith belief that such evidence will be available and admissible
at the time of trial. Thus, for example, it would be proper to
commence or recommend a prosecution even though a key witness may be
out of the country, so long as there is a good faith basis to believe


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commence or recommend a prosecution even though a key witness may be
out of the country, so long as there is a good faith basis to believe
that the witness's presence at trial could reasonably be expected. ...</p>
</blockquote>
<p>With regard to the prosecutor's belief about the prospect of conviction, other common law jurisdictions have similar requirements.</p>


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Question Title: If a parent withdraws a minor student from school, or prevents them from attending, is that a criminal violation of a mandatory attendance law?


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Question Body: <p>Both of my parents signed an agreement with my high school to permit me to complete my high school graduation requirements in college. They both also signed a college enrollment form that specifically gave me permission as a minor and their dependent child to attend the college. My (high) school district is paying for the classes and a bus pass.</p>
<p>My father has stated his intent to renege on the agreement.</p>


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<p>My father has stated his intent to renege on the agreement.</p>
<p>Since I am a minor, have not graduated from high school, and the grades from those 16 college classes and 2 labs were agreed to be accepted by the district as the graduation requirements for high school, isn't either withdrawing me from class, or preventing me from attending so that I fail, without enrolling me at another high school, or submitting a state mandated &quot;intent to homeschool form&quot; a violation of my state's compulsory attendance law that requires that all minors who have not yet graduated from high school attend school or show proof they are being homeschooled?</p>


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Answer 1: <p><a href="https://app.leg.wa.gov/rcw/default.aspx?cite=28a.225&amp;full=true" rel="nofollow noreferrer">Washington has such laws</a>. RCW 28A.225.010 states the exceptions to the compulsory attendance requirement, which includes: is attending private school or extension program, receiving home schooling, unable to attend including is in jail, religion, over 16 full-time employed and with parental consent. Also, also has GDE or has already satisfied graduation requirements. It isn't clear what graduation requirements have not been satisfied, I assume that you still must complete 1 credit of Calculus to satisfy the requirements. Therefore, you must take attend school, even if you don't take that class.</p>


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<p>If you don't attend classes at the high school, the high school is required by RCW 28A.225.020 to provide written notice to the parents. Steps are taken to assure compliance with state law, i.e. phone calls and conferences with the parents, etc. It would be the responsibility of the school district to monitor the college's scheme that allows you to take high school classes at college.</p>
<p>The primary legal mandate is imposed on the parent:</p>
<blockquote>
<p>All parents in this state of any child eight years of age and under
eighteen years of age shall cause such child to attend the public
school of the district in which the child resides and such child shall
have the responsibility to and therefore shall attend for the full
time when such school may be in session</p>
</blockquote>


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school of the district in which the child resides and such child shall
have the responsibility to and therefore shall attend for the full
time when such school may be in session</p>
</blockquote>
<p>As described, the hypothetical child is not exempt, therefore the parents must compel the child to attend school, until the child becomes exempt. There is vast leeway in how that requirement can be satisfied, but it must be somehow satisfied.</p>


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Question Body: <p>We are developing software that are sold to and used by other companies. In the software, certain types of personal data, like name, email and phone number, can be stored when a user registers. The data is stored on a server owned by our customer. Our customer owns all the data. Our software shows this data in certain places within our software itself, but does not share it with any other third parties, or store it on our own servers, or use it in any other way.</p>
<p>What are our requirements when it comes to providing a privacy policy for our software, to be compliant with GDPR? Will our software only be considered a tool used by our customer in which they collect personal data, and hence not require us to have our own privacy policy accepted by the users in addition, or will we have to have a privacy policy explaining what personal data which our customer is able to collect through our software?</p>


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<p>All users of the software will be employees of our customer, if that makes a difference. They will therefore have their own privacy policy agreement with our customer (their employer) already.</p>


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Answer 1: <p>Alice's business sells database management software.</p>
<p>Organisations buy or licence the software, deploy it on hardware they control and use the software to help store and, process and analyse 'personal data' within the meaning of GDPR.</p>
<p>Alice's business has no access whatsoever to the personal data being stored and processed by those organisations.</p>
<p>In respect of <em>that</em> personal data, GDPR is not engaged by Alice's business. The business is neither a 'controller' nor 'processor' of that personal data.</p>
<p><a href="https://commission.europa.eu/law/law-topic/data-protection/reform/rules-business-and-organisations/application-regulation/who-does-data-protection-law-apply_en" rel="noreferrer">Who does the data protection law apply to? - European Commission</a></p>


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<p><a href="https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/personal-information-what-is-it/who-does-the-uk-gdpr-apply-to/" rel="noreferrer">Who does the UK GDPR apply to? - Information Commissioner's Office</a></p>


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Question Title: Is it legal for companies to pay salaries or bonuses as lootboxes?

Question Body: <p>The South Korean branch of video game publisher Nexon made headlines online when it <a href="https://www.insight.co.kr/news/298391" rel="noreferrer">gave out a small bonus to its employees in the form of lootboxes.</a> A monthly bonus coupon was given in August 2020 to employees. The employees would type a keyword in a chatbot to activate the coupon, which would add a random amount between 2000 and 100000 points to one's balance.</p>
<p>Is giving out bonuses as lootboxes or any other way that relies on pure luck rather than my achievements in work legal in other jurisdictions? Would the legality be different if it were salaries and not bonuses that were given out this way?</p>


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Answer 1: <p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></p>
<blockquote>
<p>Is it legal for companies to pay salaries or bonuses as lootboxes?</p>
</blockquote>
<p>The German &quot;Gewerbeordnung&quot; says:</p>
<blockquote>
<p>§ 107
Berechnung und Zahlung des Arbeitsentgelts</p>
<ul>
<li>Das Arbeitsentgelt ist in Euro zu berechnen und auszuzahlen.</li>


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<p>The German &quot;Gewerbeordnung&quot; says:</p>
<blockquote>
<p>§ 107
Berechnung und Zahlung des Arbeitsentgelts</p>
<ul>
<li>Das Arbeitsentgelt ist in Euro zu berechnen und auszuzahlen.</li>
<li>Arbeitgeber und Arbeitnehmer können Sachbezüge als Teil des Arbeitsentgelts vereinbaren, wenn dies dem Interesse des Arbeitnehmers oder der Eigenart des Arbeitsverhältnisses entspricht. Der Arbeitgeber darf dem Arbeitnehmer keine Waren auf Kredit überlassen. Er darf ihm nach Vereinbarung Waren in Anrechnung auf das Arbeitsentgelt überlassen, wenn die Anrechnung zu den durchschnittlichen Selbstkosten erfolgt. Die geleisteten Gegenstände müssen mittlerer Art und Güte sein, soweit nicht ausdrücklich eine andere Vereinbarung getroffen worden ist. Der Wert der vereinbarten Sachbezüge oder die Anrechnung der überlassenen Waren auf das Arbeitsentgelt darf die Höhe des pfändbaren Teils des Arbeitsentgelts nicht übersteigen.</li>


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<li>Die Zahlung eines regelmäßigen Arbeitsentgelts kann nicht für die Fälle ausgeschlossen werden, in denen der Arbeitnehmer für seine Tätigkeit von Dritten ein Trinkgeld erhält. Trinkgeld ist ein Geldbetrag, den ein Dritter ohne rechtliche Verpflichtung dem Arbeitnehmer zusätzlich zu einer dem Arbeitgeber geschuldeten Leistung zahlt.</li>
</ul>
</blockquote>
<p><a href="https://dejure.org/gesetze/GewO/107.html" rel="noreferrer">Source</a></p>
<p>Translation:</p>
<blockquote>
<p>§ 107
Calculation and payment of remuneration</p>
<ul>
<li>Remuneration shall be calculated and paid in euros.</li>


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<p>Translation:</p>
<blockquote>
<p>§ 107
Calculation and payment of remuneration</p>
<ul>
<li>Remuneration shall be calculated and paid in euros.</li>
<li>Employer and employee may agree on benefits in kind as part of the remuneration if this is in the interest of the employee or in accordance with the nature of the employment relationship. The employer may not provide the employee with goods on credit. The employer may, by agreement, provide the employee with goods as a credit against the employee's remuneration, provided that the goods are provided at the average cost price. The goods provided must be of average type and quality unless expressly agreed otherwise. The value of the agreed benefits in kind or the crediting of the goods provided against the remuneration may not exceed the amount of the attachable part of the remuneration.</li>


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<li>The payment of regular remuneration may not be excluded in cases where the employee receives a tip from a third party for his work. A tip is an amount of money paid by a third party to the employee without a legal obligation in addition to a service owed to the employer.</li>
</ul>
</blockquote>
<p>What does that mean?</p>
<p>The base <em>Salary</em> can never be paid in anything but Euros.</p>
<p>Makes sense, how would you determine whether 2 apples, an egg and a parttime timeshare of a camel each month are above or below the minimum wage? How would the employee pay their own costs from that, even it it were worth more? Taxes would be a nightmare. Good luck to the Ex-Wife and kid, getting half an apple and a stinky camel timeshare for a day as alimony. No, money is there for a reason.</p>


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<p><em>Benefits</em> like bonuses or additional agreements on top of your basic salary <em>can</em> be goods of other kinds. Loot boxes for example. Please note that the employee has to explicitely agree on that. I will assume getting an <em>additional</em> lootbox on top for free is something an employee can agree on without a second thought. Getting parts of your salary normally paid in Euros or bonus normally paid in Euros as Lootboxes would be something the employee would have to explicitely agree to, otherwise it must be Euros. You cannot &quot;force&quot; an employee to accept anything but Euros.</p>


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<p>Note the sentence that the employer can give the employee goods instead of Euros not for their made up &quot;sale&quot; price, but for the cost of making them. So for no profit. You could pay someone partially in loot boxes, but since a loot box costs about 0,01€ to make (electricity, database maintenance, the developer who has to press the button once a month), that would be a <em>lot</em> of loot boxes to pay a part of the salary.</p>
<p>And yes, even &quot;goods&quot; will be taxed. They are part of your income. So if you get a &quot;lootbox&quot;, be preprared to pay taxes on that. If you don't play the game, paying taxes on something you don't use might not be worth it after all.</p>


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<p>It is well known that companies have employee-only pricing schemes. For example you will find that employees of automobile manufacturers will drive their brands cars, because getting a good price on a car is a big deal. Some companies allow private use of company cars for the employees that work &quot;in the field&quot;. But it is very rare that employees get actual goods monthly as part of their salary in Germany.</p>
<p>But there is no mention of &quot;luck&quot; anywhere in the law. Assuming the employee knows about the &quot;luck&quot; factor and explicitely agrees to have that as part of their remuneration, then everything is fine.</p>


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Answer 2: <p><a href="/questions/tagged/united-kingdom" class="post-tag" title="show questions tagged &#39;united-kingdom&#39;" aria-label="show questions tagged &#39;united-kingdom&#39;" rel="tag" aria-labelledby="tag-united-kingdom-tooltip-container">united-kingdom</a></p>
<p>A bonus of this sort is a perfectly legal <a href="https://www.gov.uk/government/publications/tax-exemption-for-trivial-benefits-in-kind-draft-guidance/tax-exemption-for-trivial-benefits-in-kind-draft-guidance" rel="nofollow noreferrer">trivial Benefit in Kind</a> (BIK) as long as it meets all the tax-exemption requirements at <a href="https://www.legislation.gov.uk/ukpga/2003/1/section/323A?timeline=false" rel="nofollow noreferrer">section 323A</a>, Income Tax (Earnings and Pensions) Act 2003, which I have summarised as being:</p>
<ul>
<li><p>It is niether cash nor a cash voucher</p>
</li>


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<ul>
<li><p>It is niether cash nor a cash voucher</p>
</li>
<li><p>The (average) cost of providing the benefit is not more that £50:00 (NB this is the cost to the employer, not necessarily the value of the loot box)</p>
</li>
<li><p>Is not given under contract or in lieu of salary etc</p>
</li>
<li><p>Is not given as recognition of particular services carried out as part of the recipient's employment</p>
</li>
<li><p>(There are further provisions when it is given to a company director or office-holder, or their family, which do not seem to apply here.)</p>
</li>
</ul>


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</li>
<li><p>(There are further provisions when it is given to a company director or office-holder, or their family, which do not seem to apply here.)</p>
</li>
</ul>
<p>Unless these conditions are all satisfied, HMRC would (presumably) treat it as a &quot;cash equivalent of any non-cash voucher&quot; under <a href="https://www.legislation.gov.uk/ukpga/2003/1/section/87?timeline=false" rel="nofollow noreferrer">section 87</a> of the Act and <a href="https://www.legislation.gov.uk/uksi/2002/2006/regulation/4?timeline=false" rel="nofollow noreferrer">regulation 4(1)(c)</a>, Tax Credits (Definition and Calculation of Income) Regulations 2002.</p>
<hr />
<ul>
<li>For awareness and clarity:</li>
</ul>
<p>It is the cost to the employer that matters, not any value the bonus may have in the future.</p>


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<hr />
<ul>
<li>For awareness and clarity:</li>
</ul>
<p>It is the cost to the employer that matters, not any value the bonus may have in the future.</p>
<p>For example. If, instead of loot boxes, the employer gives each employee lottery tickets / scratch cards worth up to £50:00 as part of a work-place syndicate, this would fall within the above Trivial BIK rules so no tax is due - as long as the other conditions are also met.</p>
<p>And... any winnings using this method belong to the syndicate, not the employer, so no employment-related tax etc is due on them either. <a href="https://www.mytipsandadvice.co.uk/2017-06/work-lotto-tickets-are-taxable-truth-or-myth-UKTATXAR_EU17180401" rel="nofollow noreferrer">Source</a></p>


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Question Title: Is there such a thing as &#39;attempted copyright infringement&#39; in the UK?

Question Body: <p>I've recently read an article about a proposed bill that would criminalise attempted copyright infringement in the US. link - <a href="https://www.wired.com/2007/05/ippa07/" rel="nofollow noreferrer">https://www.wired.com/2007/05/ippa07/</a></p>
<p>I was wondering if the UK had any legislation on this. Any help is much appreciated. Cheers!</p>


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Answer 1: <h2>Yes</h2>
<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" aria-label="show questions tagged &#39;australia&#39;" rel="tag" aria-labelledby="tag-australia-tooltip-container">australia</a></p>
<p><a href="https://www.legislation.gov.au/Details/C1914A00012" rel="nofollow noreferrer">s7</a> of the Crimes Act 1914:</p>
<blockquote>
<p>Any person who attempts to commit any offence against this Act or any other Act, whether passed before or after the commencement of this Act, shall be guilty of an offence and shall be punishable as if the attempted offence had been committed.</p>
</blockquote>
<p>This covers offenses under the Copyright Act.</p>


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Answer 2: <p><strong>YES</strong></p>
<p><strong>Short Answer</strong>:</p>
<p>As long as it's a &quot;criminal infringement&quot; and not for, say, <a href="https://www.legislation.gov.uk/ukpga/1988/48/section/28B?timeline=false" rel="nofollow noreferrer">personal copies for private use</a>, and the &quot;criminal attempt&quot; is more than <a href="https://law.stackexchange.com/q/88696/35069">merely preparatory</a></p>
<p><strong>Long Answer</strong>:</p>
<p>Part 1, Chapter 2 of the <a href="https://www.legislation.gov.uk/ukpga/1988/48/contents" rel="nofollow noreferrer">Copyright, Designs and Patents Act 1988</a> covers the rights of a copyright owner and, at <a href="https://www.legislation.gov.uk/ukpga/1988/48/section/16?timeline=false" rel="nofollow noreferrer">section 16(2)</a>, states that:</p>
<blockquote>


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<blockquote>
<p>Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.</p>
</blockquote>
<p>There are numerous criminal offences within the Act covering various business, for-profit or for-gain infringement scenarios, such as <a href="https://www.legislation.gov.uk/ukpga/1988/48/section/107?timeline=false" rel="nofollow noreferrer">section 107</a>:</p>
<blockquote>
<p>(1) <strong>A person commits an offence who, without the licence of the copyright owner—</strong></p>
<ul>
<li><p>(a) makes for sale or hire, or</p>
</li>
<li><p>(b) imports into the United Kingdom otherwise than for his private and domestic use, or</p>
</li>
<li><p>(c) possesses in the course of a business with a view to committing any act infringing the copyright, or</p>
</li>
<li><p>(d) in the course of a business —</p>
</li>
</ul>
<blockquote>
<p>(i)sells or lets for hire, or</p>


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</li>
<li><p>(d) in the course of a business —</p>
</li>
</ul>
<blockquote>
<p>(i)sells or lets for hire, or</p>
<p>(ii)offers or exposes for sale or hire, or</p>
<p>(iii)exhibits in public, or</p>
<p>(iv)distributes, or</p>
</blockquote>
<ul>
<li>(e) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,</li>
</ul>
<p>an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work.</p>
<p>...</p>
<p>(4) A person guilty of an offence under subsection (1)(a), (b), (d)(iv) or (e) is liable—</p>
<ul>
<li><p>(a) on summary conviction to imprisonment for a term not exceeding six months or a fine, or both;</p>
</li>
<li><p>(b) <strong>on conviction on indictment to a fine or imprisonment for a term not exceeding ten years, or both.</strong></p>
</li>
</ul>
</blockquote>


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</li>
<li><p>(b) <strong>on conviction on indictment to a fine or imprisonment for a term not exceeding ten years, or both.</strong></p>
</li>
</ul>
</blockquote>
<p>The above emboldened provisions establish that certain types of copyright infringement are indictable offences, which brings in to play <a href="https://www.legislation.gov.uk/ukpga/1981/47/section/1?timeline=false" rel="nofollow noreferrer">section 1</a> Criminal Attempts Act 1981:</p>
<blockquote>
<p>1 Attempting to commit an offence.</p>
<p>(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.</p>
<p>...</p>
<p>(4) This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence, other than—</p>
<p>[<em>list of excluded offences omitting as not relevant to the question</em>]</p>
</blockquote>


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Question Title: What is the place of birth of a child born in the embassy?

Question Body: <p>If someone living at an embassy abroad gave birth to a child on the embassy grounds, then what country and what place will be indicated on the birth certificate?</p>
<p>To clarify the question, let's assume that we mean the US embassy in another country. But I'm also interested in how a similar situation will occur in the embassies of other countries.</p>
<p>I saw a <a href="https://law.stackexchange.com/questions/29903/are-people-born-in-a-foreign-embassy-on-us-soil-american-citizens">similar question</a> but it is related to citizenship, but I only ask about birth certificate</p>


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Answer 1: <p>The place of birth on the birth certificate is where the child was actually born. Indeed, usually it will be more specific than city and state or province and will also identify a hospital or residence or other place where the birth happened.</p>
<p>So, for example, if a child is born to U.S. diplomats in Paris, France (in or out of the embassy grounds), the birth certificate will say that the child was born in Paris, France at Charles de Gaulle Hospital.</p>
<p>But, that child will still be a U.S. citizen in all likelihood, because that child's mother, and/or married father or unmarried father who acknowledges paternity, is a U.S. citizen (in all likelihood) pursuant to 8 U.S.C. §§ 1401 and 1409. The child may or may not be a French dual citizen depending upon the citizenship law of France.</p>


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<p>In the case of a French diplomat who has a child born physically in Washington D.C. (inside or outside the French embassy) the birth certificate will likewise state that the child was born in Washington D.C.</p>
<p>The French diplomat's child, however, will not be a U.S. citizen since Section 1 of the 14th Amendment to the U.S. Constitution's first sentence (which is also found in 8 U.S.C. § 1401(a)) states:</p>
<blockquote>
<p>All persons born or naturalized in the United States, and <strong>subject to
the jurisdiction thereof</strong>, are citizens of the United States and of
the State wherein they reside.</p>
</blockquote>
<p>But a French diplomat's child is not &quot;subject to the jurisdiction&quot; of the United States, so the French diplomat's child does not gain U.S. citizenship at birth (assuming for simplicity's sake that both of the child's parents are French citizens and are not U.S. citizens) despite the fact that the child was born in the United States.</p>


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Answer 2: <blockquote>
<p>If we assume that the ambassador and his wife (or other embassy staff), living in the embassy residence, will give birth to a child, then what country and what place will be indicated on the birth certificate?</p>
</blockquote>
<p>There is a common misconception that embassies are the sovereign territory of the country whose embassy it is.  This is not the case.  Embassies are <em>inviolable,</em> meaning that the country where the embassy is located can't exercise physical jurisdiction over the premises of the embassy <em>without the ambassador's consent.</em>  This is established by article 22 of the Vienna Convention on Diplomatic Relations.  The premises otherwise remain legally under the sovereignty of the country where the embassy is located.</p>


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<p>For example, if someone commits a crime in the French embassy to the US, the prosecution would take place in the DC courts according to the DC criminal code (or, depending on the nature of the crime, in the federal courts according to the federal criminal code, which is rather more likely for a crime committed in an embassy than it is for a crime committed somewhere else).</p>
<p>In other words, the grounds of the French embassy in Washington are US territory and the grounds of the US embassy in Paris are French territory.  Therefore, a birth certificate for a child born at the French embassy to the US will be issued by the District of Columbia, and it will show that the child was born in the District of Columbia at 4101 Reservoir Road NW.</p>


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<p>This assumes that the birth is reported; if everyone in attendance at the birth is a diplomat with full immunity then they could choose to ignore the requirement to report the birth.  Presumably they would only do that if they had a way of certifying the birth under French law.  I imagine that some countries have provisions for their capital cities to issue birth certificates for children of their diplomats born abroad, but I'd be a bit surprised if France were among them.</p>


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Answer 3: <p>A child's place of birth is the place where they are born (obviously). Embassies have no special status, embassies in France are all in France, and French embassies are in many different countries. Born in a Greek embassy in France, your place of birth is France.</p>
<p>Sometimes your place of birth is legally important, but then there is a good chance that there are specific rules for that case. For example the baby of German diplomats born in the German embassy in Washington is born in the USA, but because of the special case this baby doesn't get the rights and duties that 99.9% of children born in the USA have, and would most likely instead get all the rights and duties that 99.9% of children in Germany have.</p>


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<p>(Practically, I don't know whether they would get some special entry in their passports so for example US border officers wouldn't keep asking &quot;but your place in birth is the USA, you must be US citizen. And if such a baby lived in the USA for 18 years, I wonder if they would have the right to naturalise. Same as any other 18 year old, or more rights because they were born in the USA. And now we can go totally hypothetically and ask if such a baby could eventually become US president, but I think the rule there is something like &quot;born as US citizen&quot; and not actually &quot;born in the USA&quot;. And if a golf club accepted only members &quot;born in the USA&quot;, which might be illegal discrimination or not, they'd have to accept that German child of German diplomats born in the USA).</p>


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Question Body: <p>The only time I was ever called for jury duty while waiting with potential Jurors I spoke to one who essentially said that she believed that a trial would only happen if the cops had definitive proof and as such anyone who made it to trail was surely guilty.  I tried to point out that was antithetical to the very concept of innocent until proven guilty but she stayed committed to her view.</p>
<p>As it would happen I, and all the others waiting with me, were dismissed without ever being called in as potential jurors and as such her sentiment didn't mean much that day.  However I'm wondering if we had been needed, and the women in question didn't exclude her self by stating she believed anyone on trial was guilty during jury selection, what would the appropriate steps, if any, I as a fellow juror could have taken to indicate I felt the sentiment expressed by the women should be known and potentially rule her out as a juror?</p>


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<p>Assuming I could have said something during jury selection would my speaking out have resulted in my also likely being removed as potential juror?</p>


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Answer 1: <h2>Don't be prejudicial</h2>
<p>You have no idea if this person would be suitable to be on a jury based simply on this conversation. You need to wait until you are sharing the jury room and look at the way they actually behave.</p>
<p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="tag-new-south-wales-tooltip-container">new-south-wales</a></p>


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<p>Once empanelled, the judge will give an <a href="https://www.judcom.nsw.gov.au/publications/benchbks/criminal/the_jury.html#p1-470" rel="nofollow noreferrer">opening address</a>, the jury will be given a <a href="https://www.judcom.nsw.gov.au/publications/benchbks/criminal/the_jury.html#p1-475" rel="nofollow noreferrer">jury booklet and a DVD</a>, and <a href="https://www.judcom.nsw.gov.au/publications/benchbks/criminal/the_jury.html#p1-480" rel="nofollow noreferrer">written directions</a>. All of which explains their role and duties. All of this is intended to disabuse jurors of any misconceptions they may have about the process.</p>


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<p>One of the duties that the materials explain is <a href="https://www.judcom.nsw.gov.au/publications/benchbks/criminal/the_jury.html#d5e10421" rel="nofollow noreferrer">reporting irregularities</a>, including: &quot;that a juror is refusing to participate in the jury’s functions&quot; and &quot;that a juror appears to lack the ability to be impartial.&quot;</p>
<p>If this describes the behaviour you witness in the jury room, you must report it. What happens next is up to the judge.</p>


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Question Body: <p>The court originally derived its authority solely from the supreme sovereignty of the crown. But if the royal power is so supreme, then why are subjects allowed as a matter of apparently solemn entitlement, to make such detailed submissions as to how this power should be exercised?</p>
<p>Doesn’t the idea of supreme power come with it a degree of propriety, and often even a degree of pride in the to dispense such power as capriciously or arbitrarily as one likes?</p>
<p>Doesn’t the idea of lengthy detailed and formal submissions such as to a court in themselves, let alone in the current system wherein the court is apparently all but required to review and consider all of them in great rigour and detail, other than from privileged trusted advisors, imply a level of condescension toward the authority, effectively the total opposite of propriety, reverence and discretion?</p>


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<p>So what is the historical basis for this idea that all parties are entitled not only to make, but also to have rather quite vigorously considered, all of their submissions, which effectively amount to telling the court, and so by extension the king or queen, how they should be doing their job?</p>
<p>What place is it for a lowly subject to tell a king how best to exercise his power when they are not even in the King’s cabinet or privy council etc?</p>
<p>Even this this question is framed rather in terms of the English/commonwealth/common law framework, perspectives on the current state and historical development of other legal systems are also most welcome.</p>


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Answer 1: <p>This is just an instantiation of the ancient legal principle <em><a href="https://en.m.wikipedia.org/wiki/Audi_alteram_partem" rel="nofollow noreferrer">audi alteram partem</a></em> (hear the other side).</p>
<p>James Tully says (in &quot;<a href="https://www.erudit.org/fr/revues/mlj/2020-v65-n3-mlj05864/1075601ar/" rel="nofollow noreferrer">Sustainable Democratic Constitutionalism and Climate Crisis</a>&quot; (2020) 5:3 McGill LJ 545):</p>
<blockquote>
<p>Aeschylus introduced this legal norm in <em><a href="https://en.m.wikisource.org/wiki/The_House_of_Atreus/The_Furies" rel="nofollow noreferrer">Eumenides</a></em>, the third play in the <em>Oresteia</em> trilogy. The Roman lawyer Cicero brought it to prominence in Roman law and the Western tradition.</p>
</blockquote>


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Answer 2: <p>After the collapse of the Roman Empire, Europe and the Western Roman Empire collapsed into the &quot;dark ages&quot; in which large scale government and civilized legal institutions collapsed, in favor of feudalism in which fragmented warlords ruled serfs absolutely, with lords sometimes subject to greater lords who ruled them, and society spent a thousand years trying to reconsolidate large kingdoms and to reconstruct civilization.</p>
<p>In the feudal era, one of the customary incidents of the relationship between a lord and a lord's subjects is that the lord reserved the authority to met out justice between the lord's subjects and to resolve disputes between them.</p>
<p>People sought to petition the lord to do justice for the simple reason that no one else was in a position to do so. The lord was the sole authority available to them, because the lord, like all governments, established a monopoly on the use of force to achieve one's ends.</p>


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<p>A petition to the lord was not really an entitlement, as the lord could refuse to hear someone's pleas. But, lords who heard the pleas of their subjects and resolved them justly found that their domains became more prosperous and their personal reputations were enhanced by doing so. The church, which was the sole force independent of secular lords in the feudal era, likewise encouraged lords to act in this way and praised them for doing so.</p>
<p>Conversely, lords who refused to listen to their subject's pleas for justice, or ruled unjustly, found that their domains didn't prosper and that potential usurpers of their positions found many allies.</p>


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<p>As lords tired of this work, they delegated responsibility for dealing with petitions seeking justice to a learned member of their court presaging the role of a modern judge, whose decisions could be reviewed by the appointing lord, but usually weren't because the learned judges made good decisions most of the time and second guessing their decisions would defeat the purpose of delegating this burden.</p>
<p>Once pleas for justice between subjects were delegated by lords to professionals, the process formalized and bureaucratized.</p>
<p>Around the time of the late Middle Ages, in continental Europe, a process known as the &quot;reception&quot; of Roman law began, in which lords and the judges they appointed to make decisions for them began to try to follow the repository of Roman legal authority to guide their own decisions on the general assumption that it was legitimate to do so and that Roman law reflected principles of natural justice and good governance.</p>


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<p>As the process became delegated to professionals and formalized and fused to the rule of law over time, the notion of rule of law and a right to petition began to come to be seen as fundamental rights in a just society and open deviation from these ideals came to undermine the authorities of the lords as well, to the point where aristocrats who deviated from these norms were seen as autocrats and despots who were bad actors. This, in turn, eventually led to movements seeking democratic input (often in exchange for voluntary assent to taxation) in a constitutional monarchy sense, and then to revolutions to displace the monarchy with a republic that dispensed with the monarch all together.</p>


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Question Title: Landlord claims I missed a rent payment from over a year ago, I don&#39;t have easy way to confirm a payment from that far back. What are my obligations?

Question Body: <p>I'm renting a room from a person, not a large organization; it's a monthly rental.  He claims he just saw I had missed my monthly rent payment from April of last year.  I don't have an easy way to check back more then a year ago to see if I made the payment.</p>
<p>Now realistically I don't see this going to court one way or another; I have every intent to figure things out and if I really did miss a payment pay it now.  However it makes me curious what <em>is</em> the legal obligation in such a case?  Is my inability to definitively prove I gave him money a year ago make me responsible if he says he doesn't show the electronic payment on his end?  Or is there some sort of statue of limitations on his being able to claim a missed payment?</p>
<p>I live in Maryland.</p>


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Answer 1: <p>If you want to be argumentative about it, the burden of proof is on the person making the accusation. This also means the burden of production is, too. Underlying the whole matter is a claim that you've engaged in &quot;breach of contract,&quot; namely failing to pay rent. Your legal obligation is to not engage in contract fraud nor breach of contract. You are to exercise due diligence in resolving any breach of contract.</p>
<p>You may ask the lessor to provide evidence in support of the claim while admitting that you have difficulty looking that far back into the issue. The idea here is to &quot;work with&quot; the lessor rather than immediately taking an adversarial stance. Normal people become very disgruntled by those taking an immediate adversarial approach rather than seeking to work with the other person to resolve the dispute.</p>


Tags: united-states, rental-property, rent


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Question Title: Does copyright law prevent the destruction of works?

Question Body: <p>Does copyright law, in any jurisdiction, prevent the owner of a physical instance of a copyrighted work from destroying it?</p>
<p>Are there other laws that allow the creator to prevent destruction of artworks by their owners?</p>


Answer 1: <h2>You own it</h2>
<p>In general, if you own an object, you can do what you like with it if you otherwise comply with the law.</p>
<p>It is possible that a particular object may be protected under heritage or similar law, but if it isn’t, and you comply with environmental and safety law, you grind that thing into dust if you want to.</p>
<p>Of course, if it did, you would never be able to delete a voicemail, email, or throw out used notepaper - they’re all copyright.</p>


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Answer 2: <p>Not copyright law but the jurisdiction might provide for <a href="https://en.wikipedia.org/wiki/Moral_rights" rel="nofollow noreferrer">moral rights</a> of artists and authors and such, which among other things might protect the integrity of the work or prevent its destruction.</p>
<p>One example is the <a href="https://www.law.cornell.edu/uscode/text/17/106A" rel="nofollow noreferrer">Visual Artists Rights Act, 17 U.S.C. § 106A</a> (VARA), which provides for the author's right in some circumstances &quot;to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.&quot;</p>
<p>The <a href="https://en.wikipedia.org/wiki/Visual_Artists_Rights_Act" rel="nofollow noreferrer">Wikipedia article about VARA</a> includes three examples of when artists have benefited from that right, to varying extents.</p>


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Answer 3: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>Under the UCC, uniform commercial code, you can find the &quot;first sale doctrine&quot;. It is an exception to the copyright law, granting the buyer of a work the right to sell, display, or dispose of the copy. It also grants the right to use parts of the copy (e.g. I can shred a painting and weave a basket with the canvas strips) to create other works.</p>
<p>Though it says &quot;first buyer&quot; the right attaches on a transfer of the copyright (i.e. a second sale). This is implied in the &quot;dispose&quot; section. <a href="https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1193&amp;context=nulr" rel="nofollow noreferrer">ref</a></p>


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<p>This does not allow the buyer to create derivative works from the copyrighted material. One still cannot take photographs of a work and publish them as the original copyright sticks. The first sale doctrine attaches only to the material copy bought.</p>
<blockquote>
<p>The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-1854-copyright-infringement-first-sale-doctrine" rel="nofollow noreferrer">ref</a></p>
</blockquote>
<p>Note that the original IS a &quot;copy&quot; for the purposes of this statute, even if no other copies, as commonly understood in language, were made.</p>


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</blockquote>
<p>Note that the original IS a &quot;copy&quot; for the purposes of this statute, even if no other copies, as commonly understood in language, were made.</p>
<p>The waters are muddy on digital copies or artwork that only exists in digital medium. EULAs and works sold under a license might change these rights. Such interactions are beyond the scope of this answer.</p>
<p>Specific statutes might protect some historical or heritage artwork from destruction or further modification, though.</p>


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Answer 4: <p><a href="/questions/tagged/brazil" class="post-tag" title="show questions tagged &#39;brazil&#39;" aria-label="show questions tagged &#39;brazil&#39;" rel="tag" aria-labelledby="tag-brazil-tooltip-container">brazil</a></p>
<p>Under Brazilian law, there are two distinct copyright laws. The material rights, that can be transferred, and the moral rights, that are inalienable. An artist can sell the artwork and transfer the former, but the latter remains with the artist for as long as the copyright remains (death of author +70 years).</p>
<p>The patrimonial rights are the same as in other parts of the world. But the moral rights give the author the ability to:</p>
<ul>
<li><p><strong>Claim authorship of the work</strong>. This can lead even to defamation or libel lawsuits if claims to the contrary arise.</p>
</li>


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<ul>
<li><p><strong>Claim authorship of the work</strong>. This can lead even to defamation or libel lawsuits if claims to the contrary arise.</p>
</li>
<li><p><strong>Be mentioned or to sign the artwork</strong> The author may demand that their name is displayed next to the artwork, or to actually sign or place a watermark on the work.</p>
</li>
<li><p><strong>Artwork integrity</strong> - The author may deny modifications or changes to the artwork that may be considered harmful to the image or honor of the author.</p>
</li>
<li><p><strong>Keep works unpublished and private</strong> - artworks cannot be published without the author permission. This permission is implicit with the sale or licensing but an author cannot be forced to publish a new work.</p>
</li>


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</li>
<li><p><strong>right to withdrawal</strong> the author may request works to be removed from public view, unpublished or deleted if they harm their image or honor. Exercising this right may incur a penalty or other monetary sanctions to the author, however (i.e. to repay the losses incurred to a third party).</p>
</li>
</ul>
<p>Some of these rights might exist or be implied in other jurisdictions but they are explicitly stated in the Brazilian copyright law.</p>
<p><a href="https://www.projuris.com.br/blog/lei-de-direitos-autorais/" rel="nofollow noreferrer">ref_1</a></p>
<p><a href="https://www.planalto.gov.br/ccivil_03/leis/l9610.htm" rel="nofollow noreferrer">ref_2</a></p>


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Question Title: Playing a game I didn&#39;t purchase (until now)

Question Body: <p>For about 6 months I've been playing my brother's copy of the original DOOM and DOOM 2. He purchased it on Steam, however there is no DRM lock-in on the actual IWAD gamefiles (all that's required to play the games).</p>

<p>I became curious, at what point is it considered piracy. Lets begin with, I am playing it on his computer whenever he authorizes me to do so. Surely that can't be illegal. Later, I make a separate user account on Windows to play the same game (Steam has a feature of "Library sharing" on the same computer).  </p>

<p>Lets then say that I install Linux on his computer and play the same game, just from a different OS and user account. Is that still legal? Its still on his physical computer, and we cannot both play it at the same time due to there only being one computer. The instance of Linux is entirely there for me, not something he cares to use.  </p>


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<p>Later I clone the Linux partition with all my files onto my own laptop, and play DOOM from there. At this point, we have 2 separate computers with the same exact original copy of  one game. I'm guessing that isn't permitted by the EULA (not that anyone cares).</p>

<p>My question is, where does the law draw the line? At what point does it become against the license policy?  </p>

<p>PS: I did actually end up buying the entire series, because I decided to record the MIDI music turning them into MP3's (and FLACs).  </p>

<p>I am located in Canada, and forgot to metion I am playing this via source port "GZDoom" licensed under GNU GPL3+ and MIT. Only the gamefiles (IWAD's) are subject to standard copyright.</p>


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<p>I am located in Canada, and forgot to metion I am playing this via source port "GZDoom" licensed under GNU GPL3+ and MIT. Only the gamefiles (IWAD's) are subject to standard copyright.</p>


Answer 1: <p>At the point where you copy the game files, including the WADs, onto a new machine the original licensee (your brother) does not have access to, you are infringing copyright.</p>
<p>Merely copying the files onto a Linux partition won't constitute infringement as it's the same commercial software on the same system, just with a different OS (IIRC correctly the Steam version of Doom uses DOSBOX, a DOS emulator, to run the original code on both Windows and Linux. The only difference between the Linux and Windows versions are the DOSBOX builds, and DOSBOX is open source software that permits this).</p>
<p>To get it to actually run on Linux, you'd need to either get a source port or a copy of DOSBOX (both are free to download), but neither actions would change the legality of it.</p>


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Question Title: What is the origin of the term “court” as a reference to the judicial institution?

Question Body: <p>Does the legal usage of the word court as in a court of law derive from the idea of a royal court, as an expression of the idea that the original courts of law were ultimately simple vehicles for the exercise or discharge of royal authority on behalf of the royal sovereign?</p>
<p>If not, then what is the origin of the use of the word court to denote the judicial institutions that we call courts of law?</p>


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Answer 1: <blockquote>
<p>Does the legal usage of the word court as in a court of law derive from the idea of a royal court, as an expression of the idea that the original courts of law were ultimately simple vehicles for the exercise or discharge of royal authority on behalf of the royal sovereign?</p>
</blockquote>
<p><a href="https://en.wikipedia.org/wiki/Court#Etymology" rel="noreferrer">Yes</a>:</p>
<blockquote>
<p>The meaning of a judicial assembly is first attested in the 12th century, and derives from the earlier usage to designate a sovereign and his entourage, which met to adjudicate disputes....</p>
</blockquote>


Tags: legal-terms, legal-history


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Question Title: What&#39;s the default copyright transfer for a magazine article, in absence of a written contract?


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Question Body: <p>Suppose an author sells an article to a magazine in the United States, but without a written contract and without any oral discussion of what rights were being sold. The magazine comes out containing the article, and everyone is happy. Now, many years later, the magazine wants to include the article in a new bound volume of the magazine's contents, without further permission from or payment to the author. Can the author object?</p>
<p>In light of 17 USC sec. 204(a), I assume the burden of proof would be on the publisher to show a written agreement to transfer more than the right to publish the article once. And since there is no written agreement, the publisher would lose if the author took it to court.</p>
<p>So, it seems like a simple answer. But in the law I'm always amazed to discover different angles and factors I hadn't thought of. Hence this post.</p>


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Answer 1: <h2>None</h2>
<p><strong>Transfer</strong> of copyrights or exploitation rights <strong>always</strong> requires a written contract.</p>
<p><strong>Licensing</strong> does not require a written contract.</p>
<h2>HOWEVER....</h2>
<p>&quot;An author sells an article to a magazine&quot; is a special situation: that is acceptance of the written terms of sale that were in place when the article was sold. That <strong>is</strong> a written contract, and typically they buy the article with very specific rights. And... things really can get murky for really old publications like <a href="https://www.aetherial.net/lovecraft/conclusion.html" rel="noreferrer">Weird Tales</a></p>


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Answer 2: <h2>There is no default</h2>
<p>The terms of each contract define what rights are transferred and what are retained. Subject to the law in specific jurisdictions …</p>
<ul>
<li><p>In some jurisdictions, a copyright transfer requires a written agreement, in others, it doesn’t. However, I can grant an exclusive, perpetual, all-rights licence which is practically a copyright transfer without it having to be in writing.</p>
</li>
<li><p>Some jurisdictions allow a licence or copyright transfer to be cancelled after a given time period. In some this may be automatic, in others, the author must take specific steps.</p>
</li>
<li><p>Some do not allow the transfer of some rights - like moral rights, and others do not allow any transfer, while still others will let you give away the farm.</p>
</li>
</ul>
<p>Notwithstanding, assuming the contract is lawful in the relevant jurisdiction, then what it says goes.</p>


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</li>
</ul>
<p>Notwithstanding, assuming the contract is lawful in the relevant jurisdiction, then what it says goes.</p>
<p>If there is dispute about the terms of the agreement, including disputes about if there was a written agreement now lost, well, courts resolve those types of disputes all the time. The consider the evidence and who bears the burden of proof on each assertion and make a ruling about what the agreement was.</p>
<p>There may be testimony of people who witnessed the events, there may be testimony of standard-form contracts that were typically used at the time, there may be written correspondence, there may be payment slips, etc. The trier of fact has to weigh all that and decide who’s case is proved.</p>


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Answer 3: <p>Your conclusion is correct under US law. 17 USC 204(a) says</p>
<blockquote>
<p>A transfer of copyright ownership, other than by operation of law, is
not valid unless an instrument of conveyance, or a note or memorandum
of the transfer, is in writing and signed by the owner of the rights
conveyed or such owner’s duly authorized agent.</p>
</blockquote>
<p>Therefore, the magazine only has two legal options for publishing. First, if the author is an employee, the magazine is the author and this is a work for hire, which is contrary to your presumption. Second, the work may be licensed, which can include an implicit license. A transfer has to be sufficiently explicit that it is a complete transfer of rights, and not merely suggestive.</p>


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<p>Implied licenses are valid but their conditions are not crystal clear, see for example Latimer v Roaring Toyz, 601 F.3d 1224, Pelaez v McGraw Hill, 399 F. Supp. 3d 120. <a href="https://www.ce9.uscourts.gov/jury-instructions/node/283" rel="nofollow noreferrer">This instruction</a> on implied licenses say how the defendant can establish that there is such a license.</p>
<blockquote>
<p>the defendant has the burden of proving that:</p>
<ol>
<li>the defendant requested that the plaintiff create a work; 2. the plaintiff made that particular work and delivered it to the defendant;
and 3. the plaintiff intended that the defendant [copy] [distribute]
[use] [retain] the plaintiff's work.</li>
</ol>
</blockquote>
<p>If the court cares about the first test (which is a bit ritualistic), there was never an implied license, that is, the magazine erred in not securing a <em>written</em> license. An implied license cannot be perpetual or exclusive.</p>


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Question Body: <h1>There are actually two questions here.</h1>
<p><strong>First</strong>, why are sections not in order? You have 28 USC §1 through §6, which talk about the Supreme Court, then you have §41 to §49 (appeals courts), then §81 to §144 (district courts) immediately afterwards.</p>
<p>Why is this? Does Congress do this sort of thing to emphasize the &quot;separation&quot; between the types of definitions, or is it just the case that they're &quot;reserving&quot; numbers in case they need to add something (like §40 before §41)? Other examples of this:</p>
<ul>
<li>17 USC §101 through §122, followed immediately by §201 to §205;</li>
<li>22 USC § 1 through §136, followed immediately by §141 to §183;</li>
<li>18 USC § 2381 through § 2391, followed immediately by § 2421 to § 2429.</li>
<li>51 USC § 10101 followed by § 20101, &quot;implying&quot; they skipped 10,100 sections (except they didn't).</li>
</ul>


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<li>51 USC § 10101 followed by § 20101, &quot;implying&quot; they skipped 10,100 sections (except they didn't).</li>
</ul>
<p><strong>Second</strong>, why do certain portions of the US Code look like, well, these oddly listed names? Did Congress just run out of numbers or were they trying to &quot;squeeze an entirely new section&quot; in but couldn't quite make it?</p>
<ul>
<li>16 USC §470x-6, § 470aaa, § 590z-11, §668ss</li>
<li>15 USC §77bbbb, 79z-6, 80b-21</li>
<li>22 USC §2799aa-2</li>
<li>42 USC §300mm-62, 1397mm, 2000aa-5, 2000bb-4, 2000gg-6</li>
</ul>
<p>To me the US Code looks like, well, spaghetti code. And I know lawyers are the ones who look at it and I think they probably couldn't care less about how it looks as long as the law is there, but I'm just curious as to why they opted for the approach of sticking random letters on some of the numbers.</p>


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Answer 1: <p>Many of the titles in the U.S. Code <a href="https://uscode.house.gov/codification/positive_law_codification.pdf" rel="nofollow noreferrer">are not positive codifications</a>. Instead they are consolidations, classifications, and editorial codifications made by the Office of the Law Revision Counsel.</p>
<p>Title 42 (noted in phoog's answer) is not a positive codification. This means Congress did not choose its numbering scheme. Only the titles with an asterisk <a href="https://uscode.house.gov/#.xhtml" rel="nofollow noreferrer">on this page</a> have been enacted as positive law.</p>


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<p>Instead, the law codified into Title 42 are the various public statutes passed by Congress over the years that the Law Revision Counsel has included in Title 42. It is the public statutes that have the force of law. See e.g. <a href="https://uscode.house.gov/statviewer.htm?volume=97&amp;page=1301" rel="nofollow noreferrer">Pub. L. 98-183</a>, whose elements the Law Revision Counsel put in Chapter 20A of Title 42.</p>
<p>The Law Revision Counsel says:</p>
<blockquote>
<p>Title 42, The Public Health and Welfare, is a non-positive law title. Title 42 is comprised of many individually enacted Federal statutes––such as the Public Health Service Act and the Social Security Act––that have been editorially compiled and organized into the title, but the title itself has not been enacted.</p>
</blockquote>


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</blockquote>
<p><a href="https://uscode.house.gov/about_classification.xhtml" rel="nofollow noreferrer">Whether a provision of a public statute is included in the U.S. Code and where it will be included is determined by the Law Revision Counsel</a>, although placement may be obvious when a statute amends an already codified statute.</p>
<p>As for the cramped numbering (<a href="https://law.stackexchange.com/questions/94580/why-are-some-sections-of-the-us-code-formatted-so-weirdly#comment217877_94580">contrary to the comment of Weather Vane</a>, which says that insertions would require renumbering of subsequent clauses), the Law Revision Counsel says:</p>
<blockquote>
<p>Chapters based on statutes that have been amended many times may have cumbersome numbering schemes with section numbers such as 16 U.S.C. 460zzz-7 and 42 U.S.C. 300ff-111.</p>
</blockquote>


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<p>Chapters based on statutes that have been amended many times may have cumbersome numbering schemes with section numbers such as 16 U.S.C. 460zzz-7 and 42 U.S.C. 300ff-111.</p>
</blockquote>
<p>Where the U.S. Code skips over large portions of section numbers this could be an intentional decision to leave room for growth, especially in a title that has undergone positive codification process through Congress, or it could be the result of previous sections that have been removed after repeal.</p>
<p>For more background, see the <a href="https://uscode.house.gov/detailed_guide.xhtml" rel="nofollow noreferrer">detailed guide</a> from the Law Revision Counsel.</p>


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Answer 2: <blockquote>
<p>Does Congress do this sort of thing to emphasize the &quot;separation&quot; between the types of definitions, or is it just the case that they're &quot;reserving&quot; numbers in case they need to add something (like §40 before §41)?</p>
</blockquote>
<p>You could look at it both ways.  The first section in a chapter or subchapter is often one more than a multiple of 100, so 1, 101, 201, etc.  This emphasizes the topical grouping but it also leaves space for new sections at the end of each subchapter.</p>
<blockquote>
<p>Did Congress just run out of numbers or were they trying to &quot;squeeze an entirely new section&quot; in but couldn't quite make it?</p>
</blockquote>
<p>Yes.  There are instances of both.  It does create a good deal of confusion, as you've noticed.</p>


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</blockquote>
<p>Yes.  There are instances of both.  It does create a good deal of confusion, as you've noticed.</p>
<p>For example, <a href="https://www.law.cornell.edu/uscode/text/42/chapter-20A" rel="nofollow noreferrer">chapter 20A of title 42</a> comprises sections 1975, 1975a, 1975b, etc.  But section 1975 also has a subsection 1975(a).  Similarly, 1975a has a subsection 1975a(a). Confusing!  For some reason, congress decided to squeeze almost the entirety of civil rights legislation between section 2000 and section 2001 (part of chapter 21 and all of chapters 21A through 21G).  Why, I do not know.</p>


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Question Title: How could someone whose trades are being copied be liable to the person who is doing the copying?


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Question Body: <p><a href="https://web3isgoinggreat.com/?id=nft-copytrader-tricked" rel="nofollow noreferrer">It is reported</a> that someone was copying the trades of a noted NFT trader.  This noted NFT trader profited from this by making an inflated bids on one of his own NFTs, and when the copycat replicated the trades on other NFTs they were purchased for ~10 times the usual rate.</p>
<p><a href="https://twitter.com/ThinkingETH/status/1687888745465536513" rel="nofollow noreferrer">The copycat (ThinkingETH) has since described</a> the loss as &quot;stolen funds&quot;, and <a href="https://twitter.com/lex_node/status/1687916676380033025?s=20" rel="nofollow noreferrer">someone said</a>:</p>
<blockquote>
<p>I unironically think @ThinkingETH might have good legal claims to get their ETH back from the bot 'trick' if they hire a skilled litigator. Legally the issues are a bit more nuanced than they might be normatively from the standpoint of cryptotwitter.</p>
</blockquote>


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</blockquote>
<p>Is there a case here?  Is there some nuanced issues that could mean that the seller is responsible for the seller to have &quot;stolen&quot; from the buyer?  Is there a civil case to be made that the funds should be returned?  Any jurisdiction would be interesting, as it seems to matter little where these events occur.</p>


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Answer 1: <h2>This type of fraud is called <a href="https://en.wikipedia.org/wiki/Shill#Auctions" rel="nofollow noreferrer">shill bidding</a></h2>
<p>Unless the rules of the auction allow it, a vendor is not permitted to bid on their own item. Even when they are, such vendor bids may be disclosed.</p>
<p>The relevant laws date from well before the rise of online auctions but they are just as applicable. There have been successful prosecutions to my knowledge, including jail time, in the <a href="https://www.theguardian.com/artanddesign/2006/aug/02/art.crime" rel="nofollow noreferrer">USA</a> and the <a href="https://www.pinsentmasons.com/out-law/news/ebay-shill-bidder-fined-3500" rel="nofollow noreferrer">UK</a>. A quick Google search shows these are not unique.</p>
<p>A victim of such a fraud can seek restitution through a civil claim.</p>


Tags: contract-law, theft, cryptocurrency


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Question Title: Is avoiding captcha illegal?

Question Body: <p>This question came to mind reviewing <a href="https://stackoverflow.com/a/76858283/6213883">this</a> SO answer. There is this <a href="https://law.stackexchange.com/questions/1411/are-captcha-solver-farms-illegal">similar question here</a>, but it's 8 years old, and covers only the UK and north America.</p>
<p>So, I would like to know if, in the European Union, or at least in France, whether bypassing/avoiding captcha is illegal or not.</p>


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Answer 1: <p>It’s not “bypassing the captcha” that is the problem, but accessing a server in a way that you are not allowed to.</p>
<p>Say you are a human being, you visit a website, there’s a captcha, and your eyesight is quite bad. The website is ok with humans using the site. So asking your nephew to enter the captcha is fine.</p>
<p>Now you are running a bot network. The site doesn’t want your bots. The captcha is there to stop them. The problem is not these bots getting around the captcha, it’s them accessing the server. The captcha might make sure that the site counts as “protected” though, which might make accessing it without authorisation more serious.</p>


Tags: european-union, france


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Question Body: <p>To successfully bring a claim for maliicous falsehood in the UK, one has to show that one has suffered &quot;special damages&quot;, which are actual damages suffered as a direct consequence of a malicious, false statement.</p>
<p>However, one does not have to do this if s3(1) of the Defamation Act 1952 applies. This is below:</p>
<blockquote>
<p>In an action for slander of title, slander of goods or other malicious
falsehood, it shall not be necessary to allege or prove special
damage—</p>
<p>(a) if the words upon which the action is founded are
calculated to cause pecuniary damage to the plaintiff and are
published in writing or other permanent form; or</p>
<p>(b) if the said words
are calculated to cause pecuniary damage to the plaintiff in respect
of any office, profession, calling, trade or business held or carried
on by him at the time of the publication.</p>
</blockquote>


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are calculated to cause pecuniary damage to the plaintiff in respect
of any office, profession, calling, trade or business held or carried
on by him at the time of the publication.</p>
</blockquote>
<p>But surely this section of the Act would always apply. The loss suffered as a result of a statement is always going to be economic (e.g., lost investment, sales, etc.) and the statement being malicious means that it was intended to cause damage when it was made.</p>
<p>Thus, whis this section of the Act considered to be an exception to the general rule, when in fact it would seem to apply in all cases?</p>


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Answer 1: <h3>The section exempts the plaintiff from having to prove or even plead special damages when they instead plead and prove that the words were intended to cause pecuniary (even if not yet realized) damages</h3>
<p>This statutory exception has also been adopted in Canadian jurisdictions and they have turned to U.K. jurisprudence to understand its meaning (<em>Almas et al. v. Spenceley</em>, <a href="https://canlii.ca/t/g17r5" rel="nofollow noreferrer">[1972] 2 O.R. 429</a> (C.A.)):</p>
<blockquote>
<p>The Court was referred to a number of cases under the law as it then stood whereby it was strictly required that special damages be set forth in the pleading and whereby no plea of general damages would be entertained. This was changed in England by the Defamation Act, 1952 (U.K.), c. 66, s. 3 (1), and here by a similar section, s. 19(a) of the Libel and Slander Act, 1958
(Ont.), c. 51 ...</p>
</blockquote>


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(Ont.), c. 51 ...</p>
</blockquote>
<p>The Ontario Court of Appeal quoted from <em>Clavet v. Tomkies et al.</em>, [1963] 3 All E.R. 610 (Lord Denning) (emphasis mine):</p>
<blockquote>
<p>All I would say is that, as I read s. 3 of the Defamation Act, 1952, <strong>it gives a benefit to a plaintiff in that it is not necessary to plead or prove special damage if the words are calculated to cause pecuniary damage</strong>.</p>
</blockquote>
<p>This means that special damages (actual and provable pecuniary losses up to the date of trial) need not be proven nor even pleaded if the words <em>are calculated</em> (meaning <em>intended</em> to) cause pecuniary damage (which might have not yet occurred, but might be proven as likely future damages at trial).</p>
<p><em>Brown on Defamation</em> confirms that generally:</p>
<blockquote>


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<p><em>Brown on Defamation</em> confirms that generally:</p>
<blockquote>
<p>there must be an express allegation that the plaintiff has suffered some particular special damage as a result of the slander, unless there is some special statutory provision foregoing an allegation of special damages where the words are calculated to cause pecuniary damage with respect to an office, profession or trade.</p>
</blockquote>
<h3>This is not redundant with the maliciousness element</h3>
<p>Malice need not be the intent to cause pecuniary loss. Malice can be made out by any improper motive, including spite, or an intention to cause pure reputational harm with no regard for pecuniary damages.</p>
<p>In my view, this section has the greatest effect at the pleading stage. I agree that in many (although not all) malicious falsehood cases, proof of malice will double for proof of an intention to cause pecuniary damages.</p>


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Answer 2: <h2>Pecuniary and special damages are different types of <a href="https://www.hoddereducation.co.uk/media/Documents/magazine-extras/Law%20Review/LawRev%2014_2/LawReview14_2_poster.pdf" rel="nofollow noreferrer">damages</a></h2>
<p>Under UK law, a court can award:</p>
<ul>
<li>Special damages: &quot;quantifiable financial losses <strong>up to the date of trial</strong>&quot;. These have to be proved.</li>
<li>General damages: &quot;This term covers all losses which are not capable of exact quantification, and are further divided into pecuniary and non-pecuniary damages.&quot;
<ul>
<li>Pecuniary damages: &quot;The major head of pecuniary damages is future loss
of earnings&quot; - this is what s3(1) is primarily aimed at. In personal injury cases, it also covers future care costs - this could be relevant if the defamation caused mental harm.</li>


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of earnings&quot; - this is what s3(1) is primarily aimed at. In personal injury cases, it also covers future care costs - this could be relevant if the defamation caused mental harm.</li>
<li>Non-pecuniary losses: Pain and suffering, Loss of amenity, and damages for the injury itself. Unlikely to be relevant in a defamation case.</li>
</ul>
</li>
<li>Provisional damages: &quot;The general rule is that only one award of damages
can be made. If damage turns out to be more serious
than was anticipated at the time of the award, there
is no further action available to the claimant. This
can cause obvious hardship in personal injury cases.
Under the terms of the Supreme Court Act 1981
(s.32a) the court has power to make a provisional
award that allows the claimant to return to court
should further anticipated serious deterioration occur.&quot;</li>
</ul>


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Question Title: Can teachers search our dorms without our explicit consent if they have &quot;suspicion&quot;?


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Question Body: <p>I am a girl attending a boarding high school in the US. In June, some students who returned to the dorm early saw some male teachers exiting their rooms. They reportedly ran back to the school building without answering any questions when they saw the students. That night, multiple students shared that their drawers were seemingly searched and in some cases underwear and other things were missing.</p>
<p>In the monthly school meeting the search became the main topic. Eventually a high-ranking teacher attempted to clarify what happened. He claimed that they &quot;had suspicion&quot; that someone was hiding illegal firearms in their room, but they could not narrow it down so they had to search all the rooms, both the boys' and the girls'. They declined to explain any further on the reasoning behind the suspicion and merely added they reported it to the police and received permission. The session was then dismissed much earlier than usual.</p>


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<p>The speaker was visibly shaking so I doubted that was the real reason. The distrust only grew when we contacted the local police and an officer told us that they never received such report from our school.</p>
<p>The rhetoric has changed ever since. Here is a non-exhaustive list of excuses they came up to cover up the situation.</p>
<ol>
<li>Local police authorized search due to firearm suspicions - debunked, never alerted the police</li>
<li>A majority of all students agreed to the search - debunked, no school-wide poll</li>
<li>The student council unanimously agreed to the search - debunked, no such topic was discussed</li>
<li>A majority of all parents agreed to the search - debunked, no such notice to parents</li>
<li>A majority of parents in the school board agreed to the search - debunked, never happened</li>
<li>The teachers were substituting dorm workers on vacation to fix dorm equipment - debunked, workers were present</li>
</ol>


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<li>The teachers were substituting dorm workers on vacation to fix dorm equipment - debunked, workers were present</li>
</ol>
<p>The list goes on and on and I find it pathetic that they are still not apologizing even though two months have passed and we are in vacation. I wonder, had at least one of the excuses listed above been true, would that have validated male teachers from intruding our private space? If our parents or our student representatives agree, can they really enter our rooms even though we were never asked nor notified about it?</p>


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Answer 1: <p>A private school in the US is not bound by the 4th Amendment requirement for searches to be &quot;reasonable&quot;, just as parents do not need a search warrant to search your room. Instead, limitations would arise from contract law. This typically means that per the contract whereby you can go to that school, you agree to certain things (as do they). This may or may not include the power for a teacher to conduct a surprise inspection.</p>
<p>It just depends on what is said in the contract regarding dorm room searches. Typically, adjudication of this type of matter is left to parental outrage rather than courts, unless there is a clear violation of the contract terms.</p>


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Answer 2: <blockquote>
<p>in some cases underwear and other things were missing.</p>
</blockquote>
<p>This is a bigger problem than merely entering dorms. Theft is unambiguously a crime. Additionally, theft of underwear, especially from underage girls, is likely to be a sexual offence (depending on where you are, of course). Proving it may be difficult though.</p>
<p>If your parents agreed to the search, of course, you have no authority to complain. However I would be frankly shocked if there was not near-unanimous protest by parents at this. This is more likely the route you need to go down. A mass protest by parents at a fee-paying school tends to get the attention of the board!</p>


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Answer 3: <h2>Privacy</h2>
<p>Between people, there exists a common law right to <a href="https://en.wikipedia.org/wiki/Privacy_laws_of_the_United_States#Modern_tort_law" rel="nofollow noreferrer">privacy</a>, independent of the quasi-constitutional right of people against the government.</p>
<p>In this case, the specific tort the school has committed is <a href="https://en.wikipedia.org/wiki/Intrusion_on_seclusion" rel="nofollow noreferrer">intrusion on seclusion</a>:</p>
<blockquote>
<p>The elements of an intrusion on seclusion claim are:</p>
<ul>
<li><p>The defendant intentionally intruded upon the plaintiff's seclusion or private concerns.</p>
</li>
<li><p>The intrusion would be highly offensive to a reasonable person.</p>
</li>
<li><p>The intrusion caused the plaintiff anguish and suffering.</p>
</li>
</ul>
<p>There is no requirement that the defendant disclosed any facts about the plaintiff, as in a public disclosure claim. Liability attaches to the intrusion itself.</p>


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</li>
</ul>
<p>There is no requirement that the defendant disclosed any facts about the plaintiff, as in a public disclosure claim. Liability attaches to the intrusion itself.</p>
</blockquote>
<p>You will note that having a good reason for the intrusion is not a defence.</p>
<h2>Defences</h2>
<h3>Permission</h3>
<p>There is no tort if the person (or their legal guardian) consents to the search. Such a consent might be in the contract between the student (or their parents as guardians) and the school.</p>
<p>The consent may be in general terms such as allowing the school to “take reasonable steps” to enforce school rules or protect the health and safety of students, staff, and visitors. Whether what the did was in line with the contract would depend on the circumstances - it could go either way.</p>
<h3><a href="https://en.wikipedia.org/wiki/In_loco_parentis" rel="nofollow noreferrer"><em>In loco parentis</em></a></h3>


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<h3><a href="https://en.wikipedia.org/wiki/In_loco_parentis" rel="nofollow noreferrer"><em>In loco parentis</em></a></h3>
<p>Notwithstanding the contract, a school stands <em>in loco parentis</em> (in the place of the parent) for any minor children in its care are control. So for anyone under the age of 18, the school can consent to the search on behalf of the student, just like a parent could.</p>
<h3>Health and Safety legislation</h3>
<p>There is almost surely a state law that imposes a duty on the school to provide a safe environment. Such a law may make it legal for the school to conduct a search for a firearm without needing permission.</p>


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Answer 4: <p><a href="/questions/tagged/united-kingdom" class="post-tag" title="show questions tagged &#39;united-kingdom&#39;" aria-label="show questions tagged &#39;united-kingdom&#39;" rel="tag" aria-labelledby="tag-united-kingdom-tooltip-container">united-kingdom</a></p>
<p>In the UK at least, boarding house parents generally operate in loco parentis of the biological parents. This is usually contractually established as part of the attendance contract.</p>
<p>This gives the boarding house parents most of the rights the biological parents would have within the context of the boarding house. This can even extend outside of this context in-extremis if the parents can't be contacted (for example if consent for emergency surgery is needed).</p>
<p>This, without a doubt, extends to conducting searches of students' dorms with, or without, their consent.</p>
<hr />


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<p>This, without a doubt, extends to conducting searches of students' dorms with, or without, their consent.</p>
<hr />
<p>That being said, if we take the events as you describe them, this sounds extremely suspect. I'd be looking to raise this with school governance as this sort of &quot;search&quot; sounds like it would clearly be against school policy.</p>
<p>It is also unclear whether the staff-members in question would be the ones in-loco parentis. Unless they were the house parents, I sincerely doubt it.</p>
<p>The missing underwear would also be seemingly theft. While the house-parents would have the right to confiscate property, this should usually be logged, placed in a safe, and returned to the student/parents of the student at the first opportunity (likely the next time they are going home or after a punishment period had expired). I also can't see any justifiable reason for confiscating underwear...</p>


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Question Body: <p>A retail chain my friend worked for wanted to boost sales of a membership that included benefits like free shipping and preferred pricing. They gave each employee a small bonus on 1 paycheck equal to the price of the membership and employees were told the bonus was to be used to buy a membership for themselves. Apparently, they believed it would help employees sell the membership if they experienced the benefits themselves.</p>
<p>From the company's perspective, sales of the membership at POS were an important metric for the company; there were long-term company goals for membership sales. Presumably they gave employees money for the membership instead of the membership itself so they could transact more sales and claim to be closer to hitting their total sales goal.</p>
<p>Was it legal for the company to make this additional payment while requiring it  be used to buy their own service?</p>


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Answer 1: <p>If the employee has the choice - bonus and membership, or no bonus - then I expect the offer to be legal. Since it is a real bonus and part of your salary you will have to pay income tax on it.</p>
<p>What might be illegal, but not your concern, is if your company tells investors how well the company is doing, and how well the membership scheme is doing, when in reality 80% of members are employees paying effectively nothing.</p>


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Answer 2: <p>It is unlikely that the company can compel existing employees to enter into an additional personal membership contract with them, or use their facilities in a personal capacity.</p>
<p>However, I wouldn't necessarily presume ulterior motives.</p>
<p>It is extremely useful for anyone involved in customer service, to understand what exactly the customer sees and experiences as part of the interaction.</p>
<p>Arranging to make a small payment to the workers through the payroll so that they can follow the exact sign-up process, is not just the most thorough approach, but (I imagine more importantly to the bosses...) probably perceived to be the cheapest and simplest approach.</p>
<p>In terms of salesmanship, it probably would have been a better approach for the bosses to invite willing employees to sign up for personal membership, and to have made available the facility for an employee to request a small subsidy for the purpose.</p>


Tags: united-states, payment


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Question Title: How can I ensure I am contacted when a specific relative dies or is hospitalised?

Question Body: <p>I have an Uncle in declining years that lives a state or two away. Is there any protocol for having local emergency services call my cell should my Uncle be taken to hospital, becomes unconscious, passes away?</p>
<p>I have spoken with him, know his wishes, and call weekly, but circumstances may arise. How would I receive a call if he is not able to call me or communicate with emergency personal?</p>


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Answer 1: <blockquote>
<p>How would I receive a call if he is not able to call me or communicate
with emergency personal?</p>
</blockquote>
<p>There is no ironclad method. The law does not specify how authorities should determine contact information for next of kin. As a practical matter some of the better methods (few people use all of them) are:</p>
<ol>


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<ol>
<li><p>Create an &quot;emergency contact&quot; business card and put it that person's wallet and/or purse. Put another such card in a prominent place in their home like taped to the wall next to their phone charger or under a magnet on the refrigerator or on a cork board in the house. Make sure that the person has their own ID and medical insurance card and a card containing any medical alert information (e.g. drug allergies and blood type and religious objections to any particular sort of treatment) there as well. A &quot;wallet biopsy&quot; is standard operating procedure for first responders when the identity of a person suffering an emergency is unknown.</p>
</li>


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</li>
<li><p>Enter your name as an &quot;in case of emergency&quot; (ICE) number on that person's cell phone. You can also set up their cell phone to authorize you to locate it with an app. More crudely, you can put a sticker that says &quot;emergency contact&quot; with your name and phone number physically on the outside of the person's phone. The mechanics of putting emergency information in a phone can be found at <a href="https://www.grangeinsurance.com/tips/in-case-of-emergency-how-to-prepare-your-phone" rel="noreferrer">this insurance company website</a>.</p>
</li>
<li><p>If they have a medical alert or home security system or medic alter bracelet, have them put you as an emergency contact for that.</p>
</li>


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</li>
<li><p>If they have a medical alert or home security system or medic alter bracelet, have them put you as an emergency contact for that.</p>
</li>
<li><p>Put a medical power of attorney naming you as an agent (if the person is willing to execute one) together with your contact information in the patient file of all of the person's medical providers such as a treating primary care physician, home health care person, etc. Keep the number for these providers on hand so that you can call them to ask if there is any news or appointments have been missed.</p>
</li>
<li><p>Have the person list you as an emergency contact in places that keep records of one such as an employer, membership based gym, a college or educational institution where the person is taking some classes, and their nursing home or assisted living center (if any).</p>
</li>


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</li>
<li><p>Provide your contact information to (and get contact information from) neighbors, landlords, financial advisors, accountants, lawyers, and family members of the person who are likely to be contacted and ask that they let you know if something happens. Spend at least a little time with as many of them as possible in person, when you are in town, to the fullest extent possible. Become friends with them on social media and interact with them every once and a while in that context. Put them on your Christmas letter list. Share your excess tomatoes and strawberries with them. Send them little thank you notes and gifts when you learn that they did something nice for the person like helping them shovel snow or trimming the shrubs on their shared property line. Little courtesies create a moral impetus on their part to take the trivial effort of calling you to let you know that something is up when it happens.</p>
</li>


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</li>
<li><p>Have a local contact you can have look into the situation if you are unable to reach the person at the usual times, ideally someone with a spare key and security codes to the house and/or apartment building or gated community. If there is no one who can do that, local law enforcement can be asked to do a &quot;welfare check&quot; on the person.</p>
</li>
<li><p>Have a copy of a will, power of attorney, or HIPPA release that allows a third party to corroborate your connection to the person and be in a position to tell someone local where the original will is located. It is also good to keep a log or journal of your contacts with the person so that you can demonstrate that when they go missing that it really is an unusual and concerning event and to demonstrate that you are in regular contact with the person.</p>
</li>
</ol>


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</li>
</ol>
<p>For example, I have a client who died this week while his emergency contact person was visiting family in another country. When she was unable to reach him, she checked with his doctor, learned that he had failed to show up for a medical appointment scheduled for earlier that day, and then had her son who was still in town use a spare key she had given him to check in on my client, where her son had the misfortune of discovering the deceased client.</p>


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Answer 2: <p>New Jersey has <a href="https://www.state.nj.us/mvc/drivertopics/nextofkin.htm" rel="noreferrer">a very specific registry for next-of-kin</a></p>
<blockquote>
<p>The Next-of-Kin Registry is a New Jersey statewide web-based system
that allows individuals at least 14 years of age to voluntarily submit
and maintain emergency contact information through the New Jersey
Motor Vehicle Commission. This non-public information will only be
used by law enforcement officers to locate designated emergency
contacts in an event that a person is involved in a vehicle crash that
renders him or her unable to communicate.</p>
<p>The Next-of-Kin Registry was established in response to &quot;Sara's Law,&quot;
which was created in memory of Sara Elizabeth Dubinin from Sayreville.
Miss Dubinin became unresponsive following a motor vehicle crash in
September 2007 and lapsed into a coma before her parents could be
notified. She eventually passed away. The law sought to ensure that an


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September 2007 and lapsed into a coma before her parents could be
notified. She eventually passed away. The law sought to ensure that an
emergency contact could be notified immediately in the event of a
vehicle crash.</p>
</blockquote>
<p>OP tagged the question for New Jersey so if the uncle lives in NJ, OP can use this registry.</p>


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Answer 3: <p>The Next Of Kin Registry (<a href="https://nokr.org/" rel="nofollow noreferrer">NOKR</a>) was established as a FREE tool for daily emergencies and national disasters... You may be able to register your emergency contacts with your state DMV or Motor vehicle office check
with your State agency for more information as many states have adopted this process. Currently we are aware of <strong>SC, DE, CO, NJ, <a href="https://www.flhsmv.gov/driver-licenses-id-cards/florida-granddriver/register-emergency-contact-information/" rel="nofollow noreferrer">FL</a>, NV and OH.</strong></p>
<p>Appears a few states have this option directly.</p>


Tags: united-states, medical, new-jersey, emergencies


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Question Title: Can I use my browser to change the prices of things I buy online?

Question Body: <p>I can use Chrome's inspector tools to modify my local copy of the html on websites I visit. After changing the prices on a page in this way, for some websites I believe I can actually proceed through a checkout process, and buy items at whatever new altered price I want. </p>

<p>What kind of trouble can I get into for this - if any?</p>


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Answer 1: <p>You can get arrested for theft and/or fraud. This is not some new way to steal items; changing price tags started approximately the day after price tags were invented. Some state laws handle it explicitly, some implicitly; for instance, Maryland defines &quot;deception&quot; in its <a href="http://law.justia.com/codes/maryland/2010/criminal-law/title-7/subtitle-1/7-101/" rel="noreferrer">theft statute</a> to include &quot;(vi) remove or alter a label or price tag;&quot; theft is <a href="http://law.justia.com/codes/maryland/2010/criminal-law/title-7/subtitle-1/7-104/" rel="noreferrer">committed</a> if, among other possibilities,</p>
<blockquote>
<p>(b)  Unauthorized control over property - By deception.- A person may not obtain control over property by willfully or knowingly using deception, if the person:</p>
<p>(1) intends to deprive the owner of the property;</p>
</blockquote>


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</blockquote>
<p>In other states, caselaw says that switching price tags is deception, and doing it for gain is fraud. See <a href="https://scholar.google.com/scholar_case?case=11855366659164977030" rel="noreferrer">this California case</a> in which switching price tags and buying the item is completed generic &quot;theft by false pretenses&quot; if the cashier didn't know you had switched the tags and relied on the new ones (in that case, the cashier knew so it was just attempted theft); see also this <a href="https://scholar.google.com/scholar_case?case=11506652602115716945" rel="noreferrer">Nebraska</a> case. Notably, the deception there is not tied to a statute saying &quot;switching physical price tags is deception;&quot; rather, it's deception because it involves knowingly making a false representation of a material fact (i.e. the true price of the goods) with intent to fool the store into thinking the real price is the lower one.</p>


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<p>As a general rule, many criminal laws handle new technology by looking at how you're using it. If what you're doing would be flagrantly illegal if not done on a computer, it will likely be illegal if you use a computer.</p>
<p>Because you used the Internet, you might theoretically face further charges. If this is considered to be deception, you could in theory be on the hook for <a href="https://www.law.cornell.edu/uscode/text/18/1343" rel="noreferrer">wire fraud</a>. This is a federal felony offense. While small-scale offenses would more likely be prosecuted at the state level (and if you are federally prosecuted for one small fraud you'll probably face 0-6 months in jail instead of the 20-year maximum sentence for wire fraud), it is in fact a federal crime to commit wire fraud.</p>


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Answer 2: <p>Under the common law, you'd be committing a felony: theft by false pretenses. Each state has probably replaced the common law definition with a statute, and additionally there'd be a federal felony law for fraud via the internet. Even if the retailer noticed it and cancelled the transaction, they could still report you for attempted theft.</p>

<p>It is true that you'd be unlikely to face prosecution with higher priorities in law enforcement. Nevertheless it is a terrible idea to commit multiple felonies just because you are playing the odds that no one will care enough to charge you.</p>


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Answer 3: <p>If you do this successfully, then you used your computer's browser to hack into the company's server that handles sales. Computer Fraud Act, &quot;Knowingly accessing a protected computer and causing damage and loss to that computer&quot;.</p>
<p>Now <em>if</em> you are successful, then some software developer should obviously be fired for gross incompetence. If your browser sends a request to buy 100 items at $20 each instead of the correct price at $100 each, that request should very obviously not be allowed. But that's no excuse for you.</p>


Tags: united-states


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Question Title: Vietnamese branch of international company with too few sick leave days

Question Body: <p>Suppose that a person A  recently got a job in Vietnam from an international company based in Europe. FIt ism my understanding that the minimal sick leave days required in Vietnam is 30 days, but this company has it in the single digits.</p>
<p>Is this company violating Vietnamese labor laws? If yes, what can A do about it?</p>


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Answer 1: <p><strong>Such a person is not necessarily covered by Vietnamese employment law.</strong></p>
<p>It is common for employees from one country to work in another - that does not automatically make them subject to the second country’s employment law. Temporary overseas assignments (which can be days, weeks, months, or even years) generally do not change the jurisdiction of the employment contract providing the intention is that the employee will return at the employer’s cost at the end.</p>
<p>The particulars depend on the details of each nation’s laws and any treaties between them as well as the terms of the employment contract and the actual situation.</p>


Tags: labor-law, vietnam


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Question Body: <p>I am a Math teacher in a private school in the US. A majority of students consider probability and statistics a very boring topic and tend to focus significantly less compared to other topics. So last semester I reworked the curriculum and started playing games with decks of playing cards. I encouraged students to calculate probabilities, expected values, etc then come up with strategies to improve their odds of winning. I saw a meaningful boost in both engagement and grades.</p>
<p>I shared this teaching method in a message group. Some public school teachers liked the idea but had reservations about the legality of the content. They were worried about playing cards' connection to gambling, which could &quot;raise the eyebrows of school boards and other authorities&quot;. As far as I know minors playing card games is fine as long as there is no money or other things that have monetary value on the line.</p>


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<p>Of course school districts could decide to ban such content if they considered it undesirable, but is there any education-related legislation in any state that explicitly states that &quot;material that incites or resembles real-life gambling&quot; cannot be used in schools, blocking them from being introduced to the classroom in the first place?</p>


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Answer 1: <p><a href="/questions/tagged/england" class="post-tag" title="show questions tagged &#39;england&#39;" aria-label="show questions tagged &#39;england&#39;" rel="tag" aria-labelledby="tag-england-tooltip-container">england</a></p>
<p>Quite the opposite; although playing cards are not specifically mentioned, gambling education is actively encouraged in schools: but through the support of charities and the voluntary sector - not by statute.</p>
<p>The key players are:</p>
<ul>
<li><a href="https://pshe-association.org.uk/" rel="nofollow noreferrer">PSHE Association</a> (standing forPersonal, Social, Health and Economic) who, in partnership with <a href="https://www.begambleaware.org/" rel="nofollow noreferrer">BeGambleAware</a> have a host of <a href="https://pshe-association.org.uk/news/new-lesson-plans-tips-and-podcast-gambling-harm" rel="nofollow noreferrer">educational material</a>, including the:</li>
</ul>
<blockquote>


key: chroma:document
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href="https://pshe-association.org.uk/cs/c/?cta_guid=50c6e0e6-92e9-4d1f-9a15-5da562241d00&amp;signature=AAH58kGSD_ed7Nvd-Kw1GkD-viQPszkjzQ&amp;pageId=56950285437&amp;placement_guid=1330646f-9d66-4093-9513-646c4315d36a&amp;click=85c43571-7b60-484d-b498-7f4f94eeef2b&amp;hsutk=885cf4a5b093076b2a6e8e673fe3e534&amp;canon=https%3A%2F%2Fpshe-association.org.uk%2Fguidance%2Fks1-5%2Fgambling&amp;utm_referrer=https%3A%2F%2Fpshe-association.org.uk%2Fnews%2Fnew-lesson-plans-tips-and-podcast-gambling-harm&amp;portal_id=20248256&amp;redirect_url=APefjpEy83gr6SJimINCZkuhtbSYGtjRmXmVBKXHG9hYn2XVttrNiqd0lccEJs0H_GrCVxpPeV62XKkWM-z8tivNpblVYImc1OEgXhIZ2fnToQCCThEfK-smdMdeu0gsZnkaCAKBY-9WNeoI7k0pajrfbaEMdt5zpHAoIYyqI0plXDqILhiV15wCtqWGSa99nag2ylxgFXNKtguo9i5uY6Jf9hj1Eut0193Ql8-3D9x23vhlasveFkhlmSw_7G0AfydI22PoAepyAWyaW0T3zvIjbViT8SsNVJCdbqINcOwHnwVBC90-1Rud1_9p94QgsL1_wJFs3PKfT5P0LDTnngK3pLCQQ6siQfT1hAkmlIz4TdSfHeWnwvdTMLRj3WQPLr-U0kBaAhcVABYbRb6siPSN3aGLrCFJa_EZcSKv8GeJJQ8n5q14HJ4rj3FlWG_Crf3IeQHmbBKcR


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</blockquote>
<ul>
<li><a href="https://www.gamcare.org.uk/news-and-blog/news/preventing-gambling-harms-framework-for-effective-education-launched/" rel="nofollow noreferrer">GamCare</a> alongside <a href="https://www.ygam.org/" rel="nofollow noreferrer">YGAM</a> and <a href="https://gamblingeducationhub.fastforward.org.uk/" rel="nofollow noreferrer">Fast Forward</a> (from Scotland) and in line with <a href="https://d1ygf46rsya1tb.cloudfront.net/prod/uploads/2022/09/502048_Gam_YAD_Web-002.pdf" rel="nofollow noreferrer">PSHE Association guidance</a> launched the Gambling Education Framework, that:</li>
</ul>
<blockquote>
<p> provides a set of evidence-based principles to deliver effective gambling education for anyone who works with young people (aged 7 to 24) in a paid or voluntary capacity across a variety of formal and informal settings, including schools in England. </p>
</blockquote>
<hr />


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</blockquote>
<hr />
<p><sub>Although tagged <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a>, I have answered according to the <a href="https://law.stackexchange.com/help/on-topic">LawSE Help Centre</a>: &quot;<em>we expect and encourage answers dealing with other jurisdictions ... please tag your answer using the tag markdown: [tag: some-tag]</em>&quot;</sub></p>


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Question Title: Theoretical vs. Actual Speed Limit

Question Body: <p>One of the peculiarities of Texas is that it's normal for people to drive 5-10 MPH over the speed limit while on the interstate. Provided they're not doing a speed trap, the police generally don't care.</p>
<p>Another of Texas's peculiarities is that most drivers don't respect reduced speed limits for construction zones unless there's a speed trap or it's dangerous to go normal speeds.</p>
<p>As a result, if you drive the speed limit, you can conceivably end up driving 15 mph slower than everybody else in construction zones. This is unsafe for you and everybody else on the surrounding road.</p>
<p>Say that you're going the speed limit, and someone hits you because you're going 15 mph slower than the prevailing traffic conditions. Are you liable? You're following the speed limit, but by doing so you made yourself a danger to those around you.</p>


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Answer 1: <p>The situation in Texas is complicated.  Driving faster than the posted maximum speed limit is not in and of itself a crime; rather, per <a href="https://statutes.capitol.texas.gov/Docs/TN/htm/TN.545.htm#545.352" rel="noreferrer">Texas Transportation Code 545.352(a)</a>, it is <em>prima facie</em> evidence that the speed is a violation of <a href="https://statutes.capitol.texas.gov/Docs/TN/htm/TN.545.htm#545.351" rel="noreferrer">545.351(a)</a>: &quot;An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing&quot;.  It is theoretically possible to defeat a speeding ticket by demonstrating that the speed was, in fact, reasonable and prudent.</p>


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<p>Texas also has a law regarding minimum speed, <a href="https://statutes.capitol.texas.gov/Docs/TN/htm/TN.545.htm#545.363" rel="noreferrer">545.363(a)</a>: &quot;An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law&quot;.  Since the speed limit is not a hard limit, the &quot;compliance with law&quot; clause does not protect you.</p>


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<p>If you get rear-ended while driving slower than the flow of traffic, your best defense is probably <a href="https://statutes.capitol.texas.gov/Docs/TN/htm/TN.545.htm#545.351" rel="noreferrer">545.351(b)(2)</a>: &quot;An operator...shall control the speed of the vehicle as necessary to avoid colliding with another person or vehicle that is on or entering the highway in compliance with law and the duty of each person to use due care&quot;.  The question in court becomes your claim that driving slowly constituted &quot;due care&quot; versus the other driver's claim that their speed was &quot;reasonable and prudent&quot;.  It's likely that you'll win, but it's not the slam-dunk case that it would be in a state where posted speed limits were hard restrictions.</p>


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Answer 2: <p>If you are following the speed limit and somebody rear-ends you it is because they were speeding and following too closely.  They are making themselves a danger to those around them, and they are liable for the damage.</p>


Tags: united-states, traffic, texas


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Question Body: <p>I visited Cologne last year. I was taking a selfie with my phone's inner camera in front of a monument. I was unaware that my phone's outer camera was facing police officers conducting checks. One of them noticed it and approached me. He saw the picture of me with the monument instead of them, apologized for his misunderstanding then went back to work.</p>
<p>Is it an offense to photograph the police in Germany? I searched multiple websites but people gave very different answers and opinions, even on the same forum. I've never been charged for such offense anywhere in the EU but Germany is well known for its strict privacy laws and I do not wish to break any laws.</p>
<p>If it is indeed illegal and I get fined for it, will my past record add extra burden every time I visit Germany such as extra checks or questioning? Or is it something I can brush off since I live in Schengen anyway?</p>


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Answer 1: <h2>No, but...</h2>
<p>It is not an offense to photograph people, especially if they are just caught at the edge or out of the center of the photography. <strong>However</strong> you do not have a right to photograph people either. In fact, under German law, you have to gain the consent of people that are the centerpiece of a photo for publication, or make the photo for a number of enumerated reasons. Among such is news reporting or documenting an ongoing crime - such material is made in the public interest. If you make a photo without consent or qualified reason, possession of the photo in general is no problem <strong>but</strong> you have no right to publish the photo.</p>


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<p>To prevent such publication, the photographed person may demand deletion or destruction of the photo - however, following the demand is not explicitly required. Such a demand however is equivalent to an explicit demand to not publish the picture. As such, it gets really tricky for the photographer. <strong>Publication without a release</strong> (or a no-release statement) or one of the few excusing reasons <strong>is a punishable offense</strong>, which can land you in prison for up to one year. This stems from <a href="https://www.gesetze-im-internet.de/gg/art_2.html" rel="noreferrer">Art. 2 GG</a>, <a href="https://www.gesetze-im-internet.de/kunsturhg/__22.html" rel="noreferrer">§22</a>, <a href="https://www.gesetze-im-internet.de/kunsturhg/__23.html" rel="noreferrer">§23</a> and <a href="https://www.gesetze-im-internet.de/kunsturhg/__33.html" rel="noreferrer">§33 Kunsturhebergesetz</a>.</p>


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<p>Hindering rescue services with your camera and creating photos of injured and vulnerable people is illegal under the same reasoning. Getting into the way of the police can constitute obstruction of emergency helpers atop of that. More on that specific part of German law can be learned <a href="https://law.stackexchange.com/a/93644/10334">in this question</a>. Do note that such photography can also be a crime under <a href="https://www.gesetze-im-internet.de/stgb/__201a.html" rel="noreferrer">§201a StGB</a>, especially if your photography shows <em>someone</em> as vulnerable.</p>
<p>Another possibility for the approaching police might have been, that the policeman was interested to find out if you might have photographed or filmed the incident that led to the arrest. In that case, he might have requested a copy for evidentiary reasons.</p>


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Answer 2: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p><strong>NO</strong></p>
<p>The Metropolitan Police offer the following clarity (which is reproduced in similar terms by the other 42 police forces and various law enforcement agencies):</p>
<blockquote>
<p><a href="https://www.met.police.uk/advice/advice-and-information/ph/photography-advice#:%7E:text=Freedom%20to%20photograph%20and%20film,photographing%20incidents%20or%20police%20personnel." rel="noreferrer"><strong>Freedom to photograph and film</strong></a></p>
<p>Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel.</p>
</blockquote>
<hr />


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</blockquote>
<hr />
<p><sub>By way of some background: there has been some misunderstanding and misuse of the stop and search powers under <a href="https://www.legislation.gov.uk/ukpga/2000/11/section/43?timeline=false" rel="noreferrer">section 43</a> Terrorism Act 2000.  The issue being the officer's reasonable suspicion the person stopped may be a terrorist which, on occasion, was not subjectively reasonable.</sub></p>
<hr />
<p><sub>Although tagged <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a>, I have answered according to the <a href="https://law.stackexchange.com/help/on-topic">LawSE Help Centre</a>: &quot;<em>we expect and encourage answers dealing with other jurisdictions ... please tag your answer using the tag markdown: [tag: some-tag]</em>&quot;</sub></p>


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Answer 3: <p>Yes, usually it is.</p>
<p>The more specific answer is: it depends. There is no specific law that makes it illegal to photograph police per se. However Germany has fairly strict regulations towards privacy and right to your own image and it is usually illegal to photograph a person without their consent if their face is visible in details. This also includes policemen on duty.</p>


Tags: privacy, police, germany, photography, schengen


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Question Title: What, if any, is the tolerance built into speed limits in India?

Question Body: <p>Jurisdiction: India
Legislation: Central Motor Vehicles Act</p>
<p>Sub-jurisdiction: Maharashtra
Legislation: Mumbai Motor Vehicles Act</p>
<p>Speed limits in India are according to the referenced article below. In many nations, there is actually a grace of +5km/hr, or similar value so that any inadvertent gain (e.g. slope of carriageway, downwind) does not result in a fine.</p>
<p>Is there any similar grace/speed tolerance in India?</p>
<p><a href="https://en.wikipedia.org/wiki/Speed_limits_in_India" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Speed_limits_in_India</a></p>


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Answer 1: <p><strong>What, if any, is the tolerance built into speed limits in India?</strong></p>
<p>None in statute (that I can find), but the police may have an informal policy<sup>1</sup>
to allow for other factors like inaccuracies in one's speedometer and misreading the needle due to <a href="https://en.wikipedia.org/wiki/Parallax" rel="nofollow noreferrer">parallax</a>.</p>
<hr />
<p><sup>1</sup>The one I am aware of is &quot;<em>10% +2</em>&quot; where, say, anyone going over 35mph on a 30mph road gets a ticket etc</p>


Tags: india, speeding


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Question Title: In France, can the insurance not apply if my motorcycle has racing parts?

Question Body: <p>I have a motorcycle in France that is insured. For clarification, I do ride on road and not on a circuit.</p>
<p>Doing some maintenance, I changed the air filter to a racing one that says to increase air flow (and therefore performances). In the description of the filter is written &quot;Competition use on closed circuit only.&quot; and the filter has a different color to clearly indicate it's a racing one. For precision, there is a similar air filter said to be for &quot;performance&quot; that does not contain the &quot;Competition use on closed circuit only.&quot; line in the description nor the special color and with smaller indicated air flow.</p>
<p>In case of an accident (responsible or not), can my &quot;all-risks&quot; insurance not apply because of this ?</p>


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Answer 1: <h2>Racing parts generally lack EWG certification and thus roadworthiness certificates</h2>
<p><a href="https://www.tuningblog.eu/fr/cat%C3%A9gories/wiki-de-r%C3%A9glage/Permis-d%27exploitation-ewg-235351/" rel="nofollow noreferrer">A part needs to have an EWG registration number matching to the type of vehicle to be allowed to be used on a street-legal motorcycle.</a> If a part has non street-legal parts, its whole registration usually is void. Driving a vehicle without a valid registration is illegal and generally not insured.</p>
<p>Please check the <a href="https://www.ecologie.gouv.fr/homologation-des-vehicules" rel="nofollow noreferrer">regulator</a> or the <a href="https://www.argusdelassurance.com/dossier-ja/securite-des-pieces-de-rechange-et-homologation.39663" rel="nofollow noreferrer">general information of insurance companies</a> about what replacement parts have to comply with. Your insurance agency usually can help you too.</p>


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Answer 2: <p>The best thing to do is read your policy and ask your insurer.</p>
<p>Some insurance policies do not include modifications from the factory state.</p>
<p>If you have such a policy and do not declare the modification to your insurer, your insurer might be able to void the policy if you make a claim.</p>


Tags: liability, insurance, france, motorcycle


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Question Title: Is there a bright line for witness, prosecutor &amp; judge intimidation?

Question Body: <p><a href="https://abcnews.go.com/Politics/special-counsel-alerts-court-trumps-social-media-post/story?id=102037053" rel="nofollow noreferrer">ABC News reports:</a></p>
<blockquote>
<p>Trump on Friday afternoon had posted a message to his social media
platform, Truth Social, saying, &quot;IF YOU GO AFTER ME, I'M COMING AFTER
YOU!&quot;</p>
</blockquote>
<p>I am curious as to how the legal community will process the tweet.  I'd like to understand if there is a &quot;bright line&quot; so as to determine if it has been crossed.</p>


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Answer 1: <p>The only bright line regards the First Amendment. <a href="https://www.law.cornell.edu/uscode/text/18/1512" rel="nofollow noreferrer">18 USC 1512</a> articulates a line that is not to be crossed, but it is not clear where the line is as regards speech (subsection (a)(1) sets forth a bright line, viz &quot;kills or attempts to kill&quot;, irrelevant to the present question). Otherwise, the remaining categories fall into three subtypes:</p>
<blockquote>
<p>(b) Whoever knowingly uses intimidation, threatens, or corruptly
persuades another person, or attempts to do so, or engages in
misleading conduct toward another person, with intent to..</p>
<p>(c) Whoever corruptly—</p>
<p>(d) Whoever intentionally harasses another person and thereby hinders,
delays, prevents, or dissuades any person from—</p>
</blockquote>


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<p>(c) Whoever corruptly—</p>
<p>(d) Whoever intentionally harasses another person and thereby hinders,
delays, prevents, or dissuades any person from—</p>
</blockquote>
<p>These laws address communications addressed to witnesses, w.r.t. testimony. Case law e.g. <a href="https://law.justia.com/cases/federal/district-courts/FSupp/631/1398/1959568/" rel="nofollow noreferrer">US v. DiSalvo</a>, <a href="https://casetext.com/case/united-states-v-murray-30" rel="nofollow noreferrer">US v. Murray</a> all indicates that the forbidden threat must be addressed to an individual who might be a witness, whereas the above statement is not addressed, it is merely uttered (there is no clearly-intended recipient of the utterance).</p>


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<p>Similarly, <a href="https://www.law.cornell.edu/uscode/text/18/1503" rel="nofollow noreferrer">18 USC 1503</a> forbids &quot;corruptly, or by threats or force, or by any threatening letter or communication, endeavor[ing] to influence, intimidate, or impede&quot; a judicial officer, but this requires there to be a threat made to a specific judicial officer.</p>


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Answer 2: <p>Witness intimidation is prohibited by 18 U.S.C. 1512, which imposes penalties on anyone who:</p>
<blockquote>
<p>(a)(2) uses physical force or the threat of physical force against any person, or attempts to do so, with intent to ... influence, delay, or prevent the testimony of any person in an official proceeding</p>
</blockquote>
<p>or</p>
<blockquote>
<p>(b) knowingly uses intimidation, threatens or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to influence, delay or prevent the testimony of any person in an official proceeding</p>
</blockquote>


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</blockquote>
<p>Courts explicitly disclaim the use of bright-line tests in for violations of Section 1512 in cases like this, which do not involve the actual use of physical force. Instead, the courts look to the context of the speech or conduct in question to determine whether the defendant used a &quot;threat of physical force&quot; or &quot;corruptly persuaded&quot; the witness not to testify.</p>
<p>The guidance that the courts give on those questions is fairly squishy.</p>


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<p>The guidance that the courts give on those questions is fairly squishy.</p>
<p>Under subsection (a)(2), for instance, threats of physical force would have to be &quot;true threats&quot; to satisfy First Amendment analysis, meaning that they were “serious expressions conveying that a speaker means to commit an act of unlawful violence.” <a href="https://casetext.com/case/counterman-v-colorado-2" rel="nofollow noreferrer"><em>Counterman v. Colorado</em>, No. 22-138, 9 (U.S. Jun. 27, 2023)</a>. And there is no bright-line test to determine whether a threat is such a serious expression of intent to commit unlawful violence; instead, courts must look at “all of the contextual factors” that could inform that answer. <a href="https://casetext.com/case/virginia-v-black-5#p359" rel="nofollow noreferrer"><em>Virginia v. Black</em>, 538 U.S. 343, 345 (2003)</a>.</p>
<p>Subsection (b) appears to require the same totality-of-the-circumstances analysis rather than using any bright-line test:</p>


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<p>Subsection (b) appears to require the same totality-of-the-circumstances analysis rather than using any bright-line test:</p>
<blockquote>
<p>There is general agreement that it does not require &quot;acts, threats, emotional appeals, or persistent pleading,&quot; but does require the Government to prove &quot;a defendant's action was done voluntarily and intentionally to bring about false or misleading testimony with the hope or expectation of some benefit to the defendant.&quot; ... However, the persuasion &quot;need not be explicit&quot; to be corrupt. ... Indeed, corrupt persuasion includes situations where a defendant coaches or reminds witnesses by [**18]  planting misleading facts.</p>
</blockquote>
<p><a href="https://casetext.com/case/united-states-v-edlind-1" rel="nofollow noreferrer"><em>United States v. Edlind</em>, 887 F.3d 166, 173-174 (2018)</a>.</p>


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</blockquote>
<p><a href="https://casetext.com/case/united-states-v-edlind-1" rel="nofollow noreferrer"><em>United States v. Edlind</em>, 887 F.3d 166, 173-174 (2018)</a>.</p>
<p>Therefore, the Fourth Circuit upheld the conviction in <em>Edlind</em> even where the defendant explicitly told the victim to tell the truth:</p>
<blockquote>


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<p>Therefore, the Fourth Circuit upheld the conviction in <em>Edlind</em> even where the defendant explicitly told the victim to tell the truth:</p>
<blockquote>
<p>Edlind's statements can be seen as attempts to confuse Kwiatkowski as to what was real and what was Chujoy's odd sense of humor. By confusing Kwiatkowski, Edlind sought to undermine his ability to testify persuasively against Chujoy in the <em>Inca's Secret</em> case. Coupled with the circumstantial evidence implicating Edlind -- the timing of events following Chujoy's June 3 letter and Edlind's constant attempts at avoiding governmental surveillance -- there is sufficient evidence to support the conviction for witness tampering. The jury was free to reject Edlind's statement to &quot;tell the truth&quot; as a shallow attempt to immunize herself from prosecution.</p>
</blockquote>


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Question Title: Is it generally legally allowed for UK police to lie to people in the regular course of discharging their policing duties?

Question Body: <p>Generally speaking can one count on the words coming out of a British police officer in uniforms mouth as truthful? Under what circumstances is it permitted not to be? Is there any special circumstances or authorizations that are required for them to be permitted to lie? If so, what are these?</p>


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Answer 1: <p>It seems to not be allowed for a UK police to lie.</p>
<blockquote>
<p><a href="https://www.legislation.gov.uk/ukpga/1984/60/contents" rel="nofollow noreferrer">The Police and Criminal Evidence Act 1984</a> makes it illegal for the police to mislead a suspect in order to make them believe that the police have evidence which they do not or that the evidence they have is stronger than it is, or that there is a possibility of leniency (for example in return for ‘cooperation’) where none exists.</p>
</blockquote>
<p>Realistically, there is no reason that a police officer might lie to a suspect during interview.</p>
<p>Also see from <a href="https://innocenceproject.org/news/how-the-uk-police-interview-suspects/#:%7E:text=The%20law%20does%20not%20allow,do%E2%80%94I%20get%20more%20information." rel="nofollow noreferrer">innocenceproject.org</a>:</p>
<blockquote>
<p>The law does not allow lying to suspects, under any circumstances.</p>
</blockquote>


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Answer 2: <p>Further to @Daxelarne's accurate <a href="https://law.stackexchange.com/a/94532/35069">answer</a></p>
<p>An undercover officer (UCO), authorised under <a href="https://www.legislation.gov.uk/ukpga/2000/23/section/29?timeline=false" rel="nofollow noreferrer">section 29</a> Regulation of Investigatory Powers Act 2000 (RIPA), by the very nature of the role can lie - but only insofar as to create what's called a &quot;<em>personal or other relationship</em>&quot; (i.e. a covert relationship).</p>
<p>Although a UCO may have additional authority for &quot;<em>criminal conduct</em>&quot; under <a href="https://www.legislation.gov.uk/ukpga/2000/23/section/29B?timeline=false" rel="nofollow noreferrer">section 29B</a> they cannot, for example, lie to entrap a suspect in to committing a crime they would not otherwise do.</p>


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<p>Similarly, but to a lesser extent, covert surveillance officers carrying out &quot;<em>Directed Surveillance</em>&quot; under <a href="https://www.legislation.gov.uk/ukpga/2000/23/section/28?timeline=false" rel="nofollow noreferrer">section 28</a> RIPA may occasionally lie to maintain their cover but not to the extent that creates a covert relationship. For example, Q: &quot;<em>Are you following me?</em>&quot; A: &quot;<em>Don't be daft, I'm looking for my lost dog. Goodbye</em>&quot;</p>


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Answer 3: <p>See  <a href="https://scholarship.law.vanderbilt.edu/vjtl/vol42/iss3/7" rel="nofollow noreferrer">Irina Khasin, <strong>Honesty Is the Best Policy: A Case for the Limitation of Deceptive Police Interrogation
Practices in the United States</strong>, 42 <em>Vanderbilt Law Review</em> 1029 (2021)</a>.</p>
<h4>Pages 1031-3</h4>
<blockquote>
<p>            In Europe, police officers pursue confessions with equal zeal but
employ different means to achieve the desired end.<sup>6</sup> The modern
framework for police interrogations in England, established by the
Police and Criminal Evidence Act of 1984 (PACE), focuses on the
search for truth by seeking reliable confessions through the use of fair
police practices.<sup>7</sup> Rather than leaving the courts to delve into the
emotional state of every defendant who challenges a confession,
English law establishes a uniform standard for the police to follow


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emotional state of every defendant who challenges a confession,
English law establishes a uniform standard for the police to follow
when conducting interrogations.<sup>8</sup> To determine the admissibility of
confession evidence, the English courts consider whether police
officers have complied with PACE guidelines.<sup>9</sup><br />
            While some trickery by the police may be permissible under the provisions of PACE, English courts have held that the intentional
misrepresentation of evidence is unfair and violates the law.'<sup>10</sup>
Because this type of police deception compromises the veracity of a
suspect's statements, English judges routinely exclude any
confessions gained through deception as unreliable.11 Although
research suggests that the use of fabricated evidence is rare in
English interrogations,<sup>12</sup> PACE enforces the prohibition by requiring the police to record every interview.<sup>13</sup> Even a violation of the


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English interrogations,<sup>12</sup> PACE enforces the prohibition by requiring the police to record every interview.<sup>13</sup> Even a violation of the
recording requirement itself can result in the exclusion of a
confession from trial.<sup>14</sup><br />
            Although commentators have criticized deceptive police practices
for decades,<sup>15</sup> American jurisprudence continues to overlook what
English courts have long recognized: deceptive police practices yield
false confessions and, thus, wrongful convictions.<sup>16</sup> Confessions
gained through police deception are often factually inaccurate and
untrustworthy.17 English law limits the use of these deceptive
practices by establishing clear rules for the police to follow and
empowering courts to enforce those rules.'8 PACE artfully balances
police and prosecutorial interests with the fair and reliable
administration of justice. 19 In evaluating the need for reform in


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empowering courts to enforce those rules.'8 PACE artfully balances
police and prosecutorial interests with the fair and reliable
administration of justice. 19 In evaluating the need for reform in
American police interrogation policy, English law provides a valuable
model for comparison.</p>
</blockquote>
<h4>Pages 1051-3</h4>
<blockquote>
<p>           Courts considering the admissibility of confessions evidence
evaluate police conduct for compliance with PACE section 76 and
78.189 The cornerstones of the law governing police interrogation are
reliability and fairness. PACE section 76 provides:</p>
</blockquote>
<blockquote>
<blockquote>
<p>If, in any proceedings where the prosecution proposes to give in
evidence a confession made by an accused person, it is represented to
the court that the confession was or may have been obtained</p>
<p>(a) by oppression of the person who made it; or</p>
<p>(b) in consequence of anything said or done which was likely, in the


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the court that the confession was or may have been obtained</p>
<p>(a) by oppression of the person who made it; or</p>
<p>(b) in consequence of anything said or done which was likely, in the
circumstances existing at the time, to render unreliable any confession
which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against
him except in so far as the prosecution proves to the court beyond
reasonable doubt that the confession (notwithstanding that it may be
true) was not obtained as aforesaid.</p>
</blockquote>
</blockquote>
<blockquote>
<p>Applying PACE section 76, courts consider the words or actions that
induced such confession to determine whether the confession made by
<em>the particular suspect</em> is likely to be unreliable. 190 Questioning that
might be acceptable in the interrogation of an average suspect may
still cast doubt as to the reliability of admissions made by a


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might be acceptable in the interrogation of an average suspect may
still cast doubt as to the reliability of admissions made by a
particularly vulnerable or inexperienced suspect, such as a child. 191
Section 76 permits judges to exercise considerable discretion in
excluding confessions on the basis of reliability. 192 Section 78 further
develops the courts' power to bar confessions by allowing judges to exercise discretion in excluding evidence that would otherwise be
admissible on the basis that it would be unfair to offer the evidence as
proof in a criminal trial.193 In English courts, the function of the
judge is to protect the fairness of the proceedings. 194 Because each
case will turn on its relevant facts, the government has been
reluctant to fetter individual judges' discretion by drawing bright line
restrictions.195<br />
           Courts in England routinely exclude confession evidence
obtained unfairly by some deceit or trick played on the suspect. 196


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restrictions.195<br />
           Courts in England routinely exclude confession evidence
obtained unfairly by some deceit or trick played on the suspect. 196
Even before the enactment of PACE, English common law granted
courts the discretion to exclude confession evidence if the police made
misrepresentations to persuade a suspect to make the incriminating
statements. 197 Since PACE was enacted, defendants usually
challenge evidence obtained as a result of a trick as &quot;unfair&quot; under
PACE section 78.198 If the defendant can show that the police acted
in bad faith by making a deliberately deceitful representation, the
court likely will exclude the confession from evidence. 199 In R v.
Mason, the Court of Appeal excluded a confession for such a bad faith
misrepresentation by a police officer.200 With no direct evidence to
connect the suspect to the crime, the police officer falsely told the
defendant and his solicitor that they had found the suspect's


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connect the suspect to the crime, the police officer falsely told the
defendant and his solicitor that they had found the suspect's
fingerprints at the scene of the crime. 201 After being presented with
this false evidence during his interrogation, the defendant confessed
to the crime. 202 The Court of Appeal held that the deceit perpetrated
on the defendant and his solicitor was reprehensible and impacted
the fairness of the trial. 203 As the confession was the only definitive
evidence linking the defendant to the crime, the conviction was
overturned.204<br />
           Although express deception by the police during the
interrogation of a suspect is generally prohibited in England, the
courts have found that some types of police deception do not warrant
the exclusion of confession evidence.205 For example, the English
&quot;courts have exhibited a considerable degree of tolerance of
surreptitious tape-recording by ... the police.&quot;206 In Bailey, the police


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&quot;courts have exhibited a considerable degree of tolerance of
surreptitious tape-recording by ... the police.&quot;206 In Bailey, the police
had failed to obtain confessions from two suspects through ordinary
questioning; as a result, the police placed the two suspects in a
bugged cell in an effort to record incriminating statements.207 Before
doing so, the officers acted out a deceptive charade to lull the suspects
into a false sense of security.208 The police officers suggested to the
suspects that they should have been placed in separate cells, but an
uncooperative custody officer had placed them in the cell together.209
Assuming that their conversation would be private, the suspects
made incriminating remarks.210 The court found that the use of
deception was &quot;merely a detail,&quot; refusing to exclude the admissions
from evidence at trial.211</p>
</blockquote>
<blockquote>
<ol start="6">


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deception was &quot;merely a detail,&quot; refusing to exclude the admissions
from evidence at trial.211</p>
</blockquote>
<blockquote>
<ol start="6">
<li>Aldert Vrij, <em>&quot;We Will Protect Your Wife and Child, But Only If You Confess&quot; Police Interrogations in England and the Netherlands</em>, in
ADVERSARIAL VERSUS INQUISITORIAL JUSTICE: PSYCHOLOGICAL PERSPECTIVES
ON CRIMINAL JUSTICE SYSTEMS, <em>supra</em> note 5, at 55, 56.</li>
<li>See JOHN SPRACK, EMMINS ON CRIMINAL PROCEDURE 4-5 (9th ed. 2002).</li>
<li>Id.</li>
<li>Id. at 7.</li>
<li>See Vrij, <em>supra</em> note 6, at 56 (stating that it is implied that evidence obtained by deceit and trickery cannot be admitted into
evidence in courts in England).</li>
<li>See generally id. at 55-79 (discussing interrogation procedures in England).</li>
<li>PETER MIRFIELD, SILENCE, CONFESSIONS AND IMPROPERLY OBTAINED EVIDENCE 11 (1997) (explaining that evidence indicates that the use of


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<li>PETER MIRFIELD, SILENCE, CONFESSIONS AND IMPROPERLY OBTAINED EVIDENCE 11 (1997) (explaining that evidence indicates that the use of
manipulative techniques has declined since the enactment of the Police
and Criminal Evidence Act); Slobogin, <em>supra</em> note 5, at 43.</li>
<li>Code of Practice on Audio Recording Interviews with Suspects (Code E),
3.1 (promulgated under the Police and Criminal Evidence Act 1984, c. 60, § 67, pt. VI (Eng.)) [hereinafter Code E].</li>
<li>See Slobogin, supra note 5, at 43.</li>
<li>See, e.g., Magid, supra note 3, at 1169-70 (describing the criticism of commentators and the popular press of the false
confessions that arise from the use of deceptive interrogation
techniques); Margaret Paris, <em>Trust, Lies, and Interrogation</em>, 3 VA.
J. SOC. POL'Y &amp; L. 3, 9 (1996) (advocating the prohibition of any lies
during questioning); Welsh S. White, <em>False Confessions and the
Constitution: Safeguards Against Untrustworthy Confessions</em>, 32 HARV.


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during questioning); Welsh S. White, <em>False Confessions and the
Constitution: Safeguards Against Untrustworthy Confessions</em>, 32 HARV.
C.R.-C.L. L. REV. 105, 111, 148 (1997) (advocating substantial limits
on deception by proposing that police be prohibited from presenting
false forensic evidence).</li>
<li>White, supra note 15, at 111.</li>
<li>Id.</li>
<li>See SPRACK, supra note 7, at 4-7 (describing how PACE develops a framework for the exercise of police powers and how it is enforced).</li>
<li>See id. (noting that PACE sets out the framework for the exercise of police powers, accounts for the public interest and provides
enforcement methods for courts).</li>
</ol>
</blockquote>
<ol start="189">
<li>See id. at 29 (describing the framework set out by Sections 76 and 78).</li>
<li>Id.</li>
<li>Id.; cf. MIRFIELD, supra note 12, at 283 (&quot;[T]he mental handicap of the
accused may properly be considered . . . for the purposes of section 76(2)(b).&quot;). The


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<li>Id.</li>
<li>Id.; cf. MIRFIELD, supra note 12, at 283 (&quot;[T]he mental handicap of the
accused may properly be considered . . . for the purposes of section 76(2)(b).&quot;). The
leading case is <em>R v. Everett</em>. See Case Comment, <em>Reliability of Confession-Mental
Condition of Suspect: R v. Everett</em>, 1988 CRIM. L. REV. 826 (Eng.).</li>
<li>Confession and Breaches of Police and Criminal Evidence Act (PACE) (U.K.),
<a href="http://www.cps.gov.uk/legal/a_to_c/confession_and_breaches_of_police_and_criminal_evidence_act/" rel="nofollow noreferrer">http://www.cps.gov.uk/legal/a_to_c/confession_and_breaches_of_police_and_criminal_evidence_act/</a> (last visited Mar. 24, 2009).</li>
<li>Id.</li>
<li>Id.</li>
<li>Id.</li>
<li>See Richard Stone, <em>Exclusion of Evidence Under Section 78 of the Police and
Criminal Evidence Act: Practice and Principles</em>, 3 WEB J. CURRENT LEGAL ISSUES, § 11. 1


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<li>Id.</li>
<li>See Richard Stone, <em>Exclusion of Evidence Under Section 78 of the Police and
Criminal Evidence Act: Practice and Principles</em>, 3 WEB J. CURRENT LEGAL ISSUES, § 11. 1
(1995), <a href="http://webjcli.ncl.ac.uk/articles3/stone3.html;" rel="nofollow noreferrer">http://webjcli.ncl.ac.uk/articles3/stone3.html;</a> cf. R v. Houghton, (1978) 68 Crim.
App. 197, 206 (Eng.) (&quot;Evidence would operate unfairly against an accused if it had
been obtained in an oppressive manner by force or against the wishes of an accused
person or by a trick or by conduct of which the Crown ought not to take advantage.&quot;)
(citations omitted); MIRFIELD, supra note 12, at 12 (recognizing the &quot;emerging
consensus in official circles&quot; that the kind of tactics &quot;advocated by Inbau, Reid, and
Buckley, as well as being arguably unethical, is also inimical to the gathering of
reliable confession evidence&quot;).</li>
<li>MIRFIELD, supra note 12, at 199.</li>


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Buckley, as well as being arguably unethical, is also inimical to the gathering of
reliable confession evidence&quot;).</li>
<li>MIRFIELD, supra note 12, at 199.</li>
<li>Id. at 205-09.</li>
<li>Id. at 206.</li>
<li><em>R v. Mason</em>, (1988) 1 W.L.R. 139, 144 (Eng.).</li>
<li>Id. at 142.</li>
<li>Id.</li>
<li>Id. at 144.</li>
<li>Id.</li>
<li>MIRFIELD, supra note 12, at 207.</li>
<li>Id. at 208.</li>
<li><em>R v. Bailey</em>, (1993) 3 All E.R. 513, 514 (Eng.).</li>
<li>Id.</li>
<li>Id.</li>
<li>Id.</li>
<li>Id.</li>
</ol>


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Question Body: <p>If the record of a UK civil hearing identifies a party as being &quot;in person&quot;, does that mean that the defendant was physically present or that the court had not been informed that the defendant had professional representation?</p>
<p>There are actually three hearings involved. In (1), a court ruled in favour of the plaintiff &quot;in default&quot;, I believe the defendant did not attend. In (2), the ruling was vacated due to an administrative irregularity without either party's direct involvement. In (3), the plaintiff's application for the vacation to be vacated (I'm sure there's a better way of putting that...) was rejected, but despite this being primarily between the plaintiff and the court the defendant was identified as &quot;in person&quot;.</p>
<p>I've had a fairly detailed explanation of what happened from the plaintiff, but I'm trying to work out what the defendant's position regarding the third hearing was.</p>


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Answer 1: <p>I don't think the record keeping of the lower courts that grant the majority of default judgments is consistent enough to confidently say what &quot;in person&quot; means, especially without a copy of the document to read in its full context. However, it probably means that the defendant physically attended the courtroom and was not represented by a lawyer.</p>
<p>Arguably a defendant who does not attend could still be considered an &quot;in person&quot; (unrepresented) litigant, but I would expect the court to describe this situation with a more explicit term like &quot;no appearance.&quot; Your question also appears to indicate that the defendant was not described as &quot;in person&quot; when default judgment was entered. This typically occurs in the defendant's absence, so the addition of the words &quot;in person&quot; to the record of the later hearing suggests that they did attend the later hearing.</p>


Tags: united-kingdom, legal-terms, civil-procedure


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Question Title: What is a &quot;strata lot&quot;?

Question Body: <p>In relation to real property, what is a &quot;strata lot&quot;?</p>


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Answer 1: <p>A strata lot is a unit of real property resulting from the division of property into lots as per a &quot;strata plan&quot; under the <a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/98043_00_multi" rel="nofollow noreferrer"><em>Strata Property Act</em></a>. This division may be <em>stratified</em> in that it can describe horizontal divisions of the property by reference to floors and/or ceilings of a building. This is a niche terminology only used in a few jurisdictions, like Australia, British Columbia, and Alberta.</p>
<p>The owners of the strata lots make up a &quot;strata corporation&quot; with responsibility for the care and management of the common property, common facilities, and corporation assets.</p>


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<p>The owners of the strata lots make up a &quot;strata corporation&quot; with responsibility for the care and management of the common property, common facilities, and corporation assets.</p>
<p>Many strata structures are like what are known as condominiums elsewhere (and even informally within B.C.), but stratas encompass more than just typical condominiums. A strata plan can be &quot;<a href="https://www2.gov.bc.ca/gov/content/housing-tenancy/strata-housing/understanding-stratas/kinds-of-stratas" rel="nofollow noreferrer">duplexes, townhouses, fractional vacation properties—even single family homes in bare land strata corporations.</a>&quot;</p>


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Answer 2: <p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="tag-new-south-wales-tooltip-container">new-south-wales</a></p>
<p>A <a href="https://www.nsw.gov.au/housing-and-construction/strata" rel="nofollow noreferrer">strata</a> lot is a unit in a strata title - one way of multiple people owning land. In the USA, the closest equivalent would be a condominium.</p>
<p>Australia uses the <a href="https://en.m.wikipedia.org/wiki/Torrens_title" rel="nofollow noreferrer">Torrens Title</a> system for registering land ownership where the title is held and guaranteed by the government- if the government register says you own it, then absent fraud on your part, you own it and anyone damaged by errors or fraud on the title gets compensation from the government, not you.</p>


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<p>Forgive the diversion but I’m about to use the term “Torrens Title” to refer to a pice of land which is owned freehold which is a common usage even though “Torrens Title” also refers to the entire system of land  ownership, including Strata, Company, and Community Titles.</p>
<p>Historically, when multiple people own land as tenants-in-common or joint tenants, they own the entire land collectively. This works fine for small family and similar groups but it doesn’t really work if you want to give different people different rights - like these people can use apartment 1 and those people can use apartment 2.</p>
<p>One workaround is a contract among the owners but it still leaves the property tied together - if one wants to sell then all have to sell (or not).</p>


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<p>One workaround is a contract among the owners but it still leaves the property tied together - if one wants to sell then all have to sell (or not).</p>
<p>Another was to form a company that owned the land with different classes of shares that gave people rights to use different parts of the building - there are still a few company title buildings (so called) around. Then if one wants to sell, they only have to sell their shares. However, this was always a bit of a kludge because company law is  targeted at companies that run businesses rather than a device for real estate ownership. It also meant that anyone that managed to get more than 50% of the shares would control the building - a patient property developer could buy units as and when they became available and then launch a takeover to force people out of their homes.</p>


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<p>So, in the post-war era, Australian governments enacted Strata Title laws custom designed to manage apartment building ownership. The term strata comes from the fact that ownership is divided by floor (and by units within floors) forming a strata. When a strata title is registered, the surveyor assigns each unit a proportion of the whole in line with the amenity of the particular lot which determines their contributions to the strata title company that is formed and “owned” by the unit holders and that, in turn owns the land and the building. Each lot is registered along with the overall plan providing a permanent and government-backed record of who owns what. Units can change hands and that automatically gives the holder a say in the running of the strata.</p>


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<p>Typically, the strata company owns the building and the unit holder owns everything inside the walls, up to and including the paint. The strata is run by the unit holders through a management committee who usually engage a professional strata manager. Operational and capital budgets are determined annually (with some statutory minimums) and each unit holder must contribute their proportion in quarterly instalments. In theory, the capital sinking fund should have enough money in it to replace the building at the end of its life.</p>
<p>It’s possible for units within a strata to themselves be a strata. I own a unit in a residential strata that is itself part of a strata that has a commercial part and a council-owned carpark.</p>


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<p>It’s possible for units within a strata to themselves be a strata. I own a unit in a residential strata that is itself part of a strata that has a commercial part and a council-owned carpark.</p>
<p>Strata title has been very successful, however, at the end of last century, they were being used to try and cope with private subdivisions where the streets, utilities etc. were not owned by local government/public utilities but supplied by the developer. Because strata is customised for apartment buildings it sort-of didn’t work very well. So, the Community Title was developed which allows for the residents to own and operate the infrastructure and have titles within the community which can themselves be Torrens title, strata title, or community title like <a href="https://en.wikipedia.org/wiki/Matryoshka_doll" rel="nofollow noreferrer">Matryoshka Dolls</a>.</p>


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Question Title: When does a cogeneration plant feed power to the net, according to the german KWK-G 2015?

Question Body: <p>§7 (1) of the current german <a href="https://www.gesetze-im-internet.de/kwkg_2016/" rel="nofollow noreferrer">KWK-G</a> (Law concerning co-generation plants) makes a huge difference for power fed into the grid, or not. Say an installation consumes 150-200 kW contiually, and operates a 100kW el CHP - so there's never any net backfeed into the net. This describes a typical sewage gas CHP at a wastewater plant. Is this cogeneration plant feeding into the net according to §7 (1)?</p>
<p>The relevant wording is <em>&quot;Der Zuschlag für KWK-Strom, der in ein Netz der allgemeinen Versorgung eingespeist wird, beträgt: ...&quot;</em></p>


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Answer 1: <blockquote>
<p>(1) Der Zuschlag für KWK-Strom, der in ein Netz der allgemeinen Versorgung eingespeist wird und auf den die §§ 61e bis 61g und 104 Absatz 4 des Erneuerbare-Energien-Gesetzes in der am 31. Dezember 2022 geltenden Fassung nicht anzuwenden sind, beträgt...</p>
</blockquote>
<p>The german is  - unlike Ohwilleke complains with the english translation - quite clear:</p>
<p>Electric energy to qualify under this paragraph needs to:</p>
<ul>
<li>[be produced] by implication</li>
<li>get put into a network for public consumption [in ein Netz der allgemeinen Versorgung eingespeist]</li>
<li>needs to not be regulated under §§ 61e to 61g or 104 (4) EEG (law partaining renewable energy)
<ul>
<li>§61 was repealed and removed in the 2023 version, a §104 does no longer exist either.</li>


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<li>needs to not be regulated under §§ 61e to 61g or 104 (4) EEG (law partaining renewable energy)
<ul>
<li>§61 was repealed and removed in the 2023 version, a §104 does no longer exist either.</li>
<li>Old versions of <a href="http://www.buzer.de/59_EEG_2023.htm" rel="nofollow noreferrer">§61 EEG</a> and <a href="http://www.buzer.de/104_EEG_2023.htm" rel="nofollow noreferrer">§104 EEG</a> are archived. The various §61a to g regulated which type of producer got which percentage and §104 regulated who gets money for produced energy.</li>
</ul>
</li>
</ul>
<p>Among those regulations, which make the meaning of §7(1) KWKG <strong>very</strong> clear is <a href="https://www.buzer.de/gesetz/11230/al171946-0.htm?line=170891" rel="nofollow noreferrer">§61e EEG (2022)</a></p>
<blockquote>
<p>(1) Der Anspruch nach § 61 Absatz 1 verringert sich auf null Prozent der EEG-Umlage für Strom aus Bestandsanlagen,</p>
<ol>


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<blockquote>
<p>(1) Der Anspruch nach § 61 Absatz 1 verringert sich auf null Prozent der EEG-Umlage für Strom aus Bestandsanlagen,</p>
<ol>
<li>wenn der Letztverbraucher die Stromerzeugungsanlage als Eigenerzeuger betreibt,</li>
</ol>
</blockquote>
<blockquote>
<p>(1) The entitlement pursuant to Section 61 subsection 1 is reduced to zero percent of the EEG surcharge for electricity from existing systems,</p>
<ol>
<li>if the end consumer operates the power generation system as a self-producer,</li>
</ol>
</blockquote>
<p>Under the old law, you need to actually produce <strong>more</strong> than your own requirement to be entitled to a payout, as producing less was meaning you are only an Eigenerzeuger.</p>
<p>Even under the new requirement, Einspeisung is a standing term in Germany: It is <strong>only</strong> Einspeisung if the electrical energy is actually put into the public energy network (&quot;Zufuhr von Strom in das öffentliche Versorgungsnetz&quot;).</p>


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Answer 2: <p>I doubt that it is possible to answer this question accurately based upon the text alone (having read the statute in translation), and I doubt that there are even many lawyers or accountants in Germany who would know the answer if they don't work in this industry. The statutory language is ambiguous in these circumstances, and each of the possible readings could be reasonable in the fact pattern that you identify.</p>

<p>In practice, it would come down to what interpretation makes sense in light of the larger context of how the relevant utility operates its electrical grid.</p>

<p>If the grid were operated by the utility with meters that only disclose net power generation, then it is quite likely that this would not be treated as contributing to the grid. </p>


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<p>If the grid were operated by the utility with meters that only disclose net power generation, then it is quite likely that this would not be treated as contributing to the grid. </p>

<p>But, if the grid were operated by the utility with meters that measured draws from the grid and contributions to the grid separately, it might be appropriate to treat the times when it did make contributions to the grid as contributions for purposes of Section 7.</p>

<p>A utility administrator or engineer would probably be more likely to know the answer even though, technically, it is a legal question.</p>

<p>I strongly suspect that German courts would be likely to defer to the utility company's interpretation of Section 7 so long as it had a clear, consistent and rational interpretation of what that term means. </p>


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<p>On the other hand, if the utility treated one co-generation plant one way, and another one down the road differently, in the face of substantially similar facts, the court would probably decide which interpretation made the most sense under the circumstances itself, and would impose that interpretation on the utility.</p>


Tags: germany, legal-terms


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Question Title: Is the District of Columbia a &quot;territory&quot;?

Question Body: <p>Within the boundaries of the United States there were at various times &quot;organized incorporated territories&quot;, that were not a part of any of the states and whose governments were organized by acts of Congress rather than by a state constitution drafted by statesmen within the state and enacted by the voters of the state, and that, unlike the states, had no voting representatives or senators in Congress. (Somewhat like the three territories of northern Canada today, I think?) Is the District of Columbia simply an instance of that phenomenon, or is there some essential difference?</p>


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Answer 1: <p><a href="https://constitution.congress.gov/browse/article-1/section-8/clause-17/" rel="noreferrer">Art. I  Sec. 8 Cl. 17</a> states that &quot;The Congress shall have Power&quot;</p>
<blockquote>
<p>To exercise exclusive Legislation in all Cases whatsoever, over such
District (not exceeding ten Miles square) as may, by Cession of
particular States, and the Acceptance of Congress, become the Seat of
Government of the United States, and to exercise like Authority over
all Places purchased by the Consent of the Legislature of the State in
which the Same shall be, for the Erection of Forts, Magazines,
Arsenals, dock-Yards, and other needful Buildings</p>
</blockquote>
<p>which then happened in <a href="https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/1/STATUTE-1-Pg130.pdf" rel="noreferrer">1 Stat. 130</a> (1790). It is there referred to as &quot;a district of territory&quot; but more often simply as a &quot;district&quot;.</p>


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<p>Unlike territories, its existence for its actual purpose as seat of government is specifically enabled by the Constitution. Then via <a href="https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/2/STATUTE-2-Pg103b.pdf" rel="noreferrer">2 Stat 103</a> (1801), DC was politically brought within the control of Congress, so that residents were no longer residents of Maryland or Virginia. In this act it is consistently termed a &quot;district&quot;.</p>


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Question Body: <p>The townhome is in Port Coquitlam, BC, Canada and the strata by-law states</p>
<blockquote>
<p>Secondary suites within Strata Lots are prohibited. Should any Owner of
a Strata Lot be found to have constructed a secondary suite within his or
her or any other Strata Lot located in the Strata Plan, the Strata Council
shall be entitled to take any one or more of the following actions:
(a) take all necessary steps to remove the secondary suite;
(b) notwithstanding section 25 (1) of these Bylaws, levy a fine not to
exceed $50.00 per day for each day the Owner is in contravention,
such fine to be added to and form part of the month’s assessment
or levy to be collected by the Strata Council from the Owner of the
Strata Lot and the Strata Council are hereby authorized to take all
necessary steps to collect such amounts from any Owner;
(c) evict the tenant in accordance with section 138 of the Strata
Property Act;


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necessary steps to collect such amounts from any Owner;
(c) evict the tenant in accordance with section 138 of the Strata
Property Act;
(d) seek a declaration from any Court of competent jurisdiction with
regard to the enforcement with limitation and/or an injunction to
prevent the continuation of the secondary suite within a Strata Lot;
and upon receiving such declaration or injunction, costs shall be
the responsibility of the Strata Lot Owner contravening the
provisions of the Bylaw and shall be recoverable on a solicitor and
own client basis by the Strata Corporation; and
(e) should any portion of Bylaw 2 (2) be deemed unenforceable by any
competent jurisdiction, then for purposes of interpretation and
enforcement of the Bylaw, each sub-paragraph hereof shall be
deemed a separate provision and severable, and the balance of
the provisions contained herein shall remain in full force and effect.</p>
</blockquote>


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deemed a separate provision and severable, and the balance of
the provisions contained herein shall remain in full force and effect.</p>
</blockquote>
<p>The unit already has a living room, bedroom, bathroom and Laundry which are legal and approved by the strata.</p>
<p>If we were to rent it out, we are considering adding a kitchenette ie a Refrigerator, Small Induction top stove/Rice cooker/Electric Hot pot/Coffee maker and microwave i.e. Regular kitchen appliances other than a full size gas.</p>
<p>Will this be flouting the by-law? Would adding the above setup for a small kitchenette make it a secondary suite? Could that be problematic in any way?</p>
<p>**Strata does not define any rental restrictions in BC by the law.
They have just the secondary suite restriction.</p>


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Answer 1: <p>You will need look up the definition of a &quot;secondary suite&quot; and include that in your question for a better answer.</p>
<p>Where I live this is called an ADU, for Auxiliary Dwelling Unit.  The definition of an ADU specifies permanent facilities for sleeping, sanitation, and food preparation.  Since you can add bedrooms and bathrooms to any house without creating an ADU, it really hinges on &quot;permanant facilities for food preparation&quot;.  In other words, a kitchen.</p>
<p>Since you could have a coffee pot or microwave in your master bedroom and it wouldn't be a kitchen, it is generally considered that small countertop appliances don't count.</p>
<p>Since many people have an extra full sized refrigerator or freezer in their garage without it being a kitchen, it is reasonable that doesn't count either.</p>
<p>Same thing with a sink in the utility room...</p>


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<p>Same thing with a sink in the utility room...</p>
<p>So where does the line lay with a &quot;kitchenette&quot;?  That will depend on the exact wording of the bylaws for your locality, as well as how whoever enforces these things interprets it.  Could it be a problem?  Perhaps... if you advertise it for rent with a kitchen and the local authority takes notice.</p>
<p>FMI, what is a &quot;Strata lot&quot;?</p>


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Question Title: California being more powerful than the federal government

Question Body: <p>The federal government has the power of administrative wage garnishment. This allows it to complete a levy by filling  a form rather than filing a collection lawsuit and using courts. It is still an administrative procedure, there is still a form to issue.</p>
<p>The California Franchise Tax Board bypasses this entirely. It is mechanistically able to levy my chase bank account for $3000 just by calling chase and never even mailing a physical judgement.</p>
<p>Under procedural behavior, California has more power to levy bank accounts than the federal government does, it doesn't even need an administrative process to do it. This is probably unconstitutional as California can &quot;get levies out&quot; faster than the federal government and &quot;win&quot; the race to get funds first.</p>
<p>Does this violate the Supremacy Clause?</p>


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Answer 1: <p>Your premise that California's tax collection powers are greater than federal tax collection powers is basically wrong.</p>
<p>Both California and the federal government carry out most of their due process functions within their respective tax collection agencies in an administrative process rather than in the courts. In the federal system, the courts are usually resorted to only when that taxpayer pays the taxes due and then seeks a refund, or when their is an appeal from the final layer of the IRS administrative law system which is the Article I court known as Tax Court (in which I have litigated more than once).</p>


