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just and proper.</p>
<p>e. In any action in which the court shall determine that an
equitable distribution is  appropriate  but would be impractical or
burdensome or where the distribution of an interest in a  business,
corporation or profession would be contrary to law, the court in lieu
of such equitable distribution  shall make a distributive award in
order to achieve equity between the parties. The court in  its
discretion, also  may make  a distributive award to supplement,
facilitate or effectuate  a distribution of marital property.</p>
<p>f. <strong>In addition to the disposition of property as set forth above,
the court may make such order regarding the use and occupancy of the
marital home  and  its  household  effects  as  provided  in section
two hundred thirty-four of this chapter, without regard to the form of
ownership  of such property.</strong></p>
<p>g.  In any decision made pursuant to this subdivision, the court


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two hundred thirty-four of this chapter, without regard to the form of
ownership  of such property.</strong></p>
<p>g.  In any decision made pursuant to this subdivision, the court
shall set forth the factors it considered and the reasons for its
decision and such may not be waived by either party or counsel.</p>
<p>h. In any decision made pursuant to this subdivision the court
shall, where  appropriate,  consider  the effect of a barrier to
remarriage, as defined in subdivision six of section two hundred
fifty-three  of  this article, on the factors enumerated in paragraph
d of this subdivision.</p>
</blockquote>
<p>Thus, in New York State, unlike Colorado (discussed below), appreciation in the value of separate property during the marriage is separate property and not marital property.</p>


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</blockquote>
<p>Thus, in New York State, unlike Colorado (discussed below), appreciation in the value of separate property during the marriage is separate property and not marital property.</p>
<p><a href="https://law.justia.com/codes/new-york/2021/dom/article-13/234/" rel="nofollow noreferrer">Section 234 of the New York Domestic Relations Law</a> referenced in the bolded language above states:</p>
<blockquote>
<p>§ 234. Title to or occupancy and possession of property.</p>
<p>In any action for  divorce,  for  a  separation,  for  an  annulment
or to declare the nullity of a void marriage, the court may (1)
determine any question as to the title to property arising between the
parties, and (2) <strong>make such direction, between the parties,
concerning the possession  of  property, as  in  the  court's
discretion  justice requires having regard to the circumstances of the
case and of the respective parties.</strong> Such direction may be made in


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discretion  justice requires having regard to the circumstances of the
case and of the respective parties.</strong> Such direction may be made in
the final judgment, or by one or more orders from time to time  before
or  subsequent to final judgment, or by both such order or orders and
final judgment. Where the title to real property is affected, a copy
of such judgment, order or decree, duly certified by the clerk of the
court wherein said judgement was rendered, shall be recorded in the
office  of the recording officer of the county in which such property
is situated, as provided by section two hundred ninety-seven-b of the
real property law.</p>
</blockquote>
<p>Usually, the authority granted by Section 234 is used to enter temporary orders granting a spouse possession and use of a residence titled in the name of the other spouse until the case is concluded, although it could be applied to a post-decree decision as well.</p>


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<p>Also, while New York State now finally has &quot;no fault&quot; divorces (it was the last state in the U.S. to make this option available), it also allows spouses to commence a fault based divorce. In a fault based divorce, marital fault (e.g. having an affair) can be considered as a factor by the court in equitably dividing the couple's property in the divorce if fault is successfully established.</p>
<p><strong>Fun Fact:</strong> In New York State, <em>family court judges don't have jurisdiction over divorces</em>, which are instead handled by the general jurisdiction trial court in the state known as the &quot;Supreme Court&quot;. New York State's apex court is called the &quot;Court of Appeals&quot;.</p>
<p><strong>Complicating Factors</strong></p>


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<p><strong>Complicating Factors</strong></p>
<p>The reality, however, is more complicated than these extremes in most cases. Many states adopt parts of each regime, develop their own special rules, or implement the same basic system of marital property ownership and property division upon divorce in different ways.</p>
<p><em>Appreciation And Payment Of Carrying Costs During The Marriage</em></p>
<p>For example, Colorado is not technically a community property state, and community property rights of a spouse in marital property are not recognized during the marriage. But in Colorado, upon divorce, there is a distinction between separate property and marital property that is very similar to that found in community property states. And, in Colorado, while property owned before a marriage is not marital property, appreciation in the value of separate property during the marriage, and income from separate property, is marital property.</p>


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<p>Another issue is what payment of mortgages and other costs of maintain real estate that is separate property from funds earned from wages or investments of either spouse during the marriage, will often muddy the waters. <a href="https://law.stackexchange.com/questions/59867/home-community-and-separate-property/59891#59891">California's rule in this situation</a> is non-obvious from general community property principles ands is quite tricky and technical.</p>
<p>California allocates some appreciation of separate property which has had mortgage principal paid for in part from income earned during the marriage or marital property to community property and some of the appreciation to separate property, on a pro-rated basis determined at the time that the property is valued for divorce purposes.</p>


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<p>For example, in California, if the home was worth $100,000 net of a $100,000 mortgage at the time of the marriage, and then is then sold free and clear net of costs of sale for $400,000, then $100,000 of the proceeds are separate property, $100,000 of the proceeds are community property, and $200,000 of the proceeds are appreciation is is pro-rated between the two, in this case, evenly. so $200,000 of the proceeds is separate property and $200,000 of the proceeds is marital property. But, taxes, insurance payments, and interest payments as opposed to principal payments, do not add to the community property value of the house, as they are current expenses that don't change the value of the property under California law, even though money is fungible.</p>


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<p>In general, some states that distinguish between separate and marital property, or separate and community property, at the time of a divorce, treat appreciation in separate property and payment of carrying costs for separate property as giving rise to some marital or community property interest in that property that is traceable to appreciation during the marriage or income acquired during the marriage, while other states continue to treat property acquired before the marriage entirely as separate property even if it appreciates, and/or even if carrying costs for the property are paid for from income acquired during the marriage.</p>


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<p>In states where appreciation in the property and/or payment of carrying costs with income earned during a marriage, gives separate property a partial marital property status, these two factors often convert a house that was originally separate property almost entirely into marital property after a long marriage, while modifying its separate property status only slightly after a short marriage.</p>
<p>In the same vein, different states that distinguish between separate property on one hand, and marital or community property on the other, treat income from separate property earned during a marriage such as rent, interest, and dividends, differently than other states do and sometimes differently than appreciation in the asset itself.</p>
<p><em>Quasi-Community Property</em></p>
<p>A third complicating issue is the question of &quot;quasi-community property.&quot;</p>


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<p><em>Quasi-Community Property</em></p>
<p>A third complicating issue is the question of &quot;quasi-community property.&quot;</p>
<p>If property is acquired as separate property or community property in a community property state, many states which are not community property states will treaty property acquired or owned by one or more members of the couple while they lived in that community property state as if it were governed by the community property laws of the place where the property is located, or the laws of the place where it was located before it was sold and reinvested in property in the state where the divorce case is being litigated.</p>


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<p>Other jurisdictions recognize property acquired while a couple lived in a community property state and its proceeds to retain its community property v. separate property status with a &quot;quasi-community property&quot; doctrine. But, these jurisdictions, rather than applying the community property laws of the state where particular property was acquired, applies a generic set of community property laws to property acquired in any community property state during the marriage.</p>
<p><em>Sanctions For Economic Waste</em></p>


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<p><em>Sanctions For Economic Waste</em></p>
<p>Also, in both traditional equitable division regimes that make a separate v. marital property distinction, and in community property regimes, sometimes if the owner of the house that would otherwise be classified as separate property commits &quot;economic waste&quot; that destroys the value of marital property out of spite, or without good cause. When that happens, a court may order that the harm to the marital or community property caused by the economic waste of a spouse be remedied with a contributions from the guilty spouse's separate property.</p>
<p><em>Marital Agreements</em></p>
<p>Finally, almost every state allows married couples to modify the property division rules of the state as applied to that couple, in a prenuptial agreement or a postnuptial agreement (collectively, &quot;marital agreements&quot;) if it is prepared with the proper disclosures and formalities, and informed consent is given to the agreement.</p>


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<p>For example, one of the common terms of a marital agreement (especially for late in life remarriages of widows and widowers, but also in many other cases) states that upon a divorce, legal title to property will be followed strictly when making a property division, with the value of any jointly owned property split exactly equally.</p>
<p>In other words, a marital agreement will often provide that property will be divided upon a divorce in the same way that it would be divided if the couple had never married. This is sometimes called a &quot;your's is your's, and mine is mine&quot; prenup.</p>
<p>Marital agreements like this also often waive any right to alimony to the full extent permitted by law (which economically is almost equivalent to treating the members of the couple as if they had never married) and often waive any inheritance rights of a surviving spouse upon their spouse's death.</p>


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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>
<p>When spouses separate, each has a right to property division that is governed by provincial legislation. I give three examples, only one of which (British Columbia) excludes a house brought into the marriage from property division. The other two (Saskatchewan and Ontario) give the <em>family home</em>/<em>matrimonial home</em> special treatment for property division and <em>do</em> include it for division, even if it was owned by a spouse prior to the marriage.</p>
<p><a href="/questions/tagged/british-columbia" class="post-tag" title="show questions tagged &#39;british-columbia&#39;" aria-label="show questions tagged &#39;british-columbia&#39;" rel="tag" aria-labelledby="tag-british-columbia-tooltip-container">british-columbia</a></p>


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<p>A previously owned home is excluded from property division.</p>
<p>If a spouse acquired the house before the relationship between the spouses began, it is excluded from &quot;family property&quot; for the purpose of property division: <a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_05#section85" rel="nofollow noreferrer"><em>Family Law Act</em>, s. 85</a>.<sup>1</sup></p>
<p><a href="/questions/tagged/saskatchewan" class="post-tag" title="show questions tagged &#39;saskatchewan&#39;" aria-label="show questions tagged &#39;saskatchewan&#39;" rel="tag" aria-labelledby="tag-saskatchewan-tooltip-container">saskatchewan</a></p>


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<p>The &quot;family home&quot; is <em>not</em> exempt from property division, even if it was owned by a spouse prior to the commencement of the spousal relationship. There is a presumption that its value will be divided equally, unless a court finds that to be unfair considering extraordinary circumstances or unfair to the spouse with custody of the children. <a href="https://www.canlii.org/en/sk/laws/stat/ss-1997-c-f-6.3/latest/ss-1997-c-f-6.3.html" rel="nofollow noreferrer"><em>Family Property Act</em>, ss. 22-23</a>.</p>
<p><a href="/questions/tagged/ontario" class="post-tag" title="show questions tagged &#39;ontario&#39;" aria-label="show questions tagged &#39;ontario&#39;" rel="tag" aria-labelledby="tag-ontario-tooltip-container">ontario</a></p>


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<p>The value of the &quot;matrimonial home&quot; is never deducted from the value of family property even if it was owned by a spouse on the date of marriage. <a href="https://www.ontario.ca/laws/statute/90f03#BK6" rel="nofollow noreferrer"><em>Family Law Act</em>, s. 4(1)</a>.</p>
<p><a href="/questions/tagged/quebec" class="post-tag" title="show questions tagged &#39;quebec&#39;" aria-label="show questions tagged &#39;quebec&#39;" rel="tag" aria-labelledby="tag-quebec-tooltip-container">quebec</a></p>


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<p>Québec has two regimes. Before July 1, 1970, the default regime was <a href="https://www.quebec.ca/en/famille-et-soutien-aux-personnes/couple-famille/mariage-union-civile-ou-union-de-fait/effects/matrimonial-regimes/community-of-property" rel="nofollow noreferrer"><em>community of property</em></a>. Since July 1, 1970, the default regime is <a href="https://www.quebec.ca/en/famille-et-soutien-aux-personnes/couple-famille/mariage-union-civile-ou-union-de-fait/effects/matrimonial-regimes/partnership-of-acquests" rel="nofollow noreferrer"><em>partnership of acquests</em></a>. Spouses could and can choose a non-default regime or otherwise alter the scheme to their specific desires by contract.</p>


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<p>But before property division under either regime, the value of <em>family patrimony</em> is to be divided equally between spouses (<a href="https://www.legisquebec.gouv.qc.ca/en/document/cs/ccq-1991?langCont=fr#se:416" rel="nofollow noreferrer">art 416 CCQ</a>). <a href="https://www.quebec.ca/en/famille-et-soutien-aux-personnes/couple-famille/mariage-union-civile-ou-union-de-fait/effects/family-patrimony/residences-used-by-family" rel="nofollow noreferrer">The family residence is part of the family patrimony</a> (<a href="https://www.legisquebec.gouv.qc.ca/en/document/cs/ccq-1991?langCont=fr#se:415" rel="nofollow noreferrer">art 415 CCQ</a>). This right cannot be renounced by a marriage contract (<a href="https://www.legisquebec.gouv.qc.ca/en/document/cs/ccq-1991?langCont=fr#se:423" rel="nofollow noreferrer">art 423 CCQ</a>).</p>
<hr />


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<hr />
<p><sup>1. For background about B.C.'s change from a &quot;family purpose&quot; model (where property was included for division if it was used for a family purpose) regime to an &quot;excluded property&quot; model (where all property is included unless on a fairly precise &quot;excluded&quot; list, such as pre- and post-relationship property), see the <a href="https://www.courthouselibrary.ca/sites/default/files/inline-files/family-law-white-paper-2010.pdf" rel="nofollow noreferrer">2010 White Paper on the <em>Family Relations Act</em> Reform</a>. It does not discuss why it was not recommended that the family residence not be always counted as family property.</sup></p>


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Question Title: How do you check the legality of a new business model?

Question Body: <p>How do you check the legality of a new business model to make sure it will be legal, and you won't be running afoul of some law you have no idea of?</p>


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Answer 1: <p>Hire a lawyer, who is licensed and trained in law and who is obligated to be honest with you and advocate for your interests, and get him/her to review your business plan. He/she will point out real or potential problems with your ideas and plans, show you legal gray areas of the law and advise you on what you can and can't do.</p>
<p>Some lawyers offer a free initial consultation. As an example, you can browse and read specialties and qualifications for legal help in New Jersey: <a href="https://www.justia.com/lawyers/business-law/new-jersey" rel="noreferrer">https://www.justia.com/lawyers/business-law/new-jersey</a></p>
<p>There's no substitute for real legal advice; not consulting with an attorney before signing contracts or starting a business can put in in real legal jeopardy. Don't ask legal advice from randos on the Internet, as they are not trained or licensed, and it is illegal to act or work as a lawyer without being licensed.</p>


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Answer 2: <p>When you have a problem with your car, you take it to a person who is trained to fix cars and knows about them. You pay money for their time and expertise.</p>
<p>This is more or less the same situation- you consult a lawyer.</p>


Tags: united-states, business, is-x-legal, new-jersey, legal-research


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Question Title: How (and how come) are US state/federal prosecutors allowed to seal indictments?

Question Body: <p>I have recently heard Tara Reade (who had accused US president Joseph Biden of sexual attack several decades ago) say, that there has been a sealed indictment against her, for the past 3 years (2020-2023), following some kind of grand jury procedure.</p>
<p>Assuming that is possible (regardless of whether it's actually true or not) - what is the legal basis of doing this? That is, what legislation allows for prosecutors or juries to avoid publication indictments of individuals for significant periods of time? And has this power even been challenged constitutionally?</p>
<p>More specifically, has such process been recognized as &quot;due&quot; in context of the Fifth amendment to the US constitution?:</p>
<blockquote>
<p>No person shall ... be deprived of life, liberty, or property, without due process of law.</p>
</blockquote>


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Answer 1: <h3>An indictment is not the deprivation of liberty.</h3>
<p>An indictment is actually part of the due process of law that is guaranteed in the Constitution.  Deprivation of liberty means incarceration.  The processes that are generally part of incarceration are the initial court hearings after arrest and the trials to gain conviction for offenses.</p>


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Answer 2: <p>The purpose of the grand jury system is to ensure that innocent people don't have their names dragged through the mud by the mere fact of being accused of a crime.  The US founding fathers were concerned that the government could announce that, say, they were indicting ein for murder, let that accusation ruin your reputation by being reported in papers, and later withdraw the charges when it turned out there was no evidence.  The accusation would still sully your reputation.</p>
<p>The grand jury system avoids that by forcing the prosecutor to lay out their evidence to the grand jury in secret.  These proceedings are sealed so that your reputation isn't damaged if the grand jury declines to indict.  If the grand jury does choose to indict, that indictment stays sealed until the prosecutor makes it public.</p>


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<p>Prosecutors may keep indictments sealed for many reasons.  But in the case of large, long-running investigations, the most common reason is so that they can unseal indictments against a number of people at once.  If you're investigating an organized crime family, for example, you might develop evidence against Little Fish first, go to the grand jury, and indict him.  With that sealed indictment, you might convince Little Fish to turn state's evidence and implicate Medium Fish.  You go to the grand jury and secure an indictment against Medium Fish and leverage that, eventually, to indict the Big Fish you're after.  At the end, you unseal all the indictments at once and arrest everyone.  If the indictments were made public immediately, it would be a major tip-off to the organized crime family that investigators were closing in on Big Fish.</p>


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Answer 3: <p><a href="https://www.justice.gov/usao/justice-101/charging" rel="nofollow noreferrer">Grand jury proceedings and statements</a> are sealed in their initial state, for example you can't go listen in on the hearing. At some point a legal document may be produced, and filed with the court: <a href="https://www.mdd.uscourts.gov/content/sealed-criminal-document-procedures" rel="nofollow noreferrer">they are sealed,</a> unless they are unsealed. <a href="https://www.justice.gov/atr/case-document/file/986336/download" rel="nofollow noreferrer">Here</a> is a motion to unseal an indictment, and here is a <a href="https://www.justice.gov/opa/page/file/1037496/download" rel="nofollow noreferrer">motion to seal</a> an indictment. You will notice that in both cases the US attorney simply says &quot;we request that the indictment be (un)sealed&quot;. <a href="https://www.law.cornell.edu/rules/frcrmp/rule_6" rel="nofollow noreferrer">FRCP 6</a> requires secrecy, see (e)(3) for the


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says &quot;we request that the indictment be (un)sealed&quot;. <a href="https://www.law.cornell.edu/rules/frcrmp/rule_6" rel="nofollow noreferrer">FRCP 6</a> requires secrecy, see (e)(3) for the &quot;exceptions&quot;. Essentially, secrecy is in the nature of the grand jury process, which does not determine guilt, it only determines if there is enough evidence to formally charge. It is a filtering tool that decides if there is probable cause for an arrest.</p>


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<p>Public records laws all have exceptions built in for various purposes, one of them being that secret court records are not subject to otherwise mandatory release. There are no clauses to the effect that a secret record must be released after a particular period of time (this is distinct from declassification).</p>


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Question Title: Is it bigamy to marry someone to whom you are already married?

Question Body: <p>The goal is to obtain legal proof of marriage with the least amount of effort, such as travelling overseas and hiring translators and notaries. This is not a &quot;renew vows&quot; situation.</p>
<p>Answers for New York preferred, but answers pertaining to other jurisdictions welcome.</p>
<p>Statute:
A person is guilty of bigamy when he contracts or purports to contract a marriage with another person at a time when he has a living spouse, or the other person has a living spouse.</p>
<p>Bigamy is a class E felony.</p>


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Answer 1: <p>No, you would be guilty of perjury. In order to go through the legal formality, you have to obtain a license, Washington example (King County) seen <a href="https://kingcounty.gov/%7E/media/depts/records-licensing/recorders-office/documents/MLAPPpdf.ashx?la=en" rel="noreferrer">here</a>. You must swear that you are single, divorced, or widowed. If you leave the box unchecked, you won't get a license. If you are married and check any box, you have committed perjury.</p>


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Answer 2: <p>New York's Domestic Relations Law explicitly contemplates the licensing and solemnization of second marriages for already-married couples.  However</p>
<ul>
<li>I haven't read it closely enough to determine whether a clerk is required to consider granting a license to such a couple or it within the clerk's discretion to refuse;</li>
<li>the law explicitly authorizes clerks to require proof of the existing marriage, so this provision would not meet your goal if the clerk does demand that proof (it leaves room for the clerk's discretion but I wonder whether that is to cover situations where the parties are well known to the clerk, e.g. in small towns); and</li>
<li>failing to declare the existing marriage probably constitutes perjury as noted in another answer.</li>
</ul>
<p>Section 15(1)(a) in full, with emphasis added:</p>
<blockquote>


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<p>1. (a) It shall be the duty of the town or city clerk when an application for a marriage license is made to him or her to require each of the contracting parties to sign and verify a statement or affidavit before such clerk or one of his or her deputies, containing the following information.  From party one:  Full name, place of residence, social security number, age, occupation, place of birth, name of father, country of birth, maiden name of mother, country of birth, number of marriage.  From party two:  Full name, place of residence, social security number, age, occupation, place of birth, name of father, country of birth, maiden name of mother, country of birth, number of marriage.  Both parties shall also be required to present to the clerk documentary proof of age in the form of an original or certified copy of a birth record, a certification of birth issued by the state department of health, a local registrar of vital statistics or other public officer charged with similar


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an original or certified copy of a birth record, a certification of birth issued by the state department of health, a local registrar of vital statistics or other public officer charged with similar duties by the laws of any other state, territory or country, a baptismal record, a passport, an automobile driver's license, any government or school issued identification card that contains a photograph of the applicant, a life insurance policy, an employment certificate, a school record, an immigration record, a naturalization record, a court record or any other document or record issued by a governmental entity, showing the date of birth of such parties.  The said clerk shall also embody in the statement if either or both of the applicants have been previously married, a statement as to whether the former spouse or spouses of the respective applicants are living or dead and as to whether either or both of said applicants are divorced persons, if so, when and where and against whom the


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the former spouse or spouses of the respective applicants are living or dead and as to whether either or both of said applicants are divorced persons, if so, when and where and against whom the divorce or divorces were granted and shall also embody therein a statement that no legal impediment exists as to the right of each of the applicants to enter into the marriage state.  The town or city clerk is hereby given full power and authority to administer oaths and may require the applicants to produce witnesses to identify them or either of them and may examine under oath or otherwise other witnesses as to any material inquiry pertaining to the issuing of the license, and if the applicant is a divorced person <strong>the clerk may also require</strong> the production of a certified copy of the decree of the divorce, or <strong>proof of an existing marriage of parties who apply for a license to be used for a second or subsequent ceremony</strong>; provided, however, that in cities or


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of the decree of the divorce, or <strong>proof of an existing marriage of parties who apply for a license to be used for a second or subsequent ceremony</strong>; provided, however, that in cities or towns the verified statements and affidavits may be made before any regular clerk or designee of the clerk's office.</p>


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</blockquote>
<p>The drafting is a bit sloppy, but the intent seems clear.  In light of this it is difficult to imagine an interpretation of the bigamy statute that would criminalize a &quot;second or subsequent&quot; marriage of a married couple.  Nonetheless, as noted above, this may not solve the problem presented in the question.</p>


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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>This is legal though uncommon in England - I did it nine days after my marriage abroad precisely because it was the easiest and cheapest way to get a marriage certificate in English. We arranged it with my local senior registrar in advance; unfortunately he did not inform his colleague performing the ceremony about this, causing a slight delay when we said &quot;no&quot; to her final check as to whether we were single, divorced or widowed.  We now have two wedding anniversaries each year.</p>


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<p>The relevant current position is set out in Section 13(2)(h)(iii) of the <a href="https://www.legislation.gov.uk/uksi/2015/207/part/3/made?view=plain" rel="noreferrer">Registration of Marriages Regulations 2015</a>, though this repeats provisions in earlier regulations.</p>
<blockquote>
<p>(2) In column 4 the registrar must enter the condition of the parties to the marriage in the following manner—  (h) ... if the marriage is between two parties who have previously been through a form of marriage with each other ... and neither of them has since married a third party, then ... (iii) if the ceremony was performed for the avoidance of doubt as to the validity of a previous ceremony, enter the words “Previously went through a form of marriage at … on …”, inserting the particulars of the place and date of the previous ceremony;</p>
</blockquote>
<p>and part of our marriage certificate looks like</p>


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</blockquote>
<p>and part of our marriage certificate looks like</p>
<p><a href="https://i.stack.imgur.com/YkHDs.png" rel="noreferrer"><img src="https://i.stack.imgur.com/YkHDs.png" alt="enter image description here" /></a></p>


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Answer 4: <p>I know two people who have married the same person twice for cultural reasons. In each case the husband was a Westerner; one bride was Indonesian, the other Bengali. Each bride had married in a Western country first; her parents didn't mind her marrying someone from outside their religion, provided she married within the norms of her culture. The parents wanted their friends and relatives to see that their daughter had indeed married properly, to someone who at least <em>dressed</em> as a Muslim or Hindu groom, and that she wasn't just shacking up with a Westerner.</p>
<p>IMHO bigamy is about an intention to deceive, and that was missing from these two sets of marriages.</p>


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Answer 5: <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 <a href="https://en.wikipedia.org/wiki/Edmunds_Act" rel="noreferrer">Edmunds Act, of 1882</a>, was passed into law by the 47th Congress. Despite its age, it was not repealed.</p>
<p>On page 3, it reads,</p>
<blockquote>
<p>Every person who has a husband or wife living who, in a Territory or other place over which the United States have exclusive jurisdiction, hereafter marries another, whether married or single [...]</p>
</blockquote>
<p>It is not an infringement on this statute to marry the &quot;same&quot; person again. Only &quot;another&quot;.</p>


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</blockquote>
<p>It is not an infringement on this statute to marry the &quot;same&quot; person again. Only &quot;another&quot;.</p>
<p>The <a href="https://travel.state.gov/content/travel/en/international-travel/while-abroad/marriage-abroad.html" rel="noreferrer">Department of State</a> states [sic]:</p>
<blockquote>
<p>If you get married abroad and need to know if your marriage will be recognized in the United States and what documentation may be needed, contact the office of the Attorney General of your state of residence in the United States.</p>
</blockquote>


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Answer 6: <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>This explicitly is not bigamy, which is defined in English law as a second marriage <em><strong>to another person</strong></em>.</p>
<blockquote>
<p>Whosoever, being married, shall <strong>marry any other person</strong> during the life
of the former husband or wife, whether the second marriage shall have
taken place in England or Ireland or elsewhere, shall be guilty of
felony, and being convicted thereof shall be liable</p>
<p><Sub><sup><a href="https://www.legislation.gov.uk/ukpga/Vict/24-25/100" rel="nofollow noreferrer">Offences Against the Person Act (1861)</a></Sub></sup></p>
</blockquote>
<p>Since no other person is involved, whatever this is, it's not bigamy.</p>


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Answer 7: <p>The bigamy law of Indonesia reads:</p>
<p>Artikel 279.</p>
<p>(1) Met gevangenisstraf van ten hoogste vijf jaren wordt gestraft:</p>
<p>1°. hij die een huwelijk aangaat, wetende dat zijn bestaand huwelijk of zijne bestaande huwelijken daartegen een wettig beletsel opleveren.</p>
<p>2°. hij die een huwelijk aangaat, wetende dat het bestaande huwelijk of de bestaande huwelijken van de wederpartij voor deze daartegen een wettig beletsel opleveren.</p>
<p>This is different from the current Dutch criminal code</p>
<p>Artikel 237<br />
1 Met gevangenisstraf van ten hoogste vier jaren of geldboete van de vierde categorie wordt gestraft:</p>
<p>1°.hij die opzettelijk een dubbel huwelijk aangaat;</p>
<p>2°.hij die een huwelijk aangaat, wetende dat de wederpartij daardoor een dubbel huwelijk aangaat</p>
<p>The Indonesian code refers to an existing marriage being a legal impediment to a second marriage. The Dutch code refers to a 'double marriage'.</p>


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<p>The Indonesian code refers to an existing marriage being a legal impediment to a second marriage. The Dutch code refers to a 'double marriage'.</p>
<p>Under Indonesian law marriage is a religious act recorded by the state, never ever a civil act of union, and Article 1 of the Marriage Act of 1974 and related court decisions makes it extremely clear that a marriage is conducted by a religious leader, and the state is only recording the act that has already taken place. However, for Muslims, the state is involved in the religious proceedings, while for non-Muslims this takes place only after the fact.</p>
<p>Of course historically marriage in many countries didn't even involve a religious leader, let alone the state, and the Indonesian words for 'marriage', are both Arabic words meaning sexual intercourse and/or marriage, i.e. 'kawin' and 'nikah'.</p>


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<p>The decision of the Constitutional Court in 46/PUU-VIII/2010 makes it clear that a purely Islamic marriage that does not involve the state's hand is still valid, providing it complied with Syariah law.</p>
<p>An unrecorded marriage in Indonesia is referred to as 'nikah siri'. This term is often used to describe any form of cohabitating couple who have not undergone any kind of religious ceremony whatsoever.</p>
<p>The term nikah siri is similar to that of نكاح العرفي or nikah 'urfi. <a href="https://en.wikipedia.org/wiki/Nikah_%27urfi" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Nikah_%27urfi</a> However siri/sirri are used only in Indonesia and Saudi Arabia.</p>
<p>The practice of unrecorded marriages/nikah siri is very common in Indonesia, and gives rise to bigamy in that a man requires his wive(s) permission to marry further women.</p>


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<p>The practice of unrecorded marriages/nikah siri is very common in Indonesia, and gives rise to bigamy in that a man requires his wive(s) permission to marry further women.</p>
<p>According to all the sources I can find, if you perform (Muslim) nikah with the same person twice then that is meaningless, and while it's quite common to do so, the second 'marriage' cannot possibly be a marriage.</p>
<p><a href="https://islamqa.info/en/answers/149267/he-did-the-marriage-contract-with-a-girl-but-did-not-tell-his-parents-and-he-wants-to-do-the-marriage-contract-again-in-their-presence" rel="nofollow noreferrer">https://islamqa.info/en/answers/149267/he-did-the-marriage-contract-with-a-girl-but-did-not-tell-his-parents-and-he-wants-to-do-the-marriage-contract-again-in-their-presence</a></p>
<p><a href="https://www.zawaj.com/askbilqis/doing-nikah-twice/" rel="nofollow noreferrer">https://www.zawaj.com/askbilqis/doing-nikah-twice/</a></p>


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<p><a href="https://www.zawaj.com/askbilqis/doing-nikah-twice/" rel="nofollow noreferrer">https://www.zawaj.com/askbilqis/doing-nikah-twice/</a></p>
<p><a href="https://questionsonislam.com/question/nikah" rel="nofollow noreferrer">https://questionsonislam.com/question/nikah</a></p>
<p>Since the second 'marriage' seems to be acceptable and indeed possibly desirable for familial harmony, while the second marriage does not create a new marriage, it does not seem that it is illegal to do so.</p>
<p>According to Catholic law, married people cannot remarry. They must have their existing marriage pronounced void. Article 1127 of Canon law provides 'It is forbidden to have another religious celebration of the same marriage'. 'Celebration' here refers to 'performing a marriage'.</p>
<p>It would appear that it might violate Indonesia's bigamy law for two Catholics to marry again.</p>


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<p>It would appear that it might violate Indonesia's bigamy law for two Catholics to marry again.</p>
<p>Since it can be difficult to register a marriage many years later, it's likely common for Indonesians of all religions to 'marry again', ignoring the fact of the earlier religious wedding. It is not likely anyone would ever be prosecuted for this, since the state has the goal of regularizing everyone's paperwork, i.e. making sure people have marriage certificates and so on, and getting this done is more important than the specific precise details....</p>


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Question Title: Terminating an independent contractor

Question Body: <p>If an independent contractor works for a company who assigns him shifts, can the company cancel the assigned shifts without warning or reason and effectively terminate the relationship? Assume there is no specific clause in any contract that handles termination. Is any sort of severance or notice required?</p>


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Answer 1: <p>If a contract calls for work on a shift by shift basis and doesn't contain any termination clause, the default assumption would be that the contractor can be terminated at any time without notice or severance.</p>
<p>But, this said, not everyone classified by the person hiring them as an independent contractor is really an independent contractor for the purposes of the law. It isn't at all uncommon for a business to classify someone as an independent contractor improperly when that person is legally an employee with all of the rights of an employee under the relevant legal definitions of an employee.</p>
<p>The determination of whether someone is an independent contractor or an employee is based upon the facts and circumstances of the relationship and not simply by the agreement of the parties. Few people who work on a shift by shift basis for a single firm are actually independent contractors. Most are actually employees.</p>


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Answer 2: <p>Assuming the contractor is actually a contractor, cancelling the contract would be governed by the contract itself. Many contractors use non-refundable deposits and include notice periods for this reason.</p>
<p>If there is nothing about cancelling the contract, the company can cancel it. They would potentially be liable for damages incurred to the client because of this such as missing other paid work or non-refundable expenses. Claiming these damages would involve going through small claims court.</p>
<p>Note that if no work was done, the contractor is not entitled to payment for the work- just other damages suffered.</p>


Tags: canada, common-law, labor-law, british-columbia


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Question Title: Is it true that the Chief Justice granted royal assent to the Online Streaming Act?

Question Body: <p>Within the first minute of <a href="https://www.youtube.com/watch?v=a7GdDLbm55U" rel="noreferrer">this video</a> it is asserted that, although the royal assent to Canadian legislation is normally granted by the governor general, in this case of the Online Streaming Act it was  somehow done by the chief justice, Richard Wagner.</p>
<p>In a quick search with search engines, I find no corroboration of this assertion.</p>
<p>I know that normally the governor general does this, and obviously the king can do it if he wants to (and on a few occasions that's been done), but I'd never heard of the chief justice doing such a thing.</p>
<p>What's the story here? Have there been previous cases of the chief justice rather than the governor general granting royal assent to legislation? Under what circumstances is such a thing done? How is this authorized by the constitution?</p>


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Answer 1: <p><a href="https://laws-lois.justice.gc.ca/eng/acts/R-8.6/page-1.html" rel="nofollow noreferrer">Royal Assent can be signified by one of two modes</a>: (1) &quot;in Parliament assembled&quot;; or (2) &quot;by written declaration.&quot; It was the latter mode by which Assent was signified <a href="https://canadagazette.gc.ca/rp-pr/p1/2023/2023-05-20/html/parliament-parlement-eng.html" rel="nofollow noreferrer">on April 27, 2023</a>:</p>
<blockquote>
<p>On Thursday, April 27, 2023, the Right Honourable Richard Wagner, acting in his capacity as Deputy of the Governor General, signified assent in His Majesty’s name to the bills listed below. Assent was signified by written declaration, pursuant to the Royal Assent Act, S.C. 2002, c. 15....</p>
</blockquote>
<p>Several justices of the Supreme Court of Canada, as well as the Secretary and Deputy Secretary to the Governor General are deputies of the Governor General:


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</blockquote>
<p>Several justices of the Supreme Court of Canada, as well as the Secretary and Deputy Secretary to the Governor General are deputies of the Governor General:
see their commissions in <a href="https://publications.gc.ca/collections/collection_2021/sen/Y4-441-4.pdf" rel="nofollow noreferrer">The Journals of the Senate, 44th Parl, 1st Sess., November 25, 2021</a>. (Note that their commissions currently exclude from them the power of &quot;signifying Royal Assent in Parliament assembled,&quot; the first of the two listed modes of Royal Assent above.)</p>
<p>The power to appoint deputies comes from the <a href="https://laws-lois.justice.gc.ca/eng/const/FullText.html" rel="nofollow noreferrer"><em>Constitution Act, 1867</em>, s. 14</a> and the <a href="https://www.collectionscanada.gc.ca/obj/001060/f2/1940/cgc_p2-0_v081_n012_t002_000_19471001_p00000.pdf" rel="nofollow noreferrer">Letters Patent constituting the office of the Governor General</a>.</p>
<p>Section 14:</p>


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<p>Section 14:</p>
<blockquote>
<p>It shall be lawful for the Queen, if Her Majesty thinks fit, to authorize the Governor General from Time to Time to appoint any Person or any Persons jointly or severally to be his Deputy or Deputies within any Part or Parts of Canada, and in that Capacity to exercise during the Pleasure of the Governor General such of the Powers, Authorities, and Functions of the Governor General as the Governor General deems it necessary or expedient to assign to him or them, subject to any Limitations or Directions expressed or given by the Queen; but the Appointment of such a Deputy or Deputies shall not affect the Exercise by the Governor General himself of any Power, Authority, or Function.</p>
</blockquote>
<p>Letters Patent, s. VII:</p>
<blockquote>


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</blockquote>
<p>Letters Patent, s. VII:</p>
<blockquote>
<p>And Whereas by The British North America Acts 1867 [<em>Constitution Act, 1867</em>] to 1946, it is amongst other things enacted that it shall be lawful for Us, if We think fit, to authorize Our Governor General to appoint any person or persons, jointly or severally, to be his Deputy or Deputies... Now We do hearby authorize and empower Our Governor General... to appoint any person or persons... to be his Deputy or Deputies...</p>
</blockquote>
<p>This is also mirrored in the provinces, where the Deputy Lieutenant Governor is typically the Chief Justice of the province.</p>


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</blockquote>
<p>This is also mirrored in the provinces, where the Deputy Lieutenant Governor is typically the Chief Justice of the province.</p>
<p>Royal Assent is reported in the Canada Gazette, the official newspaper of the Government of Canada. There are <a href="https://www.canada.ca/en/public-services-procurement/gazette/advanced-search.html?exctq=wagner&amp;wb-srch-sub=" rel="nofollow noreferrer">many other examples of Royal Assent being signified by the Chief Justice</a>, acting in his or her capacity as Deputy of the Governor General.</p>


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Answer 2: <p><a href="https://en.wikipedia.org/wiki/Royal_assent#Canada_2" rel="noreferrer">Wikipedia</a>:</p>
<blockquote>
<p>Under the Royal Assent Act, 2002, the alternative practice of granting assent in writing, with each house being notified separately, was brought into force. The speaker of the Senate or a representative reads to the senators the letters from the governor general regarding the written declaration of royal assent. <strong>As the act provides, royal assent is to be signified—by the governor general or by a deputy, usually a Justice of the Supreme Court.</strong></p>
</blockquote>
<p>(Emphasis added)</p>
<p>No mention of the identity of the person granting royal assent is to be found in the (rather short) <a href="https://laws-lois.justice.gc.ca/eng/acts/R-8.6/page-1.html" rel="noreferrer">Royal Assent Act 2002</a>.</p>


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<p>The <a href="https://laws-lois.justice.gc.ca/eng/const/page-1.html#h-3" rel="noreferrer">constitution</a> provides that the monarch may authorize the governor general to appoint deputies:</p>
<blockquote>
<p>14 It shall be lawful for the Queen, if Her Majesty thinks fit, to authorize the Governor General from Time to Time to appoint any Person or any Persons jointly or severally to be his Deputy or Deputies within any Part or Parts of Canada, and in that Capacity to exercise during the Pleasure of the Governor General such of the Powers, Authorities, and Functions of the Governor General as the Governor General deems it necessary or expedient to assign to him or them, subject to any Limitations or Directions expressed or given by the Queen; but the Appointment of such a Deputy or Deputies shall not affect the Exercise by the Governor General himself of any Power, Authority, or Function.</p>
</blockquote>


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</blockquote>
<p>Wikipedia on <a href="https://en.wikipedia.org/wiki/Deputy_of_the_Governor_General_of_Canada" rel="noreferrer">Deputy of the Governor General of Canada</a>:</p>
<blockquote>
<p>Currently, the secretary to the governor general, the deputy secretary to the governor general, and the justices of the supreme court are called upon to act as deputies of the governor general; when the latter are acting in this capacity, they are addressed as The Honourable the Deputy of Her Excellency the Governor General. The deputy's commission will read as follows: [...]</p>
</blockquote>
<p>I couldn't find much more on this in official sources, neither on the site of the Governor General's office nor in that of the Supreme Court.  But I did find a couple of news articles reporting the resignation of Governor General Julie Payette and noting that the Chief Justice would assume the role while the office was vacant.</p>


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Answer 3: <p>Jen's answer above is either insufficient or requires clarification (I don't have privileges to post comments at this time)</p>
<p>Jen points out that The Governor General has appointed Richard Wagner as her Deputy, as published in <a href="https://publications.gc.ca/collections/collection_2021/sen/Y4-441-4.pdf" rel="nofollow noreferrer">https://publications.gc.ca/collections/collection_2021/sen/Y4-441-4.pdf</a>. However, The text of the commission clearly and explicitly states &quot;<em>... <strong>all the powers</strong>, authorities and functions vested
in and of right exercisable by me as Governor General, <strong>saving and excepting the powers of</strong> dissolving, recalling or proroguing the Parliament of Canada, of appointing members of the Ministry and of <strong>signifying Royal Assent</strong> in Parliament assembled</em>&quot;</p>


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<p>It seems to me that Richard Wagner has the power to signify Royal Assent by written declaration. This limits him to giving assent to non-spending bills. (thank you @alexg for the clarification). Given that royal assent is done for the sake of tradition, and the GG does not have the discretion to decline giving assent, the practical function of assent is to stamp a &quot;valid date&quot; on new legislation, but nothing more. Ie, the only thing gained by delegating this power to Deputies is that the inevitable royal assent can be given with less delay than if only the GG had the power.</p>


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<p>The commission also indicates the powers are available to Wagner &quot;<em>...whether I be absent form Canada or not</em>&quot;, rather than only at times the Governor General is &quot;unavailable&quot;. The two terms, &quot;unavailable&quot; and &quot;absent from Canada&quot; are clearly not interchangeable, but this point is moot in the case of the Wagner commission; I merely point it out because @Jen uses the wrong terminology. Legislating is important business. Let's get the language right. A more correct description would be &quot;the Governor General has unconditionally delegated most powers...&quot;. The effect is that when a Governor General power is required, either Wagner or the General Governor can be contacted, with equal effect, at the discretion of the power seeker. It makes no practical difference for royal assent, but in other cases like making regulations, it could mean that a Deputy can make a regulation that is different than the GG would have made. I think there


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no practical difference for royal assent, but in other cases like making regulations, it could mean that a Deputy can make a regulation that is different than the GG would have made. I think there is reason for concern regarding the unconditional delegation of powers, but not because of royal assent powers.</p>


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Question Title: Can the victim drop charges?

Question Body: <p>In this example, pretend Alex stabs Bob using cutlery (a knife) at a restaurant, who subsequently presses charges as it was an unprovoked attack.</p>
<p>Bob later decides to drop the charge, he has survived but it left with reduced hand movement to the extent he can no longer write, or hold a mobile phone.</p>
<p>In this narrow scenario, that assumes there were no other factors at play (for example the knife style was not banned), since Bob has dropped the charge are the police still allowed to pursue the attacker Alex?</p>
<p>This question is for the United Kingdom, England and Wales only.</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>In England and Wales, with the exception of <a href="https://www.gov.uk/government/publications/private-prosecutions/private-prosecutions" rel="noreferrer">private prosecutions</a>, complainants don't 'press' (or drop) charges.</p>
<p>There are several public authorities that can prosecute criminal offences but generally we talk about circumstances that involve the police and the Crown Prosecution Service (CPS).</p>


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<p>There are several public authorities that can prosecute criminal offences but generally we talk about circumstances that involve the police and the Crown Prosecution Service (CPS).</p>
<p>When a crime is reported to the police the police investigate. When the police complete their investigation they refer the case and send the evidence to the CPS. (A minor offence such as low value shoplifting can be handled by the police, although if the case goes to court it must be reviewed by the CPS before the first hearing.)</p>
<p>Generally <a href="https://www.cps.gov.uk/publication/code-crown-prosecutors" rel="noreferrer">the CPS decides whether to prosecute</a> based on 'the Full Code Test'. In short:</p>
<ol>
<li><p>&quot;Is there enough evidence against the suspect to provide a realistic prospect of conviction?&quot;</p>
</li>
<li><p>&quot;Is it in the public interest to prosecute?&quot;</p>
</li>
</ol>


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<li><p>&quot;Is there enough evidence against the suspect to provide a realistic prospect of conviction?&quot;</p>
</li>
<li><p>&quot;Is it in the public interest to prosecute?&quot;</p>
</li>
</ol>
<p>(In urgent situations the CPS might decide it's necessary to decide based on 'the Threshold Test'.)</p>
<p>The CPS prosecutes on behalf of the Crown, not the complainant. A criminal case is named along the lines of Rex/Regina or R. v Alex, not Bob v Alex.</p>
<p>Sometimes it may be difficult to proceed with prosecution if a complainant (or witness) decides not to cooperate or sometimes the CPS might decide not to prosecute because of the complainant's circumstances.  But the CPS is allowed to prosecute without the complainant's approval or cooperation.</p>


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<p>Under the <a href="https://www.cps.gov.uk/legal-guidance/victims-right-review-scheme" rel="noreferrer">Victims' Right to Review Scheme</a>, in some circumstances a complainant can seek a review of a CPS decision <em>not</em> to prosecute or decision to stop a prosecution.</p>


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Answer 2: <p>The idea of a victim pressing or dropping charges is largely a myth. It is true that the law may take the victim's wishes into account for minor offenses but neither the police nor the prosecution service need their permission.</p>
<p>It'd be a terrible thing if this was the case- you'd give every criminal the incentive to intimidate or silence their victim.</p>
<p>In this case the police would continue to investigate and would charge Alex with some kind of assault (depending on the exact nature of the attack). Given the nature of the crime, the prosecution service could likely secure a conviction without Bob.</p>


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Answer 3: <p>Bob cannot drop charges, that's up to the police and the prosecutor.</p>
<p>What <em>can</em> happen though is that if Bob was the only witness, and without Bob's witness statement it is unlikely that Alex would be convicted, and Bob refuses to be a witness, then police and prosecutor may give up on trying to solve the case and convict Alex. On the other hand, if by chance there were two police officers in the restaurant who saw everything that happened and who are reliable witnesses for Alex's crime, then the prosecution will continue. A real case will be somewhere in between, so the prosecutor will decide what the chances of a conviction are.</p>


Tags: united-kingdom, criminal-law, england-and-wales


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Question Title: Does being a student in the EU allow one to do internships anywhere in the EU?

Question Body: <p>Can a student, studying in the EU with a student visa take on a summer internship?  Could they take an internship anywhere in the EU?</p>
<p>I tried asking my student office but they haven't replied.</p>


Answer 1: <p>No, as a non-EU/EEA/CH citizen, you don't benefit from the freedom of movement and work given to EU citizens by Union law.<br />
Depending on the national law of the country you're doing your masters in, you may be able to do an internship in that country</p>
<p>If you wish to do an internship in other EU countries, you must follow the appropriate rules as a non-EU citizen in the country you wish to do one</p>


Tags: european-union


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Question Title: Legal consequences of not tipping in the US

Question Body: <p>In the US, there is an expectation of almost always tipping certain service providers like waiters and bartenders. Generally, it is expected that customers tip 15% for ordinary service, 20% or more for great service (or when in a large group), and even poor service is supposed to merit 10%. Tipping nothing is considered appropriate only for extremely bad behavior from the service provider.</p>

<p>Whenever the topic comes up, many people are enraged at the suggestion of not tipping. It's not unheard of for service providers to harass the customer or even throw them out for refusing to tip, and it is easy to find people claiming that they go further and sabotage the customer by spitting in their food, deliberately serving them very poorly, trashing their car, etc.</p>

<p>My question is 2 part:</p>


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<p>My question is 2 part:</p>

<ul>
<li>Is there any legal obligation whatsoever for the customer to tip? I know some businesses have a mandatory minimum tip or service charge which is clearly shown in writing, I am excluding these from my question.</li>
<li>Is it legal for the employee to retaliate against a bad tipper? Even if the customer tipped nothing, they still paid the price of the service, part of which covers the employee's paycheck as well. What minimum level of service is a customer reasonably entitled to expect, legally speaking, even if they do not tip?</li>
</ul>


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Answer 1: <p>You are perfectly within your rights not to tip. Unless you start your dining experience with &quot;I'm not going to be tipping you tonight, just to let you know.&quot; you will get the same service as anyone else.</p>
<p>Most businesses are within their rights to ask you to leave for any reason except those explicitly prohibited by law. So conceivably if you started off with the preceding sentence, the manager could ask you to leave.</p>
<p>Not tipping wait staff at most restaurants is still an awful thing to do. No customers like tipping.</p>
<p>Unfortunately, tipped staff can and usually are paid well below the conventional minimum wage. That they can be, is codified into law and would take a substantial amount of effort to change. Business owners are able to push the cost of paying their employees a livable wage onto their customers, and we are forced to accept it.</p>


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<p>It's a hideously flawed system that is ever so slowly changing, but it doesn't change the fact that if everyone decided not to tip, the wait staff in 95% of restaurants wouldn't be able to survive on their 'wages'.</p>
<p>So you are within your rights not to tip, you probably won't suffer anything negative unless you are aggressively up front about the fact that you aren't going to tip, and you will be punishing the person with the least power in the equation for the fact that you don't like how the system works over here.</p>
<p>Tipping a bartender is different and usually less necessary, and more likely to be drink is four bucks and a bit, here's a fiver keep the change. Tipping less or more than that may change the speed at which you get refills or attention.</p>


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Answer 2: <blockquote>
  <p>Is there any legal obligation whatsoever for the customer to tip? I
  know some businesses have a mandatory minimum tip or service charge
  which is clearly shown in writing, I am excluding these from my
  question.</p>
</blockquote>

<p>No. There is no such legal obligation.</p>

<blockquote>
  <p>Is it legal for the employee to retaliate against a bad tipper?</p>
</blockquote>

<p>It depends on the method for retaliation. For instance, some conduct might be disorderly or violent enough to be sanctioned by the penal code, or it might subject the customer to a risk of communicable diseases/infections, or reasonably cause the customer to feel frightened/harassed, etc.</p>


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Answer 3: <p>Part One:  Tipping is not required by law but there is a social stigma about not tipping, to the point that tipping anything below 20% will make most Americans blush, even if the service is exceptionally crummy.  Tipping in the U.S. is a reward system that allows the customer to reward exceptional service and punish abysmal service.  It is not unheard of for customers who will tip 0% to leave a note detailing reasons why they found the service so bad that they left no reward.  On the flip side, it's not unheard of for over 20% tips to come in.  Famously Far Right Talking Head Rush Limbaugh is rumored to leave tips of at least 100% for his meals and several other nice celebrities are known to have a larger tip than necessary.</p>


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<p>Most minimum wage laws do allow employers who have employees receiving tips to pay well under minimum wage, but these can same employees can make in excess of minimum wage depending on the night, the type of restaurant, and even the section of tables they are working.</p>

<p>Part 2:</p>


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<p>Part 2:</p>

<p>Depends on the retaliation.  Staff may sit bad tippers with consistently poor staff, but this is anecdotal.  Teenagers are typically the worst across the board tippers so they tend to receive slower service as are some foreigners where tipping is not practiced as regularly (in Japan, for example, tipping is considered extremely rude, as it implies that the individual receiving the tip will soon be out of a job for their poor work, and will need the cash to help out during this time).  As mentioned else where, endangering the health of a customer such as spitting in the food of a consistently poor tipper is illegal.  Either way, retaliation is not the best course of action because the key to a better tip is better service.</p>


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<p>As a final rule, since it is not discussed, counter service that put out a tip jar has a lower expectation to receive a tip for service and there is little stigma against not tipping at these places than there is for not tipping at a dining service.</p>


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Answer 4: <p>Is there any legal obligation whatsoever for the customer to tip?</p>
<ul>
<li>A tip is a gratuity, not an obligation.  A mandatory tip a surcharge.  Given that, certainly tip is not an obligation.</li>
</ul>
<p>Is it against a bad tipper?</p>
<ul>
<li>IMHO restaurants, although receive public and generate revenues from sales, restaurants are not public places but private. Therefore a restaurant can ban you for any reason, including non tipping people.</li>
</ul>
<p>Any side effect against waitresses when customers don't tip?</p>
<ul>
<li>certainly yes.  Waitresses are expected to get tips and share these tips among co-workers aliviating the burden to pay salaries from the restaurant owner.  The owner therefore may retaliate against that employee that does not generate tips or even let go (or make go) the employee.</li>
</ul>


Tags: united-states, contract-law


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Question Title: What award can an unpaid independent contractor expect? What are the legal incentives to pay contractors?


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Question Body: <p>I (Washington State, USA) worked, under contract, for an LLC (Los Angeles, California, USA) and never received payment.  I was considered an independent contractor; contract specifies Californian jurisdiction.  I have limited legal counsel and anticipate legal action in small claims court.  I anticipate that no representative of that LLC will come to court, and expect a default judgment.  For purposes of this question, let's say that the contract specified US$500 for my services, and I have received none of this.</p>
<p>What awards can I expect?  In what ways would a judge's decisions about awards be legally limited?  $500?  Interest?  Time spent pursuing collections?  Filing fee?  Anything else?  My research so far suggests $500 plus reasonable (less than credit card) interest.</p>


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<p>I am primarily interested in this because it doesn't seem that there are any legal incentives for LLCs to actually pay their contractors; if only a fraction of contractors seek justice, and the award never exceeds the originally agreed upon amount, then the rational decision would seem to be, don't pay the contractor.  Are there any other legal disincentives for this behavior?</p>
<p>I'm aware that Los Angeles has recently passed a Freelancer Protection Act, but to my knowledge, I am not covered by this act-- I am located outside of LA and the contract was entered into prior to the passage of this act.</p>


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Answer 1: <blockquote>
<p>What awards can I expect? In what ways would a judge's decisions about
awards be legally limited? $500? Interest? Time spent pursuing
collections? Filing fee? Anything else? My research so far suggests
$500 plus reasonable (less than credit card) interest.</p>
</blockquote>
<p>Your lawsuit would be for breach of contract, probably filed in California small claims court for this small dollar amount.</p>
<p>An award for breach of contract includes:</p>
<ol>
<li><p>the amount not paid pursuant to the contract,</p>
</li>
<li><p>pre-judgment interest from the date that payment was due at the statutory rate in California (the legal rate specified in the contract applies until the contract is superseded by the verdict, but if the prejudgment interest rate is not specified in the contract, the rate is ten percent per annum from the date of the breach, California Civil Code § 3289),</p>
</li>


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</li>
<li><p>post-judgment interest at the statutory rate in California (<a href="https://law.justia.com/codes/california/2007/ccp/685.010-685.110.html" rel="nofollow noreferrer">10% per annum in a contract if not otherwise specified</a>), and</p>
</li>
<li><p><a href="https://law.justia.com/codes/california/2007/ccp/685.010-685.110.html" rel="nofollow noreferrer">out of pocket costs incurred in filing the lawsuit</a> (typically, the filing fee, the service of process fee, postage, copying costs incurred for trial exhibits, and <a href="https://law.justia.com/codes/california/2007/ccp/685.010-685.110.html" rel="nofollow noreferrer">any court fees incurred to collect the judgment</a> if it is entered).</p>
</li>
</ol>
<p>Attorney fees are not available unless the contract says so. You are not entitled to any recovery for time spent pursuing collections.</p>


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</li>
</ol>
<p>Attorney fees are not available unless the contract says so. You are not entitled to any recovery for time spent pursuing collections.</p>
<p>Often you have have a collections agency collect it for a percentage of the amount recovered (probably 50% in a claim of this size) plus a small fee, although they might not accept such a small dollar amount debt to collect. The main virtue of this is that it hurts the credit of the person who owes the money, a harm to the non-paying customer that is often far worse than not paying the amount owed on time.</p>
<blockquote>
<p>Are there any other legal disincentives for this behavior?</p>
</blockquote>


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<blockquote>
<p>Are there any other legal disincentives for this behavior?</p>
</blockquote>
<p>A well drafted contract can provide for an award of attorney fees incurred in collecting the debt, can set a non-usurious interest rate and late fees for non-payment, and can take steps like requiring a deposit up front, or consenting to service of process by mail, to make collection more likely and to create stronger incentives to pay.</p>
<p>Also, if the non-payment rate is low enough and the value of your time doing what you normally get paid to do is high, it may not make economic sense to pursue bad debt which takes some time and some money to get a small potential recovery, as opposed to letting it slide and doing more work that does pay.</p>


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<p>A small claims lawsuit is probably ten to thirty hours of work for which you will not be compensated even if you win. Depending upon your average hourly rate for your labor, and the percentage of your billings that go uncollected, it may not make economic sense to collect the unpaid bill, or you may want to delegate the job to someone else whose effective hourly rate of labor value is lower.</p>
<p>Courts are cost effective places to collect large debts, and can be cost effective if many people owe you money and you can mass produce your collections process (as, for example, credit card companies do). But courts are often not cost effective for collecting one off small dollar amount debts, despite the streamlined process and reduced filing fees that are available in small claims court.</p>
<blockquote>
<p>if only a fraction of contractors seek justice, and the award never
exceeds the originally agreed upon amount, then the rational decision


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<blockquote>
<p>if only a fraction of contractors seek justice, and the award never
exceeds the originally agreed upon amount, then the rational decision
would seem to be, don't pay the contractor.</p>
</blockquote>
<p>Consumers are not purely rational actors on a transaction by transaction basis in these matters. The vast majority of the time, people pay as agreed even though they could get away with paying less by forcing the person who did business with them to sue them to get paid. On a case by case basis, this is often not rational, but as a long term strategy for all transactions that a consumer enters into, it often does make rational sense.</p>


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<p>In small dollar transactions, blacklisting people from future business and harming their credit records is usually enough of an incentive to make uncollectible invoices an acceptable cost of doing business. But a good business person does evaluate every customer to whom trade credit is extended for creditworthiness if the customer does not pay in advance.</p>
<p>On the other hand, as a business person, you may have a strategic interest in pursuing every unpaid invoice even if it isn't cost effective to do so when considering that unpaid invoice in isolation, in order to instill in your customers the knowledge that when you say you will sue them if you aren't paid, that you are making a credible threat. This may discourage people from not paying you in the first place.</p>


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Question Title: Does an MLAT request have an age limit?

Question Body: <p>Having recently found out about Mutual Legal Assistance Treaty (MLAT) requests, I had some questions that I could not find on the government (gov.uk) website. I am interested in both between UK and EU and between UK and non-EU MLAT requests.</p>
<p>Would the alleged perpetrator's age be a factor, for example if they were at the time of the crime (or still are) under the age of criminal responsibility in either the UK or the other country. Could that prevent an MLAT being used?</p>
<p>Would it be based on the age of criminal responsibility (nine years of age in England &amp; Wales), or the age that the country considers citizens to be adults (I believe is 16 in England &amp; Wales)?</p>
<p>Would the answers to the above also apply to the alleged victim, for example they were too young at the time of the crime for an MLAT to be used to investigate whatever crime they were a victim of?</p>


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Answer 1: <p><strong>Short answer</strong></p>
<blockquote>
<p>Does an MLAT request have an age limit?</p>
</blockquote>
<p>Not really. But there is little or no legal authority resolving this question definitively.</p>
<p><strong>Long answer</strong></p>
<blockquote>
<p>Treaties on Mutual Legal Assistance in Criminal Matters (MLATs) enable
law enforcement authorities and prosecutors to obtain evidence,
information, and testimony abroad in a form admissible in the courts
of the Requesting State....MLATs require the Requested State to
provide the Requesting State with certain kinds of assistance or
evidence such as documents, records, and testimony, provided the
requirements of the treaty are satisfied. The process is streamlined
through the establishment of a “Central Authority” within each country</p>
</blockquote>
<p>(<a href="https://www.justice.gov/criminal-oia/file/1498806/download" rel="nofollow noreferrer">Source</a>)</p>


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</blockquote>
<p>(<a href="https://www.justice.gov/criminal-oia/file/1498806/download" rel="nofollow noreferrer">Source</a>)</p>
<p>Ultimately, what is covered by an MLAT depends upon the exact language of the treaty in question. An MLAT is typically a bilateral treaty between two countries only, so most countries have dozens of separate MLATs that apply to different countries. In order to write this answer, I reviewed a representative sample of MLATs, all of which tend to follow a similar model. This was possible because these treaties tend to be quite short.</p>
<p>Typically, a mutual legal assistance treaty (MLAT) is limited to &quot;<strong>criminal matters</strong>&quot;, but expressly excludes military justice cases, national security cases, and political offenses.</p>
<p>Newer MLATs often also sometimes exclude petty offenses such as less serious misdemeanors and traffic offenses from their definition of &quot;criminal matters&quot;.</p>


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<p>Newer MLATs often also sometimes exclude petty offenses such as less serious misdemeanors and traffic offenses from their definition of &quot;criminal matters&quot;.</p>
<p>On the other hand, MLATs often including prosecutions of violations of government regulations, and civil forfeiture cases, in their definition of &quot;criminal matters&quot;. They do this either by including them in the express language of the treaty itself, or through statements in an official commentary to the treaty prepared during negotiations over the treaty between the countries that are parties to it.</p>


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<p>The context of what is allowed in an MLAT in the treaty itself also makes clear that the term &quot;criminal matters&quot; includes suspected criminal matters where it has not yet been established definitively that a crime has been committed at all. Half of the reason for an MLAT is to assist law enforcement in one country in the process of investigating suspected crimes, just as they would domestically. An MLAT doesn't only pertain to prosecutions of already identified suspects whose crimes are already well established.</p>
<p>Apart from this very thin level of guidance, however, an MLAT typically does not tightly define what constitutes a &quot;criminal matter&quot;.</p>


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<p>Apart from this very thin level of guidance, however, an MLAT typically does not tightly define what constitutes a &quot;criminal matter&quot;.</p>
<p>Extradition treaties usually require that a person be extradited to a requesting country for a crime only if the producing country has an offense similar in character and severity of punishment to that of the requesting country. But MLATs typically do not require &quot;dual criminality&quot; to compel the producing country to assist the requesting country in obtaining evidence for a criminal prosecution by the requesting country.</p>
<blockquote>
<p>Would the answers to the above also apply to the alleged victim, for
example they were too young at the time of the crime for an MLAT to be
used to investigate whatever crime they were a victim of?</p>
</blockquote>
<p>The age of the alleged victim would be irrelevant to whether something was a criminal matter which an MLAT can be used to investigate or gather evidence regarding.</p>


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</blockquote>
<p>The age of the alleged victim would be irrelevant to whether something was a criminal matter which an MLAT can be used to investigate or gather evidence regarding.</p>
<p>Nothing in the concept of an MLAT or the typical terms of an MLAT would suggest that this is the case. Nothing suggests that offense against juveniles, from child abuse to child molestation to theft from children, cannot be investigated using the MLAT process.</p>
<blockquote>
<p>Would the alleged perpetrator's age be a factor, for example if they
were at the time of the crime (or still are) under the age of criminal
responsibility in either the UK or the other country. Could that
prevent an MLAT being used?</p>
<p>Would it be based on the age of criminal responsibility (nine years of
age in England &amp; Wales), or the age that the country considers
citizens to be adults (I believe is 16 in England &amp; Wales)?</p>
</blockquote>


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age in England &amp; Wales), or the age that the country considers
citizens to be adults (I believe is 16 in England &amp; Wales)?</p>
</blockquote>
<p>There is little or no academic commentary, and little or no case law, addressing the question of whether juvenile delinquency offense that would be crimes if committed by adults count as &quot;criminal matters&quot; for purposes of an MLAT.</p>
<p>Ultimately this question would usually be resolved by the &quot;Central Authority&quot; in the state receiving a request for assistance under the MLAT interprets it.</p>
<p>The term &quot;criminal matters&quot; in an MLAT, however, is typically given a fairly broad definition to the extent that it is defined at all, as noted above.</p>
<p>Also, an MLAT is frequently used in criminal investigations before the identity or age of the offender or suspect is known.</p>


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<p>Also, an MLAT is frequently used in criminal investigations before the identity or age of the offender or suspect is known.</p>
<p>For example, an MLAT could certainly be used to investigate a suspected bike theft gang that appeared to be operating across the border between the Netherlands and Belgium, even if there was a reasonable chance that some or all of the members of the gang were minors, but law enforcement wasn't yet sure who was involved in the gang.</p>
<p>So, the more plausible reading of the term &quot;criminal matters&quot; in an MLAT, in most cases, is that for purposes of the MLAT, an offense that would be a criminal matter if committed by an adult, does not cease to be a criminal matter merely because it was committed by a minor.</p>


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<p>This would be a fair reading of these treaties, even if an offense may be official classified for domestic purposes as &quot;juvenile delinquency&quot; or something similar when it is committed by a minor, rather than being usually handled by the criminal justice system for adult offenders.</p>
<p>This being said, there certainly is a legitimate argument that could be made that juvenile offenses should not count as &quot;criminal matters&quot; for purposes of an MLAT, at least when domestic criminal laws make that distinction. MLATs are rarely clear on this point, and it is fair, to argue at least, that something which isn't defined formally as a &quot;criminal matter&quot; in the requesting country's domestic law shouldn't count as a &quot;criminal matter&quot; for purposes of the MLAT.</p>


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<p>People suspected of engaging in conduct that would be a crime if committed by an adult, however, will not generally have standing to participate in the treaty implementation process. An MLAT is generally implemented through government to government interaction through each country's &quot;Central Authority&quot;, in which a suspected criminal or investigation target has no involvement. And, as previously noted, decisions regarding what is covered by the treaty are usually going to be made by the Central Authority of the country receiving a request for legal cooperation from the Central Authority of another country.</p>
<p>So, juvenile's charged with offenses that would be crimes if committed by adults are in a poor position procedurally to argue that an MLAT should be interpreted in a narrow manner to exclude their case, and would have only a weak argument to support that position, even if they could.</p>


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Question Title: Legality of using book covers from Google Books API on a website

Question Body: <p>Under US copyright law, is it legal to download images of book covers from the Google Books API and display them on my website? The purpose pertains to obtaining product images for an online store that specializes in second-hand book sales.</p>


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Answer 1: <p>Not necessarily, but also possibly.</p>
<p>Google Books may (or may not) have a license to distribute images of the book covers in question. This license would be between Google and the owner of the copyright of the book cover. Just because Google has a license to distribute the image of the book cover to you does not mean that you have a license to distribute the image of the book cover to your customers.</p>
<p>However, depending on jurisdiction, using the book cover to identify a book might also be legal under relevant fair use statutes.</p>
<p>It is also possible that the particular book cover is not protected by copyright. For example, a particular book cover might have entered public domain.</p>
<p>If this question is not a hypothetical, you should probably consult a lawyer.</p>


Tags: united-states, copyright, fair-use


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Question Title: How can I tell if a court case exists?

Question Body: <p>As someone without access to pricy legal search engines, how can I tell if a given case exists?</p>
<p>For context, a lawyer was recently found to have cited a number of cases hallucinated by ChatGPT.  The <a href="https://storage.courtlistener.com/recap/gov.uscourts.nysd.575368/gov.uscourts.nysd.575368.46.1.pdf" rel="nofollow noreferrer">transcript of his ChatGPT session</a> is now online.  ChatGPT cited 39 cases in response to queries by the lawyer; I'd like to see how many of them are real.  Some, such as <em>Bell Atlantic v. Twombly</em> are easy &quot;yes&quot;s: they've got Wikipedia articles.  Six of them, such as <em>Varghese v. China Southern Airlines</em>, are easy &quot;no&quot;s: they were called out as fake in the court filings.</p>
<p>But what about the remaining cases?</p>


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Answer 1: <p>A properly cited case will include a reference to <a href="https://law.stackexchange.com/questions/89453/how-to-decode-a-citation-to-a-case-reporter">a case reporter, online database, or neutral citation</a>. To confirm that the case exists, you would have to track down the purported reporter/journal/database and query whether the case exists at that location.</p>
<p>There is <a href="https://law.meta.stackexchange.com/questions/261/online-legal-references">a meta post</a> that presents online legal research tools. Many universities and courts have <a href="https://en.wikipedia.org/wiki/Public_Law_Libraries_(U.S.)" rel="nofollow noreferrer">public law libraries</a> that have access to printed reporters and/or online databases.</p>


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Answer 2: <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>For absolute certainty, you could do what the court in the linked Chat-GPT case did: contact the clerk of the court that issued the alleged opinion and ask if that opinion really exists.</p>
<p>In the case of cases reported in the various leading case reporters, however, free Google searchable services will generally have full text copies that can be found online. These resources have close to 99% of published appellate court opinions that are reported in recognized case reporters in the U.S. Secondary materials are often hard to get online for free, but primary legal authorities are usually easy to find.</p>


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<p>Westlaw, Lexis, and some specialized subject matter services like tax publishers, often also have unpublished or unreported decisions that would not be revealed by such a search. But, while the vast majority of cases decided are unpublished, the vast majority of cases cited in legal briefs are published decisions that are reported in recognized case reporters. And, in some courts, citations to unpublished opinions, must be accompanied by the full text of those decisions or are entirely forbidden.</p>
<p>So, you could restrict inquiries to court clerks to cases whose existence is not verified from free sources on the Internet.</p>


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Question Title: When flatmates get an AVO against each other, who has to move out?

Question Body: <p>If one flatmate trespasses in another’s room after an extended period of hostile verbal and nonverbal communication, can the flatmate who was trespassed against get an AVO? If so, who has to move out?</p>


Answer 1: <p>Usually, an order would specify what happens. There is no hard and fast rule in this situation.</p>


Tags: criminal-law, australia, family-law, new-south-wales, domestic-abuse


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Question Title: Prevent family overriding organ donation wishes

Question Body: <p>In the UK, the NHS generally allows families of the deceased to override their expressed wishes to donate their organs.</p>

<p>Is there any legal mechanism whereby a person could prevent this from happening such that their organs were donated regardless of their family's consent?</p>


Answer 1: <h2>No</h2>

<p>Your information is slightly <a href="https://www.organdonation.nhs.uk/helping-you-to-decide/about-organ-donation/faq/consent/" rel="nofollow noreferrer">wrong</a>. Families do not have the <em>legal</em> right to override the wishes of the prospective donor, however, the ultimate legal decision maker (where donor consent has been given) is the medical practitioner. The donor or the family can influence that decision but they can’t dictate it. Most doctors will not harvest in opposition to the family’s wishes but that is a matter that is legally within the doctor’s discretion.</p>


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Question Title: Can this statement be considered a threat?

Question Body: <p>If you write in an email, &quot;Enter at your own risk. Anyone trying to enter a home without permission or consent will be treated as a trespasser or intruder.&quot;. Is that considered at threat?</p>
<p>For country specific or local laws, United States / Florida.</p>


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Answer 1: <p>In the U.S. it does not.  U.S. has strong Castle Law doctrines and self-defense laws that allow the use of firearms for self-defense within the home.   The sign is that the homeowner is armed and will defend himself if there is an intruder.   Florida is also a stand your ground state which means that in public, self-defense is valid use of force for civilians even if they have the ability to flee the would be criminal.</p>
<p>As anecdotal evidence, when I was living in the state, my boss was telling me the story of how he got a gun and went to do some paperwork at the sheriff's office.  When the deputy received the paperwork, he saw that the gun was going to be used for home defense and told my boss, &quot;In the case of home defense, if, God forbid someone enters your home looking to do harm to you and yours, remember:  Shoot to kill.  It's less paperwork for us.&quot;</p>


Tags: united-states, florida


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Question Title: Can you be fired for refusing to lie?

Question Body: <p>If your employer asks you to lie about something, and telling the lie is legal, but you refuse on moral grounds, can they fire you? Does it matter if religious beliefs are involved? (For example, if a Christian saying &quot;I believe the Bible says lying is wrong&quot; is protected, is an atheist saying &quot;I believe the world would be a better place if people didn't lie&quot; also protected?)</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>Since &quot;lying&quot; is not a clearly-defined legal concept, we need to look at a specific kind of (non)statement. Some lies are plainly illegal, for instance saying in the context of a sale that &quot;this column is made of pressure-treated lumber&quot; when in fact it is make of sand and Elmer's glue is fraud. A receptionist being told to say &quot;Mr. Smith is at a conference in New York&quot; when he is actually drunk in Chicago is a legal lie. Now the question is, who can refuse to tell this lie (without suffering employment consequences), and on what grounds?</p>


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<p>Generally, in the US you can be ordered to tell such a legal lie as part of your employment duties. If I refuse, I can be fired. If you refuse, you can request a reasonable accommodation under Title VII of the Civil Rights Act of 1964, since you proffer that your religion requires you to tell the truth / forbids you from telling a falsehood. If you make a claim for a religious accommodation, then the issue becomes whether there is a reasonable alternative. Such an accommodation might be that you instead say &quot;Mr. Smith is not available&quot;; or perhaps someone else who does not have a religious objection will be forced to act as receptionist for the day.</p>


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<p>This is specifically about religion. &quot;I don't want to&quot; or any similar idea does not provide protection against being fired. However, bear in mind that there is no official list of approved religions and their beliefs which the courts will refer to in determining whether your refusal was protected. If you claim &quot;As a Pastafarian, I can't lie&quot;, the courts will not accept the premise that declaring yourself to be Pastafarian (a parody &quot;religion&quot;) is valid. The available governmental resources on the fine line between general moral code and religious beliefs are quite sparse.</p>


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Answer 2: <h2>Not usually</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>You may only be dismissed in Australia for <a href="https://business.vic.gov.au/business-information/staff-and-hr/ending-employment/dismiss-staff-properly" rel="noreferrer">fair</a> reason. These are:</p>
<blockquote>
<ul>
<li>poor performance</li>
<li>misconduct</li>
<li>dangerous behaviour</li>
<li>refusing to follow instructions</li>
<li>no further need for the position (redundancy or retrenchment)</li>
</ul>
</blockquote>
<p>Refusing to do as you are told would fall under “refusing to follow instructions”. However, an “instruction” must be both lawful and reasonable. Depending on the lie, it might not be lawful or reasonable. If so, you can’t be fired at all.</p>


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<p>If it is a lawful and reasonable instruction then there are not grounds to instantly fire someone.</p>
<p>Even when you have a reason, except for gross misconduct, you can’t dismiss an employee unless and until they have been given a fair hearing to explain themselves and have been given the opportunity to “mend their ways”. Even for gross misconduct, they still must be given an opportunity to justify their conduct.</p>


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Answer 3: <p>You can be fired for anything, or nothing at all. Whether the reasons stated would hold up in court when challenged is another matter entirely. And a company wanting to force their employees to lie as part of their job isn't going to have any problems with having their HR department lie about the reason you were being fired. They'll just make something up that sounds believable enough to a judge that the judge will go along with it.</p>
<p>And even if not, going back to a job after such an experience isn't a good idea so you'd still be out of a job (though the court might order them to pay you a decent sum as a severance).</p>


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<p>And even if not, going back to a job after such an experience isn't a good idea so you'd still be out of a job (though the court might order them to pay you a decent sum as a severance).</p>
<p>I've experienced something similar (though this wasn't about being told to tell lies) myself. Company wanted to fire me for medical reasons, which is illegal. So they made up an excuse that I &quot;had not met my contractual targets&quot; (while I was on sick leave), despite no such targets ever having been defined, and despite me being unable to reach any targets because I was on medical leave, WITH their own medical evaluation team agreeing I was unable to work.
They decided to not risk a court proceeding when I threatened to sue and instead consented with paying me a good severance package.</p>


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Answer 4: <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>In some circumstances, a whistleblower, fired for revealing illegal practices or unsafe working conditions, could have grounds for a wrongful-termination suit.  One such law is section 11(c) of the Occupational Health and Safety Act (OHSA).  A lawyer could actually face discipline under their bar association for making material, false statements in the scope of their representation of a client, or knowingly allowing their advice to be used to commit a crime or fraud, although they are then supposed to withdraw from representing that client..</p>


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<p>However, you are most likely thinking of a case in the news recently (February 2023), in which a teacher claims that she considers the school district policy, requiring her to say something to students that she doesn’t agree with, which she calls a “lie” (even though there is no statement of fact involved, and even though she’s already allowed not to say anything on that subject) and says is against her religion.</p>


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<p>In other contexts, teachers clearly can get fired for teaching their own personal religious beliefs instead of the approved curriculum, or for refusing to teach a required topic at all. Teachers’ religious liberty does not, under current precedent, give them a right to teach Creationism in biology class, the Book of Mormon in history class, or that the world’s social problems are all caused by the internal contradictions of late Capitalism. In practice, though, teachers  who didn’t agree with one part of the curriculum they were given more often get out of it passive-aggressively: they skip over it, or put it last on the syllabus and run out of time for it.</p>
<p>Almost no one would actually want a broad legal doctrine that no one can be fired for refusing to say what they consider “a lie,” and what narrower one a sympathetic judge might create is a matter of speculation.</p>


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Question Body: <p>This is specifically referring to the circumstance where a lawyer knows for a fact that their client is guilty through whatever means, and the client is pleading not guilty.</p>
<p>So I have often heard that a lawyers justification for representing a client that they know is guilty by ensuring the trial is fair, but the only way a trial can be fair for a known guilty party is if that person is convicted of a crime, no?</p>


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<p>I fully understand the right of everyone to have a fair trial and adequate representation.  I also understand that even if found guilty the person should be protected from unfair convictions/punishments.   However in the event that the lawyer knows the client is guilty, and by some set of circumstances through the trial the client is found not guilty, wouldn't that be just as immoral as an unfair trial?  Is this sort of circumstance justified in some written/legal way?  Lawyers obviously have an obligation to ensure a fair process, but do they have no obligation for justice?</p>
<p>Also if allowed I would be interested to hear if the laws on this vary from country to country.</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>
<h3>A person is deemed to not be guilty unless convicted</h3>
<p>In Canada, by s. 6 of the <em>Criminal Code</em>, &quot;a person shall be deemed to not be guilty of the offence until he is convicted.&quot; This is also bolstered by s. 11(d) of the <em>Canadian Charter of Rights and Freedoms</em> which guarantees the right &quot;to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.&quot;</p>
<h3>There is always a chance that the tier of fact is not convinced beyond a reasonable doubt</h3>


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<h3>There is always a chance that the tier of fact is not convinced beyond a reasonable doubt</h3>
<p>The accused (and therefore their lawyer) cannot be sure that the evidence will leave the trier of fact (judge or jury) with no reasonable doubt that the accused committed the crime. Thus, the accused and their lawyer can only &quot;know&quot; the accused is guilty in the colloquial sense (in that they did the things that could be found to be a crime). However, they cannot <em>know</em> that they will be guilty in law. There is always a chance that the trier of fact is not convinced.</p>
<p>Ways that the Crown's case can fall apart at trial:</p>
<ul>
<li>what appeared to be convincing to the parties just isn't convincing to the trier of fact</li>
<li>a key witness or evidence becomes unavailable</li>
<li>it turns out critical evidence was obtained contrary to constitutional principles</li>
<li>a key witness's credibility or reliability crumbles on cross examination</li>


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<li>it turns out critical evidence was obtained contrary to constitutional principles</li>
<li>a key witness's credibility or reliability crumbles on cross examination</li>
<li>the prosecution is complacent in diligently moving the trial forward and the trial drags on to the point that a stay of proceedings is warranted (e.g. in jurisdictions with strict rights to timely trials)</li>
</ul>
<h3>The interest in truth-seeking is not the only component of a fair trial</h3>


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</ul>
<h3>The interest in truth-seeking is not the only component of a fair trial</h3>
<p>Fair trials should seek the truth, but they should also be timely (<a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16057/index.do" rel="nofollow noreferrer"><em>Jordan</em></a>), and they should also not rely on evidence obtained contrary to the <em>Charter</em> (<a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7799/index.do" rel="nofollow noreferrer"><em>Grant</em></a>). Fair trials are not only about securing convictions when a person did the things that could constitute an offence if proven.</p>
<blockquote>


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<blockquote>
<p>At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.</p>
<p><em>R. v. Harrer</em>, <a href="https://canlii.ca/t/1frhf#par45" rel="nofollow noreferrer">[1995] 3 SCR 562, at para 45</a></p>
</blockquote>
<h3>The lawyer's duty</h3>
<p><a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1934/49.html" rel="nofollow noreferrer"><em>Tuckiar v. R</em> [1934] HCA 49</a>:</p>
<blockquote>


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<p>He had a plain duty, both to his client and to the Court, to press such rational considerations as the evidence fairly gave rise to in favour of complete acquittal or conviction of manslaughter only. No doubt he was satisfied that through [an interpreter] he obtained the uncoloured product of his client's mind, although misgiving on this point would have been pardonable; but, even if the result was that the correctness of [another witness]'s version was conceded, it was by no means a hopeless contention of fact that the homicide should be found to amount only to manslaughter. <strong>Whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted.</strong> The subsequent action of the prisoner's counsel in openly disclosing


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abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted.</strong> The subsequent action of the prisoner's counsel in openly disclosing the privileged communication of his client and acknowledging the correctness of the more serious testimony against him is wholly indefensible. It was his paramount duty to respect the privilege attaching to the communication made to him as counsel, a duty the obligation of which was by no means weakened by the character of his client, or the moment at which he chose to make the disclosure. No doubt he was actuated by a desire to remove any imputation on Constable McColl. But he was not entitled to divulge what he had learnt from the prisoner as his counsel. Our system of administering justice necessarily imposes upon those who practice advocacy duties which have no analogies, and the system cannot dispense with their strict observance.</p>


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</blockquote>
<p>A laywer's obligation is to put forward on behalf of their client their best efforts. Whether they &quot;know&quot; their client is guilty of the offence charged or not, to do otherwise amounts to a dereliction of duty and weakens the protections afforded all of us who believe in the rule of law: Arthur Maloney, Q.C., &quot;The Role of the Lawyer in Society&quot; (1979) <a href="https://www.canlii.org/en/commentary/doc/1979CanLIIDocs139" rel="nofollow noreferrer">9 Manitoba Law Journal 351</a>.</p>


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Question Title: What powers do the police have to stop a car in Oklahoma?

Question Body: <p>Can a police officer in Oklahoma pull you over because they think your ID is suspended, despite not committing any traffic violations? Also is it lawful for the officer to write a police report before arresting a suspect in this situation?</p>


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Answer 1: <h2>Stop: possibly</h2>
<p>The standard for initiating a traffic stop is named after Terry v. Ohio, 392 U.S. 1 (1968): <a href="https://en.wikipedia.org/wiki/Terry_stop" rel="nofollow noreferrer">Terry stop</a>. The standard is rather simple: Initiating the stop only requires <strong><a href="https://en.wikipedia.org/wiki/Reasonable_suspicion" rel="nofollow noreferrer">reasonable suspicion</a></strong>.</p>
<p>If their computer claims that the driver's license of the car owner is expired or suspended, that is reasonable suspicion to at least stop the car to check if the owner is driving it and if the license really is expired.</p>
<h2>Arrest: possibly</h2>


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<h2>Arrest: possibly</h2>
<p>To facilitate an arrest, the next level of scrutiny is needed: <strong><a href="https://en.wikipedia.org/wiki/Probable_cause" rel="nofollow noreferrer">probable cause</a></strong>. Generally, there is little requirement on when a police report is to be written, but contemporary reports (at the same time or close to) are typical.</p>
<h2>Example of rising through the ranks</h2>
<p>Alice, 16 years old, dent in the fender from a fenderbender. That is not even a warning's worth and does not rise reasonable suspicion.</p>


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<h2>Example of rising through the ranks</h2>
<p>Alice, 16 years old, dent in the fender from a fenderbender. That is not even a warning's worth and does not rise reasonable suspicion.</p>
<p>Bob cop's computer still reads the license plate and Bob gets a flashing light: the car owner's license is expired. That is reasonable suspicion that there is an offense if the owner and Alice are the same person. But Bob needs to verify that. The reasonable suspicion can go away if for example the car was owned by Charles, a 60-year-old gentleman, then the suspicion that Alice's license is expired goes away. But the stop in itself was reasonable!</p>


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<p>Bob starts the ticket after stopping Alice, then passes the car to get to Alice. Looking in he sees that behind Alice lies a box stamped &quot;Top Secret - US President's Eyes Only&quot; all over. Bob arrests Alice for the probable cause of possibly possessing those documents illegally. The documents were in plain sight, so no search was needed btw.</p>


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Question Body: <p>Bob wins an auction for an uncommon item for £100. The seller fails to take payment or deliver the goods. There weren't that many other equivalent items available online at the moment.</p>
<p>Bob's purchase was used, but very lightly and in nearly new condition. All of the other items currently available online are either of a different model/size, or come without certain components included in the price, or are in significantly more dilapidated condition, or all of the above, and are in any event selling for at least £250 and up.</p>
<p>New units of this product retail for £450.</p>
<p>Expectation damages are supposed to put a claimant in the same position they would be in as if the contract had been performed. But if this is not possible in the current market climate, then is it fair to claim for a new unit at the price sold at by the manufacturer? This puts Bob in a <em>better</em> position then he would have had if the contract had been completed.</p>


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<p>Suppose the defendant defends the claim and instead of paying Bob the price of a new one proposes to the court to simply fulfill the original contract by selling Bob their used one at the original price and pay Bob's legal costs.</p>
<p>Is this still open to the seller?</p>
<p>Finally, is the original contract price of £100 that Bob would have paid for the used unit to be subtracted from the calculation of expectation damages?</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>As a starting point, courts are likely to view the market value of the contract (e.g. £100) as the floor for expectation damages, but it is open to Bob to prove higher expectation damages by demonstrating the cost of obtaining a sufficiently similar alternative, while reasonably attempting to mitigate damages.</p>
<p>See <em>Chaplin v. Hicks</em> [1911] 2 K.B. 786, quoted with approval in 2002 BCCA 2017:</p>
<blockquote>


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<p>See <em>Chaplin v. Hicks</em> [1911] 2 K.B. 786, quoted with approval in 2002 BCCA 2017:</p>
<blockquote>
<p>In the case of a breach of a contract for the delivery of goods the damages are usually supplied by the fact of there being a market in which <strong>similar goods</strong> can be immediately bought, and the difference between the contract price and the price given for the substituted goods in the open market is the measure of damages; that rule has been always recognized.</p>
</blockquote>
<p>Expectation damages in such a circumstance is a question of fact, left to the trier of fact (judge or jury) and is assessed based on what they view a reasonable person to have done. If obtaining a device with slightly different properties allowed Bob to get a substitute for £250 that might be considered reasonable mitigation when considered alongside the alternative of buying a completely new identical item for £450.</p>


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<p>Bob doesn't actually have to take the mitigating steps in buying an alternative. This can all be argued in the hypothetical (i.e. what <em>would</em> put Bob in the position expected by performance of the contract). But damages will be limited to the costs Bob would have incurred, while reasonably mitigating the costs, in placing himself in the same position had the contract been performed.</p>


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Question Title: gdpr: classification of a psychiatric report

Question Body: <p>I'm following a job-related course regarding data protection and the GDPR (European Union, I'm located in Italy). My background is not in law.</p>
<p>I was puzzled whether a psychiatric report (&quot;perizia psichiatrica&quot;, a document with legal purposes) falls in the sensitive data category. The course says it does not [edit: I double-checked, and the question was intentionally unclear, so probably that was the reason of the confusion], but I also read that &quot;Health data&quot; is indeed sensitive (<a href="https://www.gdpreu.org/the-regulation/key-concepts/special-categories-personal-data/" rel="nofollow noreferrer">https://www.gdpreu.org/the-regulation/key-concepts/special-categories-personal-data/</a>).</p>
<p>What is the reason behind this apparent paradox?</p>


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Answer 1: <h2>Its special personal information</h2>
<p><em>The <a href="https://gdpr-info.eu/art-9-gdpr/" rel="noreferrer">GDPR</a> uses “special” not “sensitive”.</em></p>
<blockquote>
<p>Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, <strong>data concerning health</strong> or data concerning a natural person’s sex life or sexual orientation shall be prohibited.</p>
</blockquote>


Tags: gdpr


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Question Title: How is &#39;National Amusements&#39; allowed to own Paramount Global? As well as CBS, etc.? In light of U.S. v. Paramount?

Question Body: <p>I know that 1948 was a long time ago, and that antitrust decisions/regulations/etc. seem to weaken over time, but....</p>
<p>The Paramount Global CBS Viacom Whatever conglomerate, majority-owned by National Amusements, Inc., is a company that integrates production of TV shows and movies with distribution of those shows and movies.....</p>
<p>In light of the ongoing writers' strike, should these conglomerates be broken up again?</p>


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


Tags: business, us-supreme-court, antitrust-law, entertainment-law


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Question Title: How to get official confirmation if anyone has filled a police complaint against me or not

Question Body: <p>My wife has alleged that she made a police complaint against me in Germany for a false domestic violence case. Is there a way to find out if any complaint has truly been filed against me or not if I don't live in Germany anymore?</p>


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Answer 1: <p>You can query the <a href="https://de.wikipedia.org/wiki/Zentrales_Staatsanwaltschaftliches_Verfahrensregister#Auskunft" rel="nofollow noreferrer">Zentrales Staatsanwaltliches Verfahrensregister</a> regarding your own cases once they reach that level. I'm not sure how this works out if you are no longer in Germany, since you would have to prove that you are yourself. As I understand <a href="https://www.bfdi.bund.de/DE/Buerger/Inhalte/Polizei-Strafjustiz/National/Dateien-Justizbehoerden.html" rel="nofollow noreferrer">this site</a>, they expect you to send a postal letter rather than a mail.</p>
<p>There is no guarantee of getting a complete answer. Investigations may be tagged as 'secret' to avoid warning the criminals. That would usually not be the case in a domestic violence investigation, but it is more common in organized crime cases and the like.</p>


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Answer 2: <p>You can ask for a “Selbstauskunft”. I have no idea how you would get one, and what it costs, but the police would know. That would contain <em>everything</em> the police has on file about you (only you yourself would be able to get that information, everyone else would get something redacted).</p>
<p>If your wife’s complaint was serious enough to be written down it would be there. If she went to a police station, made a complaint, but let it slip to the officer that the complaint is false and only made to get you into trouble, then it might not ever have been recorded. That means legally the complaint doesn’t exist.</p>


Tags: criminal-law, germany, human-rights


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Question Body: <p>A common brand of commercial refrigerators used in stores in my country all have the following sticker on them (emphasis mine):</p>
<blockquote>
<h2>Trademark Infringement</h2>
<p>The [Brand Name] trademark on this product is infringed if the owner, for
the time being, does any of the following:</p>
<ul>
<li>Applies the trade mark to the product after its state, condition, get-up or packaging has been altered in any manner</li>
<li>Alters, <strong>removes</strong> (including part removal) or obliterates (including part obliteration) the trade mark on the product</li>
<li>Applies any other trade mark to the product</li>
<li>Adds to the product any written material that is likely to damage the reputation of the trade mark</li>
</ul>
<p>Notice of the above contractual obligations passes to:</p>
<ul>
<li>Successors or assignees of the buyer</li>
<li>Future owners of the product</li>
</ul>
</blockquote>


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</ul>
<p>Notice of the above contractual obligations passes to:</p>
<ul>
<li>Successors or assignees of the buyer</li>
<li>Future owners of the product</li>
</ul>
</blockquote>
<p>So they're claiming that removing their branding form one of their products would constitute  trademark infringement. Is there any legal basis for this claim (or any of the others)? How could buying one of their units and removing all of their branding from it infringe their trademark?</p>


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Answer 1: <h2>It’s mostly crap</h2>
<p><a href="https://www.lexology.com/library/detail.aspx?g=0fb17a61-84c4-4b47-b2c9-f8794eca695a" rel="nofollow noreferrer">Trademarks</a> in <a href="/questions/tagged/new-zealand" class="post-tag" title="show questions tagged &#39;new-zealand&#39;" aria-label="show questions tagged &#39;new-zealand&#39;" rel="tag" aria-labelledby="tag-new-zealand-tooltip-container">new-zealand</a> do what they do everywhere else: prevent other people from using your trademark to identify their goods or services.</p>
<blockquote>
<p>Applies the trade mark to the product after its state, condition, get-up or packaging has been altered in any manner</p>
</blockquote>
<p>It’s still their product so using their trademark to identify it is legal. Even if the change is substantial - consider the Intel Inside trademark for chips inside computers.</p>
<blockquote>


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<p>It’s still their product so using their trademark to identify it is legal. Even if the change is substantial - consider the Intel Inside trademark for chips inside computers.</p>
<blockquote>
<p>Alters, removes (including part removal) or obliterates (including part obliteration) the trade mark on the product</p>
</blockquote>
<p>Nope - your fridge, do what you like with it.</p>
<blockquote>
<p>Applies any other trade mark to the product</p>
</blockquote>
<p>This one depends. If you do it in such a way that it could confuse a reasonable person that the fridge is the product of the other trademark, that’s a violation. But if you stick AC/DC stickers to your fridge, it isn’t.</p>
<blockquote>
<p>Adds to the product any written material that is likely to damage the reputation of the trade mark.</p>
</blockquote>
<p>Like writing “sux” or “produces crap fridges” after their brand name? Nope, that’s just freedom of speech - or criminal damage if you don’t own the fridge.</p>


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</blockquote>
<p>Like writing “sux” or “produces crap fridges” after their brand name? Nope, that’s just freedom of speech - or criminal damage if you don’t own the fridge.</p>
<p>Now, any or all of these obligations could be made terms of the contract when you buy the product but breaching them would be a contract law matter, not a trademark law matter. In any event, terms on a sticker inside a box are not part of the contract unless it can be proved that you were made aware of and agreed to them.</p>
<p>Even if you agreed, it would only apply to successors, assignees, or future owners if <em>they</em> agreed. As written, you have no obligation to ask them to agree when the fridge moves on.</p>


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Question Title: Claiming against eBay sellers: mechanics and practicality

Question Body: <p>It seems clear that in principle eBay sellers are subject to either the consumer rights or sale of goods act respectively, depending on whether the seller is a company or individual.</p>
<p>But how does one claim against just the user name? I doubt that eBay would willingly be so cooperative, so is it purely a matter of filing a legal claim, perhaps performing pre action protocol or even serving claim form by eBay messages and then probably seeking an ex parts or default judgment if they don't engage and then ultimately asking the court to compel eBay to disclose the user's name and address?</p>


Answer 1: <h2>You subpoena eBay</h2>
<p>You file your claim against username. You then subpoena eBay to provide all relevant information about username (name, address etc.). You then update your filing.</p>
<p>Of course, you have to complete any dispute resolution clauses that may exist first.</p>


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Question Body: <p>Breach of contract between eBay users</p>
<p>Bob bids on an item on eBay. He wins the auction. The seller, perhaps disappointed at the price the item had fetched, promptly&quot;cancels the order&quot; on spurious grounds of &quot;issues with the buyer's delivery address&quot;, when the auction was for collection from the seller's address by the buyer. The seller immediately relists the item with identical description and a rare enough item as it is with a higher starting price, thus breaking the contract. Bob hadn't yet had a chance to pay for the item before the seller cancelled it so there is no question of seeking a refund but does the contract of winning the auction not bind the seller as well as the buyer? Bob hadn't paid so have lost any money but he stole wants the item he won. How can he compel the seller to cancel the new auction and sell him the item as they contracted to do?</p>


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<p>Related: <a href="https://law.stackexchange.com/questions/92528/lost-merchandise-replacement-or-refund">Lost merchandise: Replacement or refund</a></p>


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Answer 1: <blockquote>
<p>How can he compel the seller to cancel the new auction and sell him the item as they contracted to do?</p>
</blockquote>
<h3>Expectation damages are the typical remedy for breach of contract</h3>
<p>The general measure of damages for breach of contract is <em>expectation damages</em>: &quot;the plaintiff will be entitled to the value of the promised performance&quot; (<em>Bank of America Canada v. Mutual Trust Co.</em>, <a href="https://canlii.ca/t/51s8#par26" rel="nofollow noreferrer">2002 SCC 43 at paragraph 26</a>); &quot;the purpose of expectation damages is to put the plaintiff in the same position it would have been <em>if the contract had been performed</em> (<em>Grandeur Homes Inc. v. Zeng</em>, <a href="https://canlii.ca/t/jgdx0#par19" rel="nofollow noreferrer">2021 ONSC 4005 at paragraph 19</a>).</p>


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<p>This is a general principle of common-law contract law rooted in English jurisprudence. See <em>Robinson v. Harman</em> (1848) 1 Ex. 850, p. 855:</p>
<blockquote>
<p>The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.</p>
</blockquote>
<p>This was recently confirmed by the U.K. Supreme Court in <em>Morris-Garner v. One Step (Support) Ltd.</em>, [2018] UKSC 20:</p>
<blockquote>
<p>Damage for breach of contract are ... a substitute for performance. That is why they are generally regarded as an adequate remedy. The courts <strong>will not prevent self-interested breaches of contract where the interests of the innocent party can be adequately protected by an award of damages.</strong></p>
</blockquote>
<h3>Specific performance is not usual</h3>


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</blockquote>
<h3>Specific performance is not usual</h3>
<p>Specific performance (cancelling the new auction and forcing the first sale) is an <em>exceptional</em> remedy for breach of contract. Specific performance is an <a href="https://law.stackexchange.com/questions/85675/what-are-equity-and-equitable-remedies">equitable remedy</a>. As an equitable remedy, it is always discretionary; the wronged party does not have a right to specific performance.</p>
<p>Specific performance may be ordered when:</p>
<ul>
<li>expectation damages are inadequate as a remedy</li>
<li>where the contract was for a sale of a particular piece of land (but even this has been limited in some jurisdictions to circumstances where the property is particularly unique)</li>
<li>difficulty in quantifying damages</li>
</ul>
<p>Specific performance is typically <em>not</em> ordered when a substitute is available by which expectation damages would be demonstrated.</p>


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<li>difficulty in quantifying damages</li>
</ul>
<p>Specific performance is typically <em>not</em> ordered when a substitute is available by which expectation damages would be demonstrated.</p>
<p>See generally <em>Chitty on Contracts</em>, §30-015–30-025.</p>


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Question Title: In which jurisdictions is publishing false statements a codified crime?

Question Body: <p>Whereas publishing false statements can often be a civil wrong (e.g. libel/defamation), I am seeking examples of where it has been criminalised <em>and</em> codified.</p>
<p>Limitations:</p>
<ul>
<li>Reasonably genuinely democratic jurisdictions. Not interested in authoritarian/dictatorship states where &quot;fake news&quot; or &quot;discrediting&quot; crimes exist</li>
<li>&quot;Publishing&quot; excludes perjury, fraud, hate speech, false police reporting etc.</li>
</ul>


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Answer 1: <p>Several countries have <a href="https://en.wikipedia.org/wiki/Legality_of_Holocaust_denial" rel="noreferrer">laws against Holocaust denial</a>. Such laws typically punish people who seriously minimise the scale of Nazi crimes, or entirely deny that generally accepted <a href="https://en.wikipedia.org/wiki/The_Holocaust" rel="noreferrer">Nazi atrocities</a> took place. The Wikipedia page lists several examples.</p>
<p>In Austria, National Socialism Prohibition Law (1947, amendments of 1992) section 3h criminalizes &quot;whoever denies, grossly plays down, approves or tries to excuse the National Socialist genocide or other National Socialist crimes against humanity in a print publication, in broadcast or other media.&quot;</p>


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<p>Belgium also has a 1995 law against those who &quot;grossly minimise, attempts to justify, or approves the genocide committed by the German National Socialist Regime during the Second World War&quot;, punishable by &quot;a prison sentence of eight days to one year, and by a fine of twenty six francs to five thousand francs&quot;.</p>
<p>In Czechia it is forbidden not only to deny Nazi genocide and crimes against humanity, but also similar crimes by Communist regimes (presumably primarily aimed at the Communist rulers in Czechoslovakia, the Soviet Union, and elsewhere in Eastern Europe). The Law Against Support and Dissemination of Movements Oppressing Human Rights and Freedoms (2001) § 405 says &quot;Anyone who publicly denies, disputes, approves or attempts to justify a Nazi, Communist or other genocide or Nazi, Communist or other crimes against humanity or war crimes or crimes against peace will be punished by imprisonment for six months to three years&quot;.</p>


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Answer 2: <p>To clarify the answer regarding the U.S.:</p>
<p>There is no Federal level statute for criminal defamation in the U.S.  However, there are statutory laws in the U.S. that criminalize defamation in 23 states, a case law in Iowa, and a constitutional grant for criminal defamation in South Dakota (25 states with a law in some form). That said, most states restrict criminal defimation very narrowly.</p>
<p>In addition, it's a very rare crime to see prosecuted, let alone successfully.  Between 1992 and 2004, only 41 charges were made, of which only 6 resulted in a conviction.   Between 1965 and 2004 (39 years), there were only 16 successful convictions.  Almost all sentences for convictions seem to indicate that the crime is a misdemeanor, with jail time averaging 173 days for those that serve jail time at all (misdemeanors in most states are 12 months for a single offence at the maximum) with fines, probation, and community service among the sentences for the charge.</p>


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Answer 3: <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, the <a href="https://www.legislation.gov.uk/ukpga/2003/21/section/127" rel="noreferrer">Communications Act 2003</a> makes it illegal to lie over the internet in order to annoy someone.</p>
<blockquote>
<p>(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—</p>
<p>(a) sends by means of a public electronic communications network, a message that he knows to be false,</p>
</blockquote>
<p>But in this case the intent to annoy is a necessary element along with the known falsehood. It's not generally illegal to lie simply to mislead people.</p>


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Answer 4: <p>Many <a href="https://www.aclu.org/issues/free-speech/map-states-criminal-laws-against-defamation" rel="noreferrer">jurisdictions in the United States</a> make it a crime to defame someone.</p>


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Answer 5: <p><a href="/questions/tagged/new-zealand" class="post-tag" title="show questions tagged &#39;new-zealand&#39;" aria-label="show questions tagged &#39;new-zealand&#39;" rel="tag" aria-labelledby="tag-new-zealand-tooltip-container">new-zealand</a> <a href="/questions/tagged/contempt-of-court" class="post-tag" title="show questions tagged &#39;contempt-of-court&#39;" aria-label="show questions tagged &#39;contempt-of-court&#39;" rel="tag" aria-labelledby="tag-contempt-of-court-tooltip-container">contempt-of-court</a></p>
<p>A few years ago New Zealand lawmakers overhauled the law of <a href="https://en.wikipedia.org/wiki/Contempt_of_court" rel="noreferrer">contempt of court</a>. On the one hand, they abolished a whole lot of common law contempt offences (<a href="https://www.legislation.govt.nz/act/public/2019/0044/latest/LMS24757.html" rel="noreferrer">s 3(3)(a)</a>):</p>
<blockquote>
<p>(i) contempt in the face of the court; and</p>


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<blockquote>
<p>(i) contempt in the face of the court; and</p>
<p>(ii) publishing information that interferes with a fair trial; and</p>
<p>(iii) jurors researching information relevant to the trial; and</p>
<p>(iv) disclosing juror deliberations; and</p>
<p>(v) disobeying court orders; and</p>
<p>(vi) scandalising the court</p>
</blockquote>
<p>On the other hand, they introduced a new criminal offence of publishing false statements about judges (<a href="https://www.legislation.govt.nz/act/public/2019/0044/latest/LMS238628.html" rel="noreferrer">s 22</a>):</p>
<blockquote>
<p>(1) A person commits an offence if—</p>
<p>(a) the person publishes a false statement about a Judge or court; and</p>
<p>(b) the person knew or ought reasonably to have known that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary or a court; and</p>


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<p>(c) there is a real risk that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary or a court.</p>
</blockquote>


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Answer 6: <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>Until 2021, Canada's <em>Criminal Code</em> contained s. 181, which made it an offence to spread false news.</p>
<blockquote>
<p>Every one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.</p>
</blockquote>


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</blockquote>
<p>It was ruled unconstitutional in 1992 (<a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/904/index.do" rel="nofollow noreferrer"><em>R. v. Zundel</em>, [1992] 2 SCR 731</a>), but that did not remove it from the statute books. It was removed in 2021 in a clean-up bill along with many other &quot;zombie&quot; laws. See this <a href="https://www.justice.gc.ca/eng/csj-sjc/pl/cuol-mgnl/qa-qr.html" rel="nofollow noreferrer">explainer</a> about the Bill.</p>


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Answer 7: <p>In Finland, the crime of defamation is covered by the Criminal law. <a href="https://www.finlex.fi/fi/laki/ajantasa/1889/18890039001#L24" rel="nofollow noreferrer">Rikoslaki, chapter 24, §9 and §10</a> (Translation mine)</p>
<blockquote>
<h2>§9 Defamation</h2>
<p>Whoever</p>
<ol>
<li>Presents or insinuates false information of another, in a manner likely to cause damage or suffering to the injured party, or disdain towards them, or</li>
<li>In a manner other than part 1 defames another</li>
</ol>
<p>Is to be sentenced to a fine for defamation.</p>
<p>[...]</p>
<h2>§10 Aggravated Defamation</h2>
<p>If defamation as per part 1 of §9 causes great suffering or injury, and the crime is also otherwise aggravated, the criminal must be sentenced to a fine or no more than two years of imprisonment for aggravated defamation.</p>
</blockquote>


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</blockquote>
<p>In fact, §8 criminalizes publishing <em>true</em> statements regarding a person's private life. I have read news stories that mention that the police has an ongoing investigation for defamation or violation of privacy.</p>


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Question Title: Is there a legal reason that organizations often refuse to comment on an issue citing &quot;ongoing litigation&quot;?


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Question Body: <p>In news articles, I often read that some organization refused to comment on an issue because it is the <strong>subject of &quot;ongoing litigation&quot;</strong>. This is also mentioned in many guides on public relations, for example this article, <a href="https://www.pushkinpr.com/blog/how-control-your-message-during-media-interview/" rel="noreferrer">How to Control Your Message During a Media Interview</a>, says:</p>
<blockquote>
<p>If there are legal reasons why you can’t respond,  explain that you
are unable to answer the question because it involves ongoing
litigation or personal information about a patient.</p>
</blockquote>
<p>But what is that legal reason? Why would an organization not be able to state their position with respect to the issue, such as &quot;We believe we acted correctly, but this will be decided in court&quot;?</p>


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<p>Is there a law saying that commenting a court case is illegal? Who does this apply to? Or is this just some guideline or established advice to avoid problems (which ones)?</p>
<hr />
<p>I'm most interested in answers about the US or Germany, but other jurisdictions are fine.</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>
<blockquote>
<p>But what is that legal reason? Why would an organization not be able
to state their position with respect to the issue, such as &quot;We believe
we acted correctly, but this will be decided in court&quot;?</p>
<p>Is there a law saying that commenting a court case is illegal? Who
does this apply to? Or is this just some guideline or established
advice to avoid problems (which ones)?</p>
</blockquote>
<p><strong>Legal Ethics Considerations</strong></p>


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does this apply to? Or is this just some guideline or established
advice to avoid problems (which ones)?</p>
</blockquote>
<p><strong>Legal Ethics Considerations</strong></p>
<p>There are circumstances when commenting publicly on litigation violates the ethical rules for lawyers related to trial publicity <em>See</em> Rule of Professional Conduct 3.6 (the numbering system for professional conduct rules for lawyers is uniform nationally in the U.S. although the substance of the rules can differ in detail from state to state - <a href="https://www.cobar.org/For-Members/Opinions-Rules-Statutes/Rules-of-Professional-Conduct/Rule-36-Trial-Publicity" rel="nofollow noreferrer">Colorado's rule</a> is fairly typical). Mostly this rule calls for avoiding statements that could prejudice a jury unless the other side has already done so and those statements need to be rebutted. This rule states (in its Colorado version):</p>
<blockquote>


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<blockquote>
<p>(a) A lawyer who is participating or has participated in the
investigation or litigation of a matter shall not make an
extrajudicial statement that the lawyer knows or reasonably should
know will be disseminated by means of public communication and will
have a substantial likelihood of materially prejudicing an
adjudicative proceeding in the matter.</p>
<p>(b) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may state:</p>
<p>(1) the claim, offense or defense involved and, except when prohibited
by law, the identity of the persons involved;</p>
<p>(2) information contained in a public record;</p>
<p>(3) that an investigation of a matter is in progress;</p>
<p>(4) the scheduling or result of any step in litigation;</p>
<p>(5) a request for assistance in obtaining evidence and information
necessary thereto;</p>
<p>(6) a warning of danger concerning the behavior of a person involved,
when there is reason to believe that there exists the likelihood of


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necessary thereto;</p>
<p>(6) a warning of danger concerning the behavior of a person involved,
when there is reason to believe that there exists the likelihood of
substantial harm to an individual or to the public interest; and</p>
<p>(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the
accused; (ii) if the accused has not been apprehended, information
necessary to aid in apprehension of that person;(iii) the fact, time
and place of arrest; and (iv) the identity of investigating and
arresting officers or agencies and the length of the investigation.</p>
<p>(c) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may make a
statement that a reasonable lawyer would believe is required to
protect a client from the substantial undue prejudicial effect of
recent publicity not initiated by the lawyer or the lawyer's client. A
statement made pursuant to this paragraph shall be limited to such


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recent publicity not initiated by the lawyer or the lawyer's client. A
statement made pursuant to this paragraph shall be limited to such
information as is necessary to mitigate the recent adverse publicity.</p>
<p>(d) No lawyer associated in a firm or government agency with a lawyer
subject to paragraph (a) shall make a statement prohibited by
paragraph (a).</p>
</blockquote>
<p>Statements such as &quot;We believe we acted correctly, but this will be decided in court&quot; are allowed and are not terribly uncommon. But, making a comment about something that can be easily inferred from the publicly available documents filed in court provides little or no positive advantage for a litigant.</p>


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<p>Also, one doesn't have to say much to create at least a colorable Rule of Professional Conduct 3.6 issue that a mediator can raise in settlement talks, or that a judge can be forced to analyze. Even if the claim of unethical trial publicity ultimately doesn't hold water, it still muddies the waters and distracts lawyers and litigants from dealing with the substance of the dispute.</p>
<p><strong>The Risk That A Statement Will Be Used Against You</strong></p>
<p>Usually, the main concern is similar to the concern about talking to police: Anything you say can and will be used against you at trial.</p>


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<p>Usually, the main concern is similar to the concern about talking to police: Anything you say can and will be used against you at trial.</p>
<p>For example, this week former President Trump's <a href="https://www.cnn.com/2023/05/31/politics/trump-tape-classified-document-iran-milley/index.html" rel="nofollow noreferrer">public statement about his knowledge of classified documents</a>, which are the subject of an ongoing federal criminal investigation of him, seriously harmed his position legally. (His statement was made quite a while ago in a semi-private forum, but at a time when the possibility of a criminal investigation still should have been on his radar screen.)</p>


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<p>In the civil rape-defamation case against him (as noted, for example, in <a href="https://law.stackexchange.com/a/92362/9517">this Law.SE answer</a>), Trump's decision to continue to speak publicly about matters that were the subject of active litigation against him in an earlier case resulted in an extended statute of limitations and an opportunity to refile the case without having to worry about Presidential immunity from liability for statements he made while in office.</p>
<p>It isn't just former President Trump that does things like this, but his conduct provides good textbook examples of what lawyers worry about when their clients talk about cases that are being litigated.</p>
<p>Social media statements about pending cases by litigants <a href="https://www.forbes.com/sites/andrewarnold/2018/12/30/heres-how-social-media-can-be-used-against-you-in-court/?sh=38a9dd946344" rel="nofollow noreferrer">routinely provide powerful evidence against them</a> in trials.</p>


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<p>Some clients (particularly politicians and many senior executives of big and medium sized businesses, but also more ordinary people with big egos) are &quot;forces of nature&quot; who can't resist running their mouths, usually to their detriment, when given the least leave to do so. It is easier to teach them to say &quot;no comment&quot; across the board about pending litigation, than to transmit the depth of understanding necessary to comment without saying something potentially harmful. Lawyers spend many hours and sometimes days preparing their clients for depositions for a reason.</p>
<p><strong>Avoiding Annoyance To Opposing Counsel, Parties, And Judges</strong></p>


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<p><strong>Avoiding Annoyance To Opposing Counsel, Parties, And Judges</strong></p>
<p>Making a comment about pending litigation has the potential to aggravate opposing counsel and can emotionally influence non-lawyer opposing parties with whom a negotiated settlement will be reached 90%+ of the time (only about 1-2% of civil cases go to trial, but some are resolved by default judgments or on motion practice as opposed to by settlement).</p>
<p>It can also irritate a judge who frequently prefers to be out of the public spotlight when necessary, even when the statements made aren't prohibited, and judges in the U.S. have lots of discretionary authority.</p>


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Answer 2: <p><a href="/questions/tagged/common-law" class="post-tag" title="show questions tagged &#39;common-law&#39;" aria-label="show questions tagged &#39;common-law&#39;" rel="tag" aria-labelledby="tag-common-law-tooltip-container">common-law</a></p>
<p>Yes, the legal reason is called <a href="https://en.wikipedia.org/wiki/Sub_judice" rel="noreferrer">sub judice</a>.</p>
<p>The US seems to be less bothered about it due to the First Amendment, but in the rest of the common law world (UK/CA/AU/NZ etc.) publicly commenting about specifics of an ongoing litigation may be <a href="https://en.wikipedia.org/wiki/Contempt_of_court" rel="noreferrer">contempt of court</a>.</p>
<p>The general idea is that the jury may be influenced by what the media says, and that will interfere with a fair hearing/trial. The jury is supposed to make decisions only on what they hear/see in the courtroom.</p>


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<p>Where the case is decided by judges only (i.e. <a href="https://en.wikipedia.org/wiki/Bench_trial" rel="noreferrer">bench</a>/judge-alone trials), in theory it should not be a problem to herald the hell of it in the media because judges are paid for their ability to withstand side influences and make decisions only on what is adduced before them. But people/organizations prefer to err on the side of caution and so see it wise to refuse to comment anyway.</p>


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Answer 3: <h2>It can be a bad idea in <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></h2>
<p>While it is not illegal to speak about the own ongoing litigation, talking about it can be very ill-advised:</p>
<ul>
<li>News articles are usually not admissible as evidence in court (unless to prove a statement <em>was made</em>)</li>
<li>There are no jurors that could be swayed, and Schöffen discuss the whole case with the professional judge(s) when they join them on the bench.</li>


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<li>By claiming a position to the press, which the court deems wrong, an injured party by those statements can sue for various forms of defamation (Beleidigung <a href="https://www.gesetze-im-internet.de/stgb/__185.html" rel="nofollow noreferrer">§185 StGB</a>, Üble Nachrede <a href="https://www.gesetze-im-internet.de/stgb/__186.html" rel="nofollow noreferrer">§186 StGB</a>, Verleumdung <a href="https://www.gesetze-im-internet.de/stgb/__187.html" rel="nofollow noreferrer">§187 StGB</a>, Verleumdung gegen Personen des öffentlichen Lebens <a href="https://www.gesetze-im-internet.de/stgb/__188.html" rel="nofollow noreferrer">§188 StGB</a>, Verunglimpfichung Verstorbener <a href="https://www.gesetze-im-internet.de/stgb/__189.html" rel="nofollow noreferrer">§189 StGB</a>) and is nigh guaranteed to win due to the law on Truth by Judgment under <a href="https://www.gesetze-im-internet.de/stgb/__190.html" rel="nofollow noreferrer">§190 StGB</a>.
<ul>


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<ul>
<li>Example: Alice claims to the press that Bob murdered Charleene. The court finds Bob not guilty. Alice will now be found guilty under <a href="https://www.gesetze-im-internet.de/stgb/__187.html" rel="nofollow noreferrer">§187</a> &amp; <a href="https://www.gesetze-im-internet.de/stgb/__190.html" rel="nofollow noreferrer">§190 StGB</a> - A court's judgment automatically becomes <em>the truth</em>, and if revised or appealed the truth changes accordingly.</li>
<li>Germans are <em>very</em> litigious in this field: the various forms of defamation fill as4% of all German lawsuits filed by private citizens.</li>
</ul>
</li>
</ul>
<h2>In the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a>, Judges are prohibited from talking about ongoing cases on their desk</h2>


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<p>As discussed <a href="https://law.stackexchange.com/questions/36403/why-was-judge-jacksons-ruling-in-doj-vs-microsoft-overturned-in-the-anti-trust-h/55981#55981">here</a> pertaining the successful appeal in United States v. Microsoft Corporation, 253 F.3d 34 (D.C. Cir. 2001) we have a specific point when, a judge talking about a case that is not yet decided and on their desk can lead to a successful appeal of the judgment. The point here is, that judges need to follow the <a href="https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges" rel="nofollow noreferrer">code of judicial conduct</a>, which demands that a judge may not talk about an ongoing case <strong>in any way or fashion</strong>:</p>
<blockquote>


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<blockquote>
<p>(6) <strong>A judge should not make public comment on the merits of a matter pending or impending in any court.</strong> A judge should require similar restraint by court personnel subject to the judge’s direction and control. The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education.</p>
</blockquote>
<h2>Similarly, lawyers in the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a> shouldn't</h2>


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<p>The lawers are similarly bound to their state bar's code of conduct, which often mirror the <a href="https://en.wikipedia.org/wiki/American_Bar_Association_Model_Rules_of_Professional_Conduct" rel="nofollow noreferrer">Model Rules of Professional Conduct</a>. More on that in <a href="https://law.stackexchange.com/a/92855/10334">Ohwilleke's excellent answer</a></p>


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Answer 4: <h2>Can't help, might hurt</h2>
<p>You're just giving ammo to the opposition.</p>
<p>First, they can cite what you said directly, right in court.  If you have anyone public-facing with &quot;foot in mouth disease&quot;, that can set you back badly.  It can also hurt your credibility if the jury perceives those statements as unbelievable or insensitive.   Nobody likes a liar.  Best way to avoid that problem is for those statements <em>to not exist</em>.</p>
<p>Second, in a social media age, it can backfire. If you say &quot;There has never been any methyl amine in the building&quot; <em>inevitably, that will get spread around social media</em>, and it WILL reach the ears of some random guy who did, in fact, special-order methyl amine from you 18 years ago and has the receipts to prove it.  <strong>And now the opposition has something they didn't have before</strong>.</p>


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<p>It also makes it harder to stop (quash) an opponent from exploring an area of interest, if you yourself raised that area of interest in the media.</p>
<p>You're not going to win any hearts and minds with denials.  There's no extreme level of urgency or firmness that makes a denial more believable; if anything, the opposite. So you're better off not bothering. If you're the kind of company that has fans, let the fans fight the good fight in the media for you.</p>


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Answer 5: <p>Even if you are right, court proceedings are still expensive, strenuous, and time-consuming. So, it is common in court cases involving organizations or corporations that they end without a judgement, for example through a settlement agreement between the parties.</p>
<p>Such a settlement agreement often stipulates that neither party was at fault, but it is somewhat hard to reach such an agreement if you have already made public statements claiming the opposite.</p>
<p>As an example why corporations would want to settle, consider the Oracle v. Google case where there <em>wasn't</em> a settlement. It took 12 years, and in the end, Google won, but it won in a manner which didn't actually answer the most important question. So, this was all a giant waste of money and time for all involved parties, including Google, Oracle, and the Supreme Court.</p>


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<p>Oracle wanted to prevent Google from distributing Android, but they lost. Google wanted the courts to decide, once and for all, whether interface descriptions are copyrightable, but the courts side-stepped that question. So, in the end, nobody got what they wanted. And the Supreme Court wasted time trying to wiggle themselves out of the question.</p>


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Question Body: <p>Welcome to the Internet, where people are the worst and want money for nothing:</p>
<p>Alice is a normal citizen of New York with an e-mail address. She receives an E-mail from Bob, a New York State Citizen, in which he claims to have sexually incriminating material collected by tapping into Alice's webcam. Bob demands money via Bitcoin to not share the material with the public. Alice does not own a Webcam so knows that such material doesn't exist, but feels annoyed and informs the police, and does also not pay.</p>
<p>Now, in real life, we know that it is nigh impossible to trace the e-mail back to Bob, but for the exercise, assume that <em>somehow</em> the police manage to identify Bob based on his Bitcoin wallet into which <em>some</em> person they can not identify has paid. Still, they bring it to the prosecution. Bob is found to never had the material they claimed to own for any of the people he sent such mail to.</p>


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<p>New York State Prosecutor Charles wants to bring suit but then pauses: The behavior of Bob appears to be extortion, but does this fit the letter of the law? It is clearly not <a href="https://ypdcrime.com/penal.law/article135.php#p135.60" rel="nofollow noreferrer">NYPC § 135.60</a>, as no physical force is there, but maybe <a href="https://ypdcrime.com/penal.law/article155.php#p155.05" rel="nofollow noreferrer">NYPC § 155.05(2)(e)</a> could work.</p>
<p>So Charles brings the suit under NYPC $ 155.05(2)(e)(v), because he believes that the unidentified person has been acting out of fear to be publically humiliated...</p>
<p>Now, the question is: Is that actually the right section or might the whole case be in the wrong venue (e.g. belonging to federal court as wire fraud)?</p>


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Answer 1: <p>Bob appears to have committed &quot;attempted larceny&quot; by extortion, contrary to <a href="https://www.nysenate.gov/legislation/laws/PEN/155.05" rel="nofollow noreferrer">§ 155.05(2)(e)(v)</a>:</p>
<blockquote>
<p>(e) <strong>By extortion.</strong></p>
<p>A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will:</p>
<p>...</p>
<p>(v) Expose a secret or publicize an asserted fact, whether true or
false, tending to subject some person to hatred, contempt or ridicule;</p>
</blockquote>
<p>See <a href="https://www.nysenate.gov/legislation/laws/PEN/110.00" rel="nofollow noreferrer">§ 110.00</a>:</p>
<blockquote>
<p><strong>Attempt to commit a crime.</strong></p>


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</blockquote>
<p>See <a href="https://www.nysenate.gov/legislation/laws/PEN/110.00" rel="nofollow noreferrer">§ 110.00</a>:</p>
<blockquote>
<p><strong>Attempt to commit a crime.</strong></p>
<p>A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.</p>
</blockquote>
<p>And see <a href="https://www.nysenate.gov/legislation/laws/PEN/110.10" rel="nofollow noreferrer">§ 110.10</a> which covers the &quot;impossibility&quot; that Bob actually had compromising images from Alice's non-existent webcam:</p>
<blockquote>
<p><strong>Attempt to commit a crime; no defense.</strong></p>


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<blockquote>
<p><strong>Attempt to commit a crime; no defense.</strong></p>
<p>If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be.</p>
</blockquote>
<p>(NB Bob's sentence, if found guilty, would depend the value of his attempted extortion)</p>


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Answer 2: <blockquote>
<p>It is clearly not NYPC § 135.60, as no physical force is there,</p>
</blockquote>
<p>Not so.</p>
<p>The facts presented clearly state an offense of attempting to commit the crime of coercion in the third degree which is colloquially called &quot;extortion.&quot;</p>
<p>An attempt crime is committed when &quot;A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.&quot; <a href="https://ypdcrime.com/penal.law/article110.php#p110.00" rel="nofollow noreferrer">NYPC § 110.00</a>.</p>
<p>§ 110.10 Attempt to commit a crime; no defense.</p>
<blockquote>
<p>If the conduct in which a person engages otherwise constitutes an
attempt to commit a crime pursuant to section 110.00, it is no defense
to a prosecution for such attempt that the crime charged to have been
attempted was, under the attendant circumstances, factually or legally


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to a prosecution for such attempt that the crime charged to have been
attempted was, under the attendant circumstances, factually or legally
impossible of commission, if such crime could have been committed had
the attendant circumstances been as such person believed them to be.</p>
</blockquote>
<p>An attempt to commit a misdemeanor is a Class B misdemeanor. <em>See</em> NYPC § 110.05.</p>
<p>The underlying crime attempted which Bob attempted to commit is as follows:</p>
<blockquote>
<p><strong>§ 135.60 Coercion in the third degree.</strong></p>
<p>A  person  is  guilty  of coercion in the second degree when he or she
compels or induces a person to engage in conduct which the latter has
a legal  right to abstain from engaging in, . . .  by  means of
instilling  in him or her a fear that, if the demand is not complied
with, the actor or another will: . . .</p>


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a legal  right to abstain from engaging in, . . .  by  means of
instilling  in him or her a fear that, if the demand is not complied
with, the actor or another will: . . .</p>
<p>5  Expose  a  secret  or  publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt  or
ridicule; or . . .</p>
<p>9  Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially
with respect to  his  or  her  health,  safety,  business,  calling,
career, financial condition, reputation or personal relationships.</p>
<p>Coercion in the second degree is a class A misdemeanor.</p>
</blockquote>
<p>Coercion in the second degree does not require proof of the use of physical force. That is only one of nine possible forms of coercion which can give rise to this offense.</p>


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</blockquote>
<p>Coercion in the second degree does not require proof of the use of physical force. That is only one of nine possible forms of coercion which can give rise to this offense.</p>
<p>Bob attempted to get Alice to transfer Bitcoin by instilling fear in hear that a secret would be revealed or that Bob would take action that would damage Alice's reputation and/or personal relationships. He thought he could successfully instill fear in Alice and get the Bitcoin even though he was bluffing about his ability to carry out his threat. If Alice had paid the Bitcoin he would have been guilty of coercion in the third degree. But, since he failed to cause Alice to act, he is only guilty of attempted coercion in the third degree.</p>
<p>Bob is also be guilty of attempted larceny by extortion as explained <a href="https://law.stackexchange.com/a/93034/9517">by Rick</a>.</p>
<blockquote>
<p>Is that actually the right section or might the whole case be in the


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<blockquote>
<p>Is that actually the right section or might the whole case be in the
wrong venue (e.g. belonging to federal court as wire fraud)?</p>
</blockquote>
<p>In most cases involving fraud both state courts and federal courts have jurisdiction over some crimes that apply to the criminal conduct involved.</p>
<p>The FBI has, for decades, had a policy of not investigating property crimes involving a loss of less than $75,000, not as a matter of law, but as a means of rationing scarce investigatory resources. So, the likelihood that federal prosecutors would pursue this case would depend upon the amount demanded and any other factors that make it particularly attractive (e.g. because it is part of a pattern of offenses by the same person affecting victims in many different states).</p>


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Question Title: A witness (former gov&#39;t agent) knows top secret USA information. Can a court compel them to reveal the informaton?

Question Body: <p>A former US federal government employee knows information that was classified as top secret by the federal government. This information is relevant to a case. They were called to testify before the court. This person is not a defendant.</p>
<p>I believe the 5th amendment would be a valid defense since the witness would be violating the Espionage Act, but claiming the 5th on the witness bench would probably ruin the witness' credibility before the jury. Therefore, we may safely exclude &quot;pleading the 5th&quot; on the answers.</p>
<p>Can a court compel the witness to disclose the information? Is there any lawful recourse for the witness (to keep confidentiality) <strong>other than the 5th amendment</strong>?</p>


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Answer 1: <p>The court should not compel the witness to disclose the information because there is a <a href="https://en.wikipedia.org/wiki/State_secrets_privilege" rel="noreferrer">state secrets privilege</a> which bars disclosure of governmental secrets in litigation.</p>
<p>An interlocutory appeal of some sort would generally be permitted in cases where the privilege is not honored, and typically, the federal government would become an intervenor in the litigation with respect to that issue.</p>
<p>Not infrequently, the state secrets privilege will prevent a matter from being litigated at all, rather than merely preventing the admission of evidence, or requiring that the matter be resolved in a sealed secret bench trial.</p>
<p>For example, spies cannot sue the government for not being paid for spying as a result of the state secrets privilege. Similarly, someone who suffers a personal injury arising from a covert operation can not sue the government for that injury.</p>


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Answer 2: <p>The <a href="https://uscfc.uscourts.gov/sites/default/files/FINAL-Public-Guide-to-Classified-Information.pdf" rel="nofollow noreferrer">US Court Public Guide to Classified Information</a> suggests that if you are a plaintiff you should file a notice when you file the (Federal) case to get the right people assigned. </p>
<p><a href="https://www.law.cornell.edu/uscode/text/18a/compiledact-96-456/section-6" rel="nofollow noreferrer">18a U.S. Code § 6</a> appears to suggest that motions can be filed (by anyone related?) which will activate the necessary machinery where the government will stop any public disclosure of classified information.</p>
<p>Some organizations have more specific guidance to follow pre-appearance, even for seemingly innocuous court appearances.</p>
<p>TL;DR: Don't blurt out classified information in court (or anywhere else) without giving the powers that be a chance to squash that concept like a bug (or they will squash you like a bug instead).</p>


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Answer 3: <p>In theory...</p>
<p>Because [18 U.S. Code § 798][1]  requires a &quot;willful&quot; disclosure of classified information, the answer lies in the definition of the legal term 'willful'.  This is not the same as being willing or compelled.</p>
<blockquote>


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<p>The term &quot;willfully&quot; means no more than that the forbidden act was done deliberately and with knowledge, and does not require proof of evil intent. McClanahan v. United States, 230 F.2d 919, 924 (5th Cir. 1955), cert. denied, 352 U.S. 824 (1956); McBride v. United States, 225 F.2d 249, 255 (5th Cir. 1955), cert. denied, 350 U.S. 934 (1956). An act is done &quot;willfully&quot; if done voluntarily and intentionally and with the specific intent to do something the law forbids. There is no requirement that the government show evil intent on the part of a defendant in order to prove that the act was done &quot;willfully.&quot; See generally United States v. Gregg, 612 F.2d 43, 50-51 (2d Cir. 1979); American Surety Company v. Sullivan, 7 F.2d 605, 606 (2d Cir. 1925)(Hand, J.); United States v. Peltz, 433 F.2d 48, 54-55 (2d Cir. 1970),cert. denied, 401 U.S. 955 (1971) (involving 15 U.S.C. § 32(a). See also 1 E. Devitt, C. Blackmar, M. Wolff &amp; K. O'Malley, Federal Jury


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United States v. Peltz, 433 F.2d 48, 54-55 (2d Cir. 1970),cert. denied, 401 U.S. 955 (1971) (involving 15 U.S.C. § 32(a). See also 1 E. Devitt, C. Blackmar, M. Wolff &amp; K. O'Malley, Federal Jury Practice and Instructions, § 17.05 (1992).</p>


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</blockquote>
<p>Taken from - <a href="https://www.justice.gov/archives/jm/criminal-resource-manual-910-knowingly-and-willfully#:%7E:text=An%20act%20is%20done%20%22willfully,See%20generally%20United%20States%20v" rel="nofollow noreferrer">https://www.justice.gov/archives/jm/criminal-resource-manual-910-knowingly-and-willfully#:~:text=An%20act%20is%20done%20%22willfully,See%20generally%20United%20States%20v</a>.</p>
<p>So it stands to reason that if the witness knew the information was 'classified' and they answered the question, I think they would be in some trouble.</p>
<p>I believe the witness can simply say something to the effect of &quot;I am unable to legally answer that under 18 U.S. Code § 798&quot;.  I would love to see a court attempt to compel the witness to answer after that statement, as it could qualify as &quot;solicitation to commit a crime&quot; by the court. The legal debate there would be interesting.</p>
<p>But don't quote me.


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<p>But don't quote me.
[1]: <a href="https://www.law.cornell.edu/uscode/text/18/798" rel="nofollow noreferrer">https://www.law.cornell.edu/uscode/text/18/798</a></p>


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Answer 4: <p>The Espionage Act requires a &quot;willful&quot; disclosure of classified information, so a witness testifying under threat of contempt wouldn't be subject to legal liability for that testimony.</p>
<p>For that reason, the Fifth Amendment wouldn't really be a valid objection. And even if the disclosure would be criminal, answering those questions wouldn't be testimony <em>about</em> a criminal act, but the criminal act itself, so again, the Fifth Amendment would not apply. (But perhaps cross-examination would, if questions are framed as &quot;You told the court that <em>x</em>, right?&quot;</p>
<p>But there are other options instead. Ideally, the witness would notify the U.S. Attorney's Office that the other party is seeking this testimony, and the USAO would then assert one of two objections:</p>
<ol>


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<ol>
<li>If the testimony is sought in civil litigation, the government would likely object that the testimony would be governed by the state-secrets privilege.  Doing so would require testimony from the head of the relevant military or intelligence agency that disclosing the information would be likely to injure national-security interests. If the evidence is excluded, the case would continue forward on whatever other evidence remains.</li>


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<li>If the testimony is sought in a criminal case, the witness would object that it is governed by the <a href="https://www.law.cornell.edu/uscode/text/18a/compiledact-96-456/section-6" rel="nofollow noreferrer">Classified Information Procedures Act</a>, in which case, the court should hold a hearing at which it would determine whether the information relevant and otherwise admissible. If the evidence is excluded, the court may be required to dismiss the charges against the defendant, or it may simply order a jury to make adverse inferences against the government regarding whatever information is at issue.</li>
</ol>


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Question Title: Why don&#39;t people who are untruthful during jury selection get held in contempt of court?


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Question Body: <p>This question is U.S. based.</p>
<p>I ask this because recently I was summoned for jury duty.  When we were in the courtroom, the judge asked each of the jurors in the box a list of questions.  One of them was their command/understanding of the English language.</p>
<p>One person said he didn't understand English and ignored the judge's questions.  If I recall, some of the follow up questions asked were:</p>
<ul>
<li>Do you understand English? (The guy answered &quot;no&quot;)</li>
<li>If you don't know English, how did you know to come here today? (ignored the judge)</li>
<li>How old are you? (ignored the judge)</li>
<li>What do you do?  Do you work or go to school? (ignored the judge)</li>
</ul>


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<li>How old are you? (ignored the judge)</li>
<li>What do you do?  Do you work or go to school? (ignored the judge)</li>
</ul>
<p>It was clear he understood English because once the judge dismissed him, he immediately jumped out of his chair to leave.  Everyone laughed because they knew the guy was lying.  Even the judge remarked that even though he claimed he didn't understand English, he understood enough English to know &quot;you're dismissed&quot; meant he could leave and couldn't get out of his chair fast enough.</p>
<p>My question is why don't the courts charge people with contempt of court when it's clear they are untruthful?  This is total disrespect of the judge and the court and is insulting everyone, especially the honorable judge's intelligence.</p>
<p>We can't charge him with perjury because he didn't take an oath but if people were charged with arrest or contempt of court for this, there would hopefully be less of this.</p>


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<p>We can't charge him with perjury because he didn't take an oath but if people were charged with arrest or contempt of court for this, there would hopefully be less of this.</p>
<p><strong>EDIT:</strong> Sorry, I didn't mean to make this question into a debate about knowledge of English.  I just wanted to ask about holding people in contempt or some other punishment to prevent people from being untruthful when questioned during the jury selection process.  I understand and sympathize with those who don't have a strong understanding of English to be on the jury and don't mind them being excused.</p>
<p>Yes, maybe if this guy was a better actor and wasn't so blatant about him &quot;not knowing English&quot;, I wouldn't be as outraged and he may have still gotten dismissed.  He might not fool the judge since the judge probably sees this (acting) from others every day though.</p>


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Answer 1: <blockquote>
<p>Why don't people who are untruthful during jury selection get held in
contempt of court?</p>
</blockquote>
<p>The premise of the title question is incorrect. Jurors are regularly held in contempt of court for being untruthful during jury selection.</p>
<p>I suspect that the number of prospective jurors held in contempt by courts on any given day that courts are open in the United States would be in the hundreds nationwide every day (about 1-3 per day on a typical day in the entire State of Colorado), and in the tens of thousands nationwide every year, although usually the punishments would be at the mild end of what is allowed by law.</p>
<p>But, this isn't applied blindly in a zero tolerance fashion because the court's primary goal is to get cases tried not to punish dishonest prospective jurors and it doesn't have unlimited resources.</p>


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<p>Also, the court handling jury selection doesn't want to scare off jurors and have them try to formulate truthful excuses that the jurors wouldn't insist upon because they are afraid of being punished for slight missteps in the jury selection process.</p>
<p>Also, in the example mentioned, the question about an ability to speak English is really about an ability to be fluent enough to understand what is going on and be a fruitful deliberator in hearing a court case and deciding with other jurors who won. This is different from the ability to have the rudimentary understanding of some English language basics which is implicated in the conduct described. The judge would not be abusing his or her discretion to assume that the prospective juror was truthfully indicating that he was not sufficiently fluent to serve appropriately as a juror despite having some limited ability to speak and understand English.</p>


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Question Body: <p>For the sake of example, let's use Robert E. Howard's character &quot;Conan, the Barbarian&quot;. The author died in June 11, 1936, Cross Plains, Texas, United States.</p>
<p>As seen above, it's been almost 97 years of his passing at the time this question was posted. His works, including the mentioned character, are well into public domain.</p>
<p>Though that might be true, the expression &quot;Conan, the Barbarian&quot; is trademarked. Assume I want to write a novel about the rebirth of the character in the modern times. The title would be &quot;Conan, the reborn Barbarian&quot;.</p>
<p>Assume the copyright holder sues me for infringement of the eponymous copyright. Do they have cause to file this lawsuit?</p>


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<p>Assume the copyright holder sues me for infringement of the eponymous copyright. Do they have cause to file this lawsuit?</p>
<p>Does the use in the hypothetical above constitute a &quot;sufficiently related&quot; use as stated in <a href="https://www.uspto.gov/page/about-trademark-infringement" rel="nofollow noreferrer">https://www.uspto.gov/page/about-trademark-infringement</a></p>
<blockquote>


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<blockquote>
<p>The key factors considered in most cases are the degree of similarity between the marks at issue and whether the parties' goods and/or services are sufficiently related that consumers are likely to assume (mistakenly) that they come from a common source. Other factors that courts typically consider include how and where the parties' goods or services are advertised, marketed, and sold; the purchasing conditions; the range of prospective purchasers of the goods or services; whether there is any evidence of actual confusion caused by the allegedly infringing mark; the defendant's intent in adopting its mark; and the strength of the plaintiff's mark.</p>
</blockquote>


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</blockquote>
<p>Issues of <a href="/questions/tagged/copyright" class="post-tag" title="show questions tagged &#39;copyright&#39;" aria-label="show questions tagged &#39;copyright&#39;" rel="tag" aria-labelledby="tag-copyright-tooltip-container">copyright</a> are to be ignored. There's no copyrighted material or fair use. The character used in the hypothetical is in <a href="/questions/tagged/public-domain" class="post-tag" title="show questions tagged &#39;public-domain&#39;" aria-label="show questions tagged &#39;public-domain&#39;" rel="tag" aria-labelledby="tag-public-domain-tooltip-container">public-domain</a>.</p>


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Answer 1: <p>An exact match to a trademark is not necessary for trademark infringement to occur, as demonstrated in Toys &quot;R&quot; Us v. Akkaoui, 40 U.S.P.Q.2d (BNA) 1836 (N.D. Cal. 1996). Toys R Us successfully sued the adult website Adults R Us despite the lack of an exact match to any trademark, as the use of the name &quot;Adults R Us&quot; diluted the trademark of Toys R Us.</p>
<p>However, your specific hypothetical would probably need an actual lawyer to properly guess whether it would likely be considered infringing, as it's hard to know for certain.</p>


Tags: united-states, trademark, civil-law, public-domain


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Question Body: <p>Over on main meta, on <a href="https://meta.stackexchange.com/questions/389834/statement-from-so-june-5-2023-moderator-action">the post containing a statement from Stack Overflow about the current moderator action</a>, there was a brief edit war over the inclusion (or not) of the word &quot;strike&quot; in the title. An SO staff member <a href="https://meta.stackexchange.com/questions/389834/statement-from-so-june-5-2023-moderator-action?cb=1#comment1300884_389834">said</a> :</p>
<blockquote>
<p>While we recognize that the community is referring to this event as a
&quot;strike&quot;, that term has a specific legal meaning and we have been
advised not to refer to it as such. For that reason, we ask that
future editors of this post do not edit it to use that language.</p>
</blockquote>


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advised not to refer to it as such. For that reason, we ask that
future editors of this post do not edit it to use that language.</p>
</blockquote>
<p>What 'specific legal meaning' might be being referred to here? Why might a corporation want <em>the act of refusing to perform duties</em> to not be referred to as a strike? Is it relevant that those withholding effort are unpaid volunteers?</p>
<p>I'm guessing at the jurisdiction and hence the appropriate tag.</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>Under US law, unions and employees enjoy a <a href="https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights" rel="noreferrer">set of protections</a> codified under the National Labor Relations Act. Some of those rights <a href="https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/nlra-and-the-right-to-strike" rel="noreferrer">specifically pertain to strikes</a>, and in particular, employees engaged in &quot;lawful&quot; strikes cannot be fired merely for striking (but they can be replaced).</p>


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<p>Stack Exchange, Inc. takes the position that moderators are not employees and are not subject to the NLRA. Their reluctance to use the word &quot;strike&quot; likely stems from this position. If the moderation strike were a &quot;strike&quot; within the meaning of the NLRA, that would imply a large and complex set of restrictions on how Stack Exchange may respond to the strike. It would <em>also</em> suggest that moderators, as employees, have a <a href="https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/employee-rights" rel="noreferrer">right to discuss their &quot;workplace conditions&quot; with each other or the public</a> - which might be construed to include some or all of the moderation policies that Stack Exchange has distributed in private (but I'm somewhat doubtful of that).</p>


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<p>Of course, it would also raise serious problems under the <a href="https://www.dol.gov/agencies/whd/flsa" rel="noreferrer">Fair Labor Standards Act</a> (moderators are unpaid and the FLSA sets a minimum wage), but that is a different law, and it is theoretically possible that a court would rule that moderators are employees for NLRA purposes but not for FLSA purposes. I have never heard of such a ruling actually happening, and it is far more likely that moderators are <a href="https://corporate.findlaw.com/litigation-disputes/unpaid-staff-are-not-employees-under-the-nlra.html" rel="noreferrer">not employees for either purpose</a>. Still, it might be unwise to refer to the strike as a &quot;strike,&quot; just in case the issue gets litigated.</p>


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Answer 2: <p>The term has potentially as many specific legal meanings as there are statutes that use the word.  One example is title 29 of the United States Code, chapter 7 (Labor-Management Relations), which defines &quot;strike&quot; thus:</p>
<blockquote>
<p>The term “strike” includes any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted slowdown or other concerted interruption of operations by employees.</p>
</blockquote>
<p>Which is not terribly helpful.  Also unhelpful is the definition of &quot;employee&quot;:</p>
<blockquote>


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<blockquote>
<p>The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.</p>
</blockquote>


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</blockquote>
<p>In fact, it is not usually necessary to observe statutory definitions of terms when discussing something that is outside the scope of the statute in question.  Lawyers will nonetheless counsel their clients to avoid doing so because they do not want the use of the word to be taken as an implied admission of some circumstance that might weaken the client's case.</p>


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<p>I don't suppose the striking moderators are actually employees of Stack Exchange, Inc., so I cannot imagine how using the word &quot;strike&quot; could cause trouble.  But that doesn't matter a whole lot.  If they don't want to use the word strike, they can refrain from using it.  If they're trying to spin the situation by hiding behind purported legal advice, the only way you're going to prove that is with direct evidence.  Even if the legal reasoning is bogus, it could just be that they have a bad lawyer, or just an overcautious one.  Maybe they are worried that SE using &quot;strike&quot; would trigger a requirement to pay moderators minimum wage.  Or about something else.  Or maybe it's just spin.</p>


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Question Title: How is internet archiving legal, when it appears to violate many websites terms of use?

Question Body: <p>Internet archiving services like the <a href="https://archive.org/web/web.php" rel="noreferrer">internet wayback machine</a> work by rehosting content from other website. However, many websites in their term explicitly disallow people to frame their website or rehost their content. So my question is, how are internet archive websites allowed to work? </p>

<p>As a cursory search, I've found that a lot of websites have the phrase (or variants): </p>

<blockquote>
  <p>Under no circumstances may you “frame” the websites or any of their content or copy portions of the websites to a server, except as part of an Internet service provider’s incidental caching of pages.</p>
</blockquote>

<p>Yet, many of the sites that have this phrase are archived on <a href="https://archive.org/web/web.php" rel="noreferrer">archive.org</a></p>


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<p>Yet, many of the sites that have this phrase are archived on <a href="https://archive.org/web/web.php" rel="noreferrer">archive.org</a></p>

<p>My initial thoughts are that these websites don't have a problem with what archive.org is doing, so they don't pursue any legal action. However, it seems that archive.org is blatantly violating a huge number of websites terms. Although I have not legal experience, it seems that this could easily open themselves up to a class action lawsuit. Does anybody have any thoughts on this?</p>

<h1>Relevant Questions</h1>

<p><a href="https://law.stackexchange.com/questions/6929/is-it-legal-to-download-a-website-and-display-it-on-another-that-i-own?rq=1">Rehosting website</a> - This question mentions that rehosting websites violates copyright unless explicitly allowed.</p>


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Answer 1: <p>Most of the major archiving platforms are nonprofit ventures with purposes that could fall within the fair-use exception to the Copyright Act. Archive.org, for instance, is for educational and archival purposes. Perma.cc, meanwhile, is for preserving legal history.</p>
<p>I don't know about Perma.cc, but Archive.org will take down pages just because you asked, so that also cuts in its favor.</p>


Answer 2: <h2>Terms and conditions aren't necessarily binding</h2>

<p>It's worth noting that while activities such as the Wayback Machine have had <em>many</em> legal issues, they're mostly centered on copyright, not regarding terms and conditions.</p>


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<p>It's worth noting that while activities such as the Wayback Machine have had <em>many</em> legal issues, they're mostly centered on copyright, not regarding terms and conditions.</p>

<p>A key part of this is that terms and conditions are not law, and they're not  binding contract to which you've somehow agreed. Quoting <a href="https://law.stackexchange.com/a/1884/302">another relevant answer</a>, "In the case of a web site, the owner of the web site is granting you a license, subject to certain terms, to access the web site and use it." You're free to <em>not</em> accept that license offer in which case you don't have their explicit permission to access that site. However, you don't necessarily <em>need</em> their permission to do so - the permission is useful because it protects you from the following two main legal claims:</p>


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<ul>
<li>Copyright - it may be that this implied license in combination with T&amp;C is the only thing that gives you the copyright owners' permission to copy that data. However, that's not a factor in fair use scenarios where copyright owner's permission isn't required, which is the main legal claim of internet archives (which sometimes <a href="https://en.wikipedia.org/wiki/Wayback_Machine#Archived_content_legal_issues" rel="noreferrer">gets contested</a>). It doesn't matter whether the copyright holder clearly tells you "I don't allow this!!!" in person, in email, in a legal cease&amp;desist letter or on the T&amp;C section of their website, if the copyright law permits you to make and/or distribute these copies without their permission.</li>


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<li>"Hacking" laws like CFAA (Computer Fraud and Abuse Act) - it may be that violations of T&amp;C get prosecuted by various laws designed to target hacking. However, that generally requires something worse than what internet archives are doing. Internet archives generally respect both 'robots.txt' standard to limit access to what websites don't want to be scraped, they generally accept takedown notices, and their mission makes it less likely for courts to consider that the activity is in bad faith. If someone like myself would "just" scrape the same sites for some commercial gain, and continue to do so after receiving explicit cease and desist notice, then a lawsuit would have a larger chance of succeeding - but even then likely not, see a <a href="https://www.documentcloud.org/documents/3932131-2017-0814-Hiq-Order.html" rel="noreferrer">HIQ Labs vs Linkedin court ruling</a> and <a


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chance of succeeding - but even then likely not, see a <a href="https://www.documentcloud.org/documents/3932131-2017-0814-Hiq-Order.html" rel="noreferrer">HIQ Labs vs Linkedin court ruling</a> and <a href="https://arstechnica.com/tech-policy/2017/08/court-rejects-linkedin-claim-that-unauthorized-scraping-is-hacking/" rel="noreferrer">an article about it</a> as an example where a company explicitly and intentionally scraped Linkedin data against their T&amp;C for years but the court didn't consider that as a violation of CFAA.</li>


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Question Title: To what is the judge in the Lina E. trial referring to by &quot;deplorable deficiencies in recent trials of far-right extremists&quot;?


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Question Body: <p><a href="https://www.bbc.co.uk/news/world-europe-65801804" rel="nofollow noreferrer">It is in the news</a> that there have been protests after the sentencing of Lina E for attacks on neo-Nazis. <a href="https://en.wikipedia.org/wiki/Trial_of_Lina_E.#Arrest_and_trial" rel="nofollow noreferrer">Wikipedia</a> quoting <a href="https://www.fr.de/politik/antifa-news-lina-e-prozess-urteil-verkuendung-demo-leipzig-dresden-kassel-linksextremismus-zr-92312816.html" rel="nofollow noreferrer">this German language news article</a> says:</p>
<blockquote>
<p>Hans Schlüter-Staats, the Higher Regional Court of Dresden judge overseeing the trial, stated that &quot;opposing right-wing extremists is a respectable motive&quot; and that there had been &quot;deplorable&quot; deficiencies in recent trials of far-right extremists</p>
</blockquote>
<p>To what cases is the judge referring to here?</p>


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Answer 1: <blockquote>
<p>To what cases is the judge referring to here?</p>
</blockquote>
<p>None: neither the quoted article (<a href="https://web.archive.org/web/20230602053810/https://www.fr.de/politik/news-lina-e-prozess-urteil-verkuendung-demo-leipzig-dresden-kassel-linksextremismus-antifa-zr-92312816.html" rel="nofollow noreferrer">2023-06-02 05:57: Prozess gegen Lina E.: Stadt Leipzig verbietet Solidaritäts-Demonstration</a>) given in the <a href="https://en.wikipedia.org/wiki/Trial_of_Lina_E.#Arrest_and_trial" rel="nofollow noreferrer">english version of Wikipedia</a> nor the german Wikipedia version (<a href="https://de.wikipedia.org/wiki/Dresdner_Linksextremismusprozess" rel="nofollow noreferrer">Dresdner Linksextremismusprozess – Wikipedia</a> uses the quote given in the english version.</p>
<p>In the article itself, the name 'Hans Schlueter-Staats' is used only once:</p>
<blockquote>


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<p>In the article itself, the name 'Hans Schlueter-Staats' is used only once:</p>
<blockquote>
<p>The arrest warrant against them will be suspended against conditions, said <strong>Hans Schlueter-Staats</strong>, presiding judge of the State Protection Chamber at the Dresden Higher Regional Court, on Wednesday evening at the end of the verdict. She only has to serve the remainder of the sentence if the verdict becomes final.</p>
</blockquote>
<p>Assume that, for whatever reason, someone added a fabricated quote, in the Wikipedia page, that is <strong>not</strong> contained in the given source hoping that nobody would notice (either because the reader can't read German or simply wouldn't look).</p>
<p>It would be <strong>very strange</strong> for a judge whos primary duty, in a civil law system, is to <em>read the law as written</em>, to give a personal opinion about previous rulings (which was the reason I looked: to read the exact German text).</p>


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<p>Whoever fabricated that quote was obviously unaware of this <strong>or</strong> didn't care hoping that others would simply assume it to be correct due the given source of a newspaper that has a reputation as being a reliable source.</p>


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Question Title: Can I use code from a computergame that is owned by a company A in order to develop my own game at company B?

Question Body: <p>I want to develop a game with my own company, lets call it Indiantruckaimulator, that is very similiar to the already existing game, Eurotruck simulator. I would greatly benefit if I could use their Code/Software and simply add some changes.
Is there a way for me to get access to that code, preferably through colaboration :), to be able to build upon that?</p>
<p>Thank you for your time and answers!</p>


Answer 1: <p>You ask permission, preferably with legal counsel to handle the details. It really is that simple.</p>
<p>Unsurprisingly, most companies don't want to give their code away- especially to a competitor. If you even get a response, they will expect something in return i.e. money.</p>
<p>Realistically though, it's unlikely they will respond, much less deal with you.</p>


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Answer 2: <h2>Code is copyrighted</h2>
<p>The code is copyrighted. You need a license from the copyright owner to manipulate it, if you alter it to the extent that you create a derivative work and do not qualify for Fair Use or a similar exception (see below).</p>
<p>Creating a game with a different map clearly is a derivative work.</p>
<p>You can only get that license from the company that initially made or currently distributes the game which code you want to use.</p>
<p>If they don't respond or don't want you to use their code, you can't use their code at all.</p>
<h2>But... fair use?!</h2>
<p>There are <strong>some</strong> exceptions to needing a license, like fair use. However, those are generally not available for making a competing game.</p>


Tags: licensing, patents


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Question Body: <p>In this [movies.meta.se] question: <a href="https://movies.meta.stackexchange.com/questions/4925/what-if-a-questions-embedded-video-clip-is-struck-down-for-copyright-violation">What if a question's embedded video clip is struck down for copyright violation?</a>, I discuss a potential policy issue for that exchange. In the case I list, there is a question that was asked, which includes an embedded YouTube video from a Star Wars movie to better explain the author's question.</p>
<p>Disney, as Disney does, struck down the video as a copyright violation. (In the case of that particular question, the video, in my opinion, isn't actually needed, as the question, to me, is still understandable.) We get, however, many questions that are related to things shown directly in the attached or linked videos and without them the question becomes problematic in understanding.</p>


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<p>My question here is not about (US) &quot;fair use&quot; or the legality or morality of the strike or use of the video, but specifically about one possible choice given by GalacticNinja:</p>
<blockquote>
<p>If I could not find a suitable replacement, I would check for an archived version of the video at the Internet Archive Wayback Machine. (The Internet Archive Wayback Machine can make backups of YouTube videos.)</p>
</blockquote>
<p>If the copyright holder has struck down a video as a violation, what is our potential liability involved, if we were to re-embed or re-link to an archive which still shows the struck down video?</p>
<p>I would ask about potential liability as a user and to the SE corporation.</p>


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Answer 1: <p>Under the DMCA safe harbor provisions, the platform is protected from liability if they follow specific procedures, but may be liable for contributory infringement if they do not. The crux of the procedural dance is their receipt of official notices and counter notices, and their responses. The trigger is a sworn statement by the copyright holder: in the scenario that you describe, there is no such take-down notice. A take-down notice is directed at a specific infringement (delivered to Youtube), and the required remedy is that the content host must remove the copied material. This was done in the particular case, so there is no further issue.</p>


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<p>The copyright owner would have to separately serve notice on MeTube or FreeTube for distributing the same work. SE or similar platform is not even close to the liability ballpark until it gets served with notice. YouTube, on the other hand, could be liable if they restored the content after taking it down (this is covered via the counter-claim and put-back provisions). The copyright owner's whack-a-mole department has to dilligently find all of those infringers.</p>


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<p>&quot;Infringing&quot; boils down to copying, not to &quot;referring to&quot;, and in the cases you are asking about, there is no copying of the content – there is a reference (link) to allegedly infringing material. The case <a href="https://www.law.uh.edu/faculty/cjoyce/copyright/release10/intres.html" rel="nofollow noreferrer">Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc.</a>, 75 F. Supp. 2d 1290 gives indications of what actions <em>other than</em> actual copying might be deemed &quot;contributory infringement&quot;. The court points out that browsing anything requires copying – &quot;in making a copy, even a temporary one, the person who browsed infringes the copyright&quot; –


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although if the person browsing &quot;was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages&quot;. So yes, there is always potential for end-users to be sued for infringement, and usually an escape hatch for innocent infringers.</p>


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<p>The other question raised in this case, about the platform's liabilities, is somewhat mooted by the apparent age of the would-be infringement which sees to predate DMCA. But the case does include an element of infringement-by-link, and the court found in that instance that &quot;defendants have actively encouraged the infringement of plaintiff's copyright&quot;, citing various facts where the host overtly directed users to infringing sites, for example &quot;Please mirror these files . . . . It will be a LOT quicker for you to download the compressed version . . . Needless to say, we need a LOT of mirror sites, as absolutely soon as possible&quot;. This is markedly different from what happens on SE. Inline linking is generally considered safe (the burden of stopping copyright infringement is on the actual host). There is no encouragement of infringement, only the potential.</p>


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Question Title: Worker was sent to a store he was fired from but wasn&#39;t allowed to complete his job. New employer fired him as result


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Question Body: <p>This is a theoretical situation. A person had worked at a retail store. He was terminated without cause and with severance. A few years later the same person is working for a marketing company on a part time basis. On one shift the company sends him to the retail store he was terminated from. An hour after arriving, he is told by his manager (by phone) that he has to leave, and is told by the new store manager that he was trespassing and had been banned. There had been no prior discussion about being banned. The marketing company immediately terminated him and canceled his future shifts due to the single &quot;complaint&quot; from the store. There was no notice, explanation or severance pay.</p>
<p>Have any laws been broken? Does the worker have recourse against the marketing company or store? Does it make a difference if he was a part time employee or contractor? Does the worker have a right to know what the store had said about him to see if it was slander?</p>


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Answer 1: <p>For purposes of this answer I am assuming that Bob is an employee. If Bob was a contractor then Employer could simply stop assigning him shifts. I am also assuming he has worked there more than 3 months as under BC law employees with less than 3 months service can be dismissed without cause without notice/severance. I'm also assuming that no illegal discrimination took place here**.</p>
<p>The short answer is this all looks legal and Bob would have difficulty fighting it.</p>
<p>A private business can refuse admittance to anyone for any reason. Even if Bob personally considers it unjust, they are not obliged to serve him. As it is private property, being on the premises was indeed trespassing.</p>


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<p>This would likely be sufficient for Termination With Cause. Realistically, any action severe enough to get banned from a store would be more than enough to constitute gross misconduct. I work in retail and have only ever seen it happen for theft or aggressive behaviour. &quot;Breaking Company Rules&quot; is also considered Just Cause and in this case the company has a rule of &quot;don't piss off the clients so much they complain, much less eject you&quot;.</p>
<p>Bob does not have a legal right to know what happened in a private conversation. It's possible the store didn't even give details beyond &quot;Bob was barred from the premises.&quot;</p>
<p>*Hypothetical male characters are called Bob- that's just how it is.</p>
<p>**Ammend &quot;except illegal discrimation&quot; whenever I say &quot;for any reason&quot;</p>


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Question Title: Who owns a copyright of a work that is found to be infringing? For example Warhol case that SCOTUS heard

Question Body: <p>Warhol made screen prints from Lynn Goldsmith's photograph. Those prints have earned millions of dollars. If SCOTUS finds that Warhol infringed, who owns copyright to the Warhol prints? If they are not transformative enough to qualify as fair use, does Goldsmith own the copyright to the prints? Or does Warhol own them and he has to pay a licensing fee?</p>


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Answer 1: <p>Arguably, no one owns the copyright in the general case. This is a similar case to a previous <a href="https://law.stackexchange.com/a/78082/3209">question I've answered</a>. In short, the US has a statutory provision which bars infringing derivatives from gaining copyright.</p>
<p>In this particular case, it's helpful to take a look at what the Court of Appeals for the Second Circuit <a href="https://law.justia.com/cases/federal/appellate-courts/ca2/19-2420/19-2420-2021-03-26.html" rel="nofollow noreferrer">had to say</a>. While evaluating transformativeness, they did not declare Warhol's works to be derivatives, but left that possibility open and stated it was closer to being a derivative than transformative fair use:</p>
<blockquote>


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<blockquote>
<p>Nonetheless, although we do not conclude that the Prince Series works are necessarily <em>derivative</em> works as a matter of law, they are much closer to presenting the same work in a different form, that form being a high-contrast screenprint, than they are to being works that make a transformative use of the original.</p>
</blockquote>
<p>That Warhol's prints might have no copyright attached to them does not mean that anyone can use them though – they are still very much based on Goldsmith's photo and the underlying copyright to the original still belongs to Goldsmith. This could well mean that Goldsmith would be able to use the Warhol prints as if she owned its copyrights.</p>
<hr />


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<hr />
<p><strong>Update:</strong> The Supreme Court <a href="https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf" rel="nofollow noreferrer">has now affirmed</a>, albeit on a narrow appeal from the Second Circuit Court of Appeal which dropped the issue that this question is about.</p>
<p>Only the first fair use factor of transformativeness was challenged by the Andy Warhol Foundation (AWF). Additionally, and more important for this question is that only a single use was ruled on: the licensing of one of the prints by AWF for a 2016 magazine article reprint following Prince's death. This is because <a href="https://copyrightblog.kluweriplaw.com/2023/06/05/how-to-distinguish-transformative-fair-uses-from-infringing-derivative-works/" rel="nofollow noreferrer">Goldsmith dropped the wider infringement claims</a>.</p>


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<p>Here's where I realize I missed a key distinguishing fact in the case: There was indeed a narrow license for use of the photo for &quot;artist reference&quot; in relation to an article to be published in a 1984 <em>Vanity Fair</em> issue.</p>
<p>In effect, due to the license, the (probable) derivative could be considered non-infringing<sup>1</sup>. Nevertheless, the court ruled that the use in the 2016 issue was not fair (given there was no license for use beyond the 1984 article, AWF had to rely on a fair use defense).</p>
<p>In other words, the Warhol prints as a whole are not necessarily infringing derivatives<sup>2</sup>, rather, the specific use in the 2016 article was affirmed to be infringing.</p>
<p>In particular, I'd like to highlight the following from court:</p>
<blockquote>
<p>The fair use provision, and the first factor in particular,
requires an analysis of the specific “use” of a copyrighted
work that is alleged to be “an infringement.” §107. The


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<blockquote>
<p>The fair use provision, and the first factor in particular,
requires an analysis of the specific “use” of a copyrighted
work that is alleged to be “an infringement.” §107. The
same copying may be fair when used for one purpose but
not another.</p>
</blockquote>
<hr />
<ol>
<li>The full license text is not in any of the court decisions, so it's impossible for us to know for sure, but the portions that are quoted lead me to believe the license is vaguely worded. In particular, its in the realm of possibility that <em>only</em> the single derivative used on the 1984 article was licensed, but I would argue its reasonable to expect an artist to try multiple derivatives given a license for &quot;artist reference.&quot; This could potentially have been of some consequence as the print used in the 2016 article is not the same as the one used in the 1984 article.</li>


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<li>But since this case was initiated in <a href="https://scholar.google.com/scholar_case?case=4495688805136636572" rel="nofollow noreferrer">district court</a> by the AWF seeking declaratory judgment of non-infringement, my understanding of the matter is that once the case is passed back to the district court, it will enter in that declaration given Goldsmith dropped the wider infringement claims. Take this with a grain of salt, I'm not very well-versed in trial procedure.</li>
</ol>


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Question Title: Who gets to see the living revocable trust documents when a person dies?

Question Body: <p>Suppose that person X has setup a living revocable trust and his or her will leaves everything to the trust. The trust controls who gets the assets after person X dies.</p>
<p>After some time, person X dies. Who has the right to see the living revocable trust? I am thinking the trustee of the trust does and all the beneficiaries of the trust do. Does a contingent beneficiary have the right to see the trust documents? Is there anybody else who has the right to see the trust documents?</p>
<p>The jurisdiction that I am interested in is the United States and in particular the state of New Jersey.</p>


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Answer 1: <p>Unlike the Last Will and Testament of a decedent, a revocable living trust that becomes irrevocable by virtue of the death of the settlor generally does not become a matter of public record at the death of the settlor.</p>
<p>In both New Jersey, and under the Uniform Trust Code, a beneficiary of a trust needs to be informed that they are a beneficiary of a formerly revocable trust, when the settlor of the trust dies. At common law, the majority rule was that a beneficiary only needed to be informed of the existence of the trust when there was a need to know for some reason (e.g. for tax purposes).</p>
<p>New Jersey law provides that:</p>
<blockquote>
<p>A trustee, upon request of a beneficiary, shall promptly furnish to
the beneficiary a copy of the trust instrument.</p>
</blockquote>
<p>N.J.S. § 3B:31-67(b).</p>


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<blockquote>
<p>A trustee, upon request of a beneficiary, shall promptly furnish to
the beneficiary a copy of the trust instrument.</p>
</blockquote>
<p>N.J.S. § 3B:31-67(b).</p>
<p>This has the virtue of being easy to administer. The New Jersey rule calls for slightly more disclosure that the potentially more difficult to administer majority common law rule, which is found in the unmodified provision of the Uniform Trust Code adopted unmodified in many states, which states that:</p>
<blockquote>
<p>A trustee . . . Upon request of a qualified beneficiary, shall
promptly furnish to the qualified beneficiary a copy of the portions
of the trust instrument that describe or affect the beneficiary's
interest[.]</p>
</blockquote>
<p>Uniform Trust Code Section § 813(2)(a).</p>
<p>The Uniform Trust Code is a model statute, sponsored by American Bar Association affiliated entities, that states can adopt if they wish as state law with whatever modifications they deem fit.</p>


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<p>The Uniform Trust Code is a model statute, sponsored by American Bar Association affiliated entities, that states can adopt if they wish as state law with whatever modifications they deem fit.</p>
<p>Of course, there are other reasons that disclosure of the trust could be required, at least, in the event that interactions with these parties rose to the level of litigation or were necessary to make a transaction go forward.</p>


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<p>For example, it might have to be disclosed to a financial institution in which the trust wishes to establish an account, to a title company in connection with a real estate transfer from the trust, to taxing authorities, to someone with standing to do so suing the drafter of the trust for legal malpractice, to a trust protector or legal representative of a beneficiary, to creditors of the trust or of the decedent-settlor of the trust, to a former beneficiary contesting the validity of a change to the trust, or to someone who would have inherited from the decedent if the trust had not been formed contesting the validity of the trust's formation.</p>


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Question Title: Is Crypto the same as any foreign currency?

Question Body: <p>A foreign currency exchange is nothing new.  On the other hand cryptographic currency (&quot;crypto&quot; i.e. Bitcoin) is relatively new, as are their exchanges.</p>
<p><a href="https://abcnews.go.com/Business/wireStory/sec-brings-charges-cryptocurrency-trading-platform-coinbase-99866462" rel="nofollow noreferrer">https://abcnews.go.com/Business/wireStory/sec-brings-charges-cryptocurrency-trading-platform-coinbase-99866462</a></p>
<p>If crypto is a currency, Why not regulate it as a currency and not a security?</p>


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Answer 1: <blockquote>
<p>Is Crypto the same as any foreign currency?</p>
</blockquote>
<p>No.</p>
<p>Crypto is generally treated as a commodity and capital asset, like gold, and not like a currency, under U.S. tax law. Other jurisdictions vary in how they treat cryptocurrency legally and for tax purposes.</p>
<p>Bitcoin (unlike other cryptocurrencies) is <a href="https://www.cnn.com/2023/06/06/business/nightcap-crypto-sec-binance-coinbase/index.html" rel="nofollow noreferrer">also regulated on a non-tax basis as a commodity</a> by the Commodity Futures Trading Commission. Other cryptocurrencies are regulated in the U.S. as securities by the Securities and Exchange Commission.</p>
<blockquote>
<p>Why not regulate it as a currency and not a security?</p>
</blockquote>
<p>Cyptocurrencies are not very much like currencies which is why they are not regulated in that way.</p>


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<blockquote>
<p>Why not regulate it as a currency and not a security?</p>
</blockquote>
<p>Cyptocurrencies are not very much like currencies which is why they are not regulated in that way.</p>
<p>The basis for treating it more like a security and less like a foreign currency for securities fraud/disclosure purposes is that it is a better fit to securities law which is designed for more varied legal arrangements than foreign currency laws.</p>
<p>Foreign currencies are backed by the full faith and credit of sovereign countries (which are non-profit entities). Also, foreign currencies are transparently based upon laws that are almost always a matter of public record and relatively straightforward. And, of course, banks and money changing firms trading in foreign currencies are subject to significant tax and financial regulation of their own, although not as securities.</p>


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<p>In contrast, like other securities, cryptocurrencies are private creatures of contract created by entities with shareholders which do not have uniform legal properties. New &quot;coins&quot; can be created in different ways in different crypto currencies, and the relationship between the cryptocurrency to the non-crypto financial markets varies. Securities-like disclosures are necessary for members of the public dealing with it to understand the risks, benefits, and mechanics of the cryptocurrency in question.</p>
<p>The U.S. Securities And Exchange position and its basis is suggested by the <a href="https://abcnews.go.com/Business/wireStory/sec-brings-charges-cryptocurrency-trading-platform-coinbase-99866462" rel="nofollow noreferrer">ABC News story linked in the question</a>, which states:</p>
<blockquote>
<p>Coinbase has been targeted by U.S. regulators in a new lawsuit Tuesday
that alleges the cryptocurrency platform is operating as an


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<blockquote>
<p>Coinbase has been targeted by U.S. regulators in a new lawsuit Tuesday
that alleges the cryptocurrency platform is operating as an
unregistered securities platform and brokerage service.</p>
<p>The lawsuit from the Securities and Exchange Commission comes only a
day after it filed charges against Binance, the world's largest crypto
exchange, and its founder Changpeng Zhao are accused of misusing
investor funds, operating as an unregistered exchange and violating a
slew of U.S. securities laws.</p>
<p>Coinbase shares plunged nearly 15% early Tuesday.</p>
<p>In its complaint, the SEC said Coinbase made billions acting as the
middle man for cryptocurrency buyers and sellers but did not give
investors lawful protections while acting as a broker.</p>
<p>“Coinbase has for years defied the regulatory structures and evaded
the disclosure requirements that Congress and the SEC have constructed
for the protection of the national securities markets and investors,”


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the disclosure requirements that Congress and the SEC have constructed
for the protection of the national securities markets and investors,”
the SEC said in its complaint, which was filed in U.S. District Court
for the Southern District of New York. It seeks injunctive relief,
disgorgement of ill-gotten gains plus interest, penalties, and other
equitable relief.</p>
</blockquote>


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Question Body: <p>Hello I am trying to learn more about securities and really confused by the laws regarding unregistered securities in the US. NJ state if that helps too. I made a scenario and I am needing help to understand if this would be legal or not.</p>
<p>In online poker you play poker and when you win the tournament against other players then are granted a entry ticket into the next event. As you may know you can win money in poker.</p>
<p>I am having trouble understanding the Howey Test which is &quot;investment of money in a common enterprise with a reasonable expectation of profits to be derived from the efforts of others.&quot; Which is used to deem what is and isn't a security.</p>
<p>Here's my thought experiment from my thinking into this concept:


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<p>Here's my thought experiment from my thinking into this concept:
If you were to play a poker tournament, win it and be issued a ticket that gave you access to a percentage of all the money paid into the NEXT tournament by other players (let's call it a &quot;money ticket&quot;) as a prize would this &quot;money ticket&quot; be a security? Why/why not?</p>
<p>The &quot;money ticket&quot; would basically be a revenue share voucher.</p>
<p>Edit: What if you only got the profits if you won the second tournament as well? Would the ticket still be a security?</p>
<p>Thank you!</p>


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Answer 1: <h4>Almost certainly yes.</h4>
<p>As you say, the test is indeed the <a href="https://www.investopedia.com/terms/h/howey-test.asp" rel="noreferrer">Howey Test</a>, which, as you say, asks if it is an &quot;investment of money in a common enterprise with a reasonable expectation of profits to be derived from the efforts of others.&quot;</p>
<p>Here, the &quot;efforts of others&quot; would be running the poker tournament.  The &quot;expectation of profits&quot; is to be derived from the proceeds of their efforts running the tournament, advertising it, etc.  It's basically pretty similar to receiving something like equity in the tournament, and equity is of course well-established to be a security.</p>


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<p>To avoid running afoul of laws against unregistered security offerings, they would likely need to either limit the people who could win such a ticket to <a href="https://www.sec.gov/education/capitalraising/building-blocks/accredited-investor" rel="noreferrer">accredited investors</a> or go to the trouble of formally registering the securities.  The latter isn't impossible: banks routinely register a wide variety of securities that they sell to their various customers.  But it is a lot more process, and banks who do this are set up to be able to do it with as little process overhead as possible.  Whether that would be practical for a company running poker tournaments would probably depend a lot on the details of the situation.</p>


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Question Title: Do any jurisdictions besides Texas permit a couple to register a marriage years after the fact?


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Question Body: <p>A couple in Texas, otherwise unmarried, can go to the county courthouse and register their marriage on any date they choose. The date can be years earlier. Is this allowed elsewhere? What legal system is this practice likely to be inherited from?</p>
<p>I would like to offer more information about why I am curious about formalization of informal marriages. First, as in Texas, same sex couples could obtain certification of marriages that were initiated before such marriages were legal. People could obtain the benefits of a long standing marriage, even predating Obergefell versus Hodges. Moreover, Texas law does not seem to prohibit any couple from moving to Texas, becoming residents, and formalizing their long-standing relationship, though started elsewhere. This might take only a few days or possibly a month depending on the requirements for residency.</p>


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<p>Second, I met a couple who had recently married in Britain in a Hindu (I believe) ceremony, but did not marry in a church or registry office. Thus, their marriage was not registered. I met them on the airplane when they were flying to Las Vegas with the intention of marrying there to obtain legal recognition of their marriage. They seemed to believe that others had done the same. From news sources I understand that marriage without documentation in Britain is fairly common among both Hindus and Muslims. This presents a problem, particularly to women, if they later seek a divorce since they are not recognized as married by the British courts.</p>


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Answer 1: <p>The question mischaracterizes Texas law. <a href="https://texaslawhelp.org/article/common-law-marriage" rel="nofollow noreferrer">Texas allows a common law marriage to be formally acknowledged</a> in a document signed by the parties, for bureaucratic convenience and to end uncertainty. As clarified in the comments:</p>
<blockquote>
<p>this procedure isn't for couples who are &quot;otherwise unmarried&quot;, but
for those who are already married under common law (by living together
as spouses, etc). And the date presumably can't actually be any date
they choose, but only within the time period of their common-law
marriage.</p>
</blockquote>
<p>In Texas, there is a common law marriage (per the link above) when you and your partner:</p>
<blockquote>
<p>are not already married, informally or formally, to anyone else at the
time the marriage was created, AND</p>
<p>both you and your partner were at least 18 years of age when the
marriage was created; and</p>


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time the marriage was created, AND</p>
<p>both you and your partner were at least 18 years of age when the
marriage was created; and</p>
<p>you agreed to be married, AND</p>
<p>afterward, lived in Texas as a married couple, and</p>
<p>represented to others that you are married (“holding out” to others).</p>
</blockquote>
<p>These requirements, or some close variant of them, are typical of almost all common law marriage states.</p>
<p>Common law marriages <a href="https://www.ncsl.org/human-services/common-law-marriage-by-state" rel="nofollow noreferrer">may be formed in the following U.S. states</a>:</p>
<blockquote>
<p>Colorado: Common law marriage contracted on or after Sept. 1, 2006, is
valid if, at the time the marriage was entered into, both parties are
18 years or older, and the marriage is not prohibited by other law
(Colo. Stat. §14-2-109.5)</p>
<p>Iowa: Common law marriage for purposes of the Support of Dependents


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18 years or older, and the marriage is not prohibited by other law
(Colo. Stat. §14-2-109.5)</p>
<p>Iowa: Common law marriage for purposes of the Support of Dependents
Chapter (Iowa Code §252A.3) Otherwise it is not explicitly prohibited
(Iowa Code §595.1A)</p>
<p>Kansas: Common law marriage will be recognized if the parties are 18
or older and for purposes of the Divorce and Maintenance Article,
proof of common law marriage is allowed as evidence of marriage of the
parties (Kan. Stat. §23-2502; Kan. Stat. §23-2714)</p>
<p>Montana: Not strictly prohibited, they are not invalidated by the
Marriage Chapter (Mont. Stat. §40-1-403)</p>
<p>New Hampshire: Common Law Marriage: &quot;persons cohabiting and
acknowledging each other as husband and wife, and generally reputed to
be such, for the period of 3 years, and until the decease of one of
them, shall thereafter be deemed to have been legally married.&quot; (N.H.
Stat. §457:39)</p>


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be such, for the period of 3 years, and until the decease of one of
them, shall thereafter be deemed to have been legally married.&quot; (N.H.
Stat. §457:39)</p>
<p>South Carolina: allows for marriages without a valid license (S.C.
Stat. §20-1-360)</p>
<p>Texas: Common Law Marriage in specific circumstances (Tex. Family Law
§1.101; Tex. Family Law §2.401-2.402)</p>
<p>Utah: Utah Stat. §30-1-4.5</p>
</blockquote>
<p>While Texas provides a standard form for doing so, affidavits from each spouse, possibly filed in public real property records where the parties reside, would have the same effect. The use of a standardized safe harbor state approved form for doing this is a Texas-specific innovation.</p>


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<p><a href="https://en.wikipedia.org/wiki/Common-law_marriage" rel="nofollow noreferrer">Common law marriage</a> derives from English law, although it has since been abolished in England. The practice of formally documenting events and relationships that arise by operation of law with a signed instrument is a long standing one in all sorts of legal contexts.</p>
<p>The Texas standard form Declaration would be prima facie evidence of the facts stated in it about the common law marriage of the parties, that would be hard to rebut. But, if someone had a legitimate reason to question whether they were actually married on the date stated (e.g. to overcome a claim of spousal confidential communications privilege) this could be overcome with evidence offered in an evidentiary hearing to the contrary (e.g. proof that the couple didn't meet until two years after the date recited).</p>


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Question Title: Legal ramification of becomming incompetent with regards to financial accounts

Question Body: <p>A spouse becomes mentally incompetent as a result of an auto-accident. What happens to the individual brokerage and bank accounts of the incapacitated spouse?</p>
<p>Would a power of attorney (POA) or durable POA come into/or go out of effect? How would the competent spouse gain control over these individual accounts? Are there any legal or financial tools to prepare for such events?</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>If there is a durable POA in place naming the non-incapacitated spouse as agent, the non-incapacitated spouse could act on behalf of the incapacitated spouse with respect to accounts for which the non-incapacitated is not a signer already.</p>
<p>If there is not a POA in place, the non-incapacitated spouse could apply to a court of probate jurisdiction to be appointed as the guardian (i.e. guardian of person) or conservator (i.e. guardian of property) of the incapacitated spouse.</p>
<p>I am not aware of any U.S. jurisdiction in which a non-incapacitated spouse has the right to act on behalf of an incapacitated spouse without a court order or a durable POA.</p>


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<p>I am not aware of any U.S. jurisdiction in which a non-incapacitated spouse has the right to act on behalf of an incapacitated spouse without a court order or a durable POA.</p>
<p>To prepare for this possibility, spouses can execute durable powers of attorney, which often also include a clause designating the agent as the person with priority to serve as the conservator of the principal spouse in the event of incapacity. A spouse could also be set up as co-signer without an ownership interest of a spouse's account.</p>


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<p>A durable power of attorney can be immediately effective and survive disability, or it can be a &quot;springing power&quot; which takes effect upon incapacity. The process for determining when the principal is incapacitated when a durable power of attorney with a springing power is involved depends upon the language of the power of attorney, the financial institution's policies, and the law (in the U.S. almost always state law) of the place where the power of attorney is to be used.</p>
<p>Sometimes a statement from the power of attorney agent is sufficient to trigger a springing power of attorney. Sometimes a doctor's letter is necessary. Sometimes a financial institution officer is given discretion regarding how to show to their satisfaction that the power of attorney principal is incapacitated.</p>


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Question Title: Can terms of a will be legally kept secret before filed in court?

Question Body: <p>Let's say a father has two sons and he creates a will. He leaves something to son A and something else to son B. He doesn't want either of the sons to know the amount the other gets.</p>
<p>And let's assume neither of the sons are aware of the total amount in order to figure out the other's portion of the inheritance. We can introduce more than 2 sons to remove the assumption of the sons' unawareness of the total.</p>
<p>Is it possible to create a will like that?
I am in the United States. If it varies by state, could you share examples of states with different answers?</p>
<p>CLARIFICATIONS:</p>
<ol>
<li><p>The father doesn't want his executor to disclose son A's inheritance to son B and vice versa. If the sons want to share this information between them, that's their choice.</p>
</li>
<li><p>The will is a complete secret from his family until his death.</p>
</li>
</ol>


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Answer 1: <p>FIRST: A last will and testament does not have to be disclosed to anyone [1] prior to death.</p>
<p>But at death, notice of the commencement of a probate proceeding which is necessary for the will to be given effect must generally be given to:
(1) everyone who takes under the will, and
(2) everyone who would take if either that particular version of the will were invalid and a prior will that it revokes is valid, and
(3) everyone who would take if there were no valid will, and
(4) creditors whose claims are accepted as valid, but are not paid due to the insolvency of the probate estate.</p>
<p>Everyone entitled to notice of the probate of a will is entitled to see the last will and testament submitted to the court in its entirety.</p>


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<p>Everyone entitled to notice of the probate of a will is entitled to see the last will and testament submitted to the court in its entirety.</p>
<p>The case could be placed under seal to prevent people other than interested parties and their lawyers from seeing the will, but not sons of a decedent who are interested parties by definition even if they get nothing under the will, because they would take if there was no will.</p>
<p>SECOND: This said, it is easy to make a secret transfer effective upon death via a variety of non-probate transfers such as a beneficiary designation on an account, or the provisions of a trust, that don't require a court proceedings to take effect the way that a will does (people who think that they can avoid probate by having a will are fundamentally mistaken, probate is a court proceeding necessary to give a will legal effect).</p>


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<p>Only some of these methods of making a secret gift work if the estate is subject to estate taxes which requires disclosures to be made on gift and estate tax returns of all transfers taking effect at death (something that can be circumvented by making a transfer during life that is not reportable during life because it is within some exception to gift taxation).</p>
<p>NOTES:</p>
<p>[1] Usually a will has to be shown to the two witnesses to a will, unless it is executed under the recently repealed Louisiana law allowing for a &quot;mystic will&quot; which has seven people witness the envelope but no one witness the will itself prior to death. Of course, holographic wills, substantially in the handwriting of the person writing them, don't have to be witnessed at all.</p>


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Question Title: Can a need assessment for the purpose of the Care Act 2014 be done privately?

Question Body: <p>Generally they are required to be performed by a local authority. However, for NHS medical assessments, there is a statutory right to choose where the period of time that has passed since the referral has been made exceeds a certain length. Under the right-to-choose, the NHS must still finance the private assessment that would be undertaken under the right-to-choose.</p>
<p>Regardless of whether the LA must compensate the cost of a privately procured need assessment, legally, should it recognise the outcome of a privately procured assessment undertaken for the purpose of establishing need for the care act 2014 if one is arranged?</p>


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Answer 1: <p>Legally, a local authority is not required to recognize the outcome of a privately procured assessment undertaken for the purpose of establishing need for the Care Act 2014.</p>
<p>The local authority has a duty to complete its own assessment under the Act and may not simply accept a privately procured assessment as valid. However, a privately procured assessment may provide useful information that can be taken into consideration by the local authority in carrying out its own assessment.</p>
<p>Ultimately, it is up to the local authority to determine the weight and relevance of the information provided by privately procured assessments.</p>


Tags: united-kingdom, duty-of-care, local-authority


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Question Title: Do anti discrimination laws bind overseas service providers when the victims of their discrimination are in the jurisdiction of the law?

Question Body: <p>Bob lives in Birmingham or perhaps Madrid. He joins an online club operated by an overseas entity based in Peru, or perhaps Chicago.</p>
<p>They incidentally find out that he is black and promptly cancel his membership in the group without notice, explaining that they don’t take kindly to his black likes. Legally speaking, if not practically, does Bob have recourse under the British or European anti discrimination laws as he would if the operator were European or British, or if the matter were one of data protection?</p>


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Answer 1: <p>Based on the information provided, it is unlikely that Bob has recourse under British or European anti-discrimination laws in this scenario.</p>
<p>Firstly, the overseas entity may not fall under the jurisdiction of the UK or EU anti-discrimination laws. The laws generally apply to entities operating within the UK or EU, and it is unclear from the information provided whether the overseas entity has any operations or presence within these regions.</p>
<p>Moreover, even if the overseas entity was subject to UK or EU anti-discrimination laws, there may be limits on their extra-territorial application. For example, the UK Equality Act 2010 may only apply to acts of discrimination that have a &quot;sufficiently close connection&quot; with the UK.</p>


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<p>However, Bob may have some recourse under the overseas entity's internal policies or terms of service. If the entity's cancellation of Bob's membership was in violation of their own policies or terms, he may have a contractual claim against them.</p>
<p>Additionally, depending on the circumstances, there may be data protection issues at play. If the overseas entity obtained and utilized Bob's personal information (including his race) unlawfully or in breach of data protection laws, he may have a claim against them.</p>


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Question Title: Who gets to see the will when somebody dies

Question Body: <p>When somebody dies, who has the right to see the will? I am thinking the executor does and all the beneficiaries do. Does a contingent beneficiary have the right to see the will? Is there anybody else who has the right to see the will?</p>


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Answer 1: <p>Normally a will lodged with the Surrogate's Court is a matter of public record.</p>
<blockquote>
<p>The Superior Court shall have jurisdiction to compel discovery as to
the existence or whereabouts of any paper purporting to be a will of
any decedent who died a resident of the county, which has not been
offered for probate, and to require the paper to be lodged with the
surrogate of the county for probate.</p>
</blockquote>
<p>N.J. Stat. § 3B:3-29.</p>
<p>If a will has been registered in the New Jersey Will registry then a search of the registry in furtherance of the goal of locating a will is allowed for interested persons:</p>
<blockquote>
<p>Only interested persons and their representatives may conduct a search
of the registry. As used in this act, &quot;interested persons&quot; means
children, spouses, potential heirs, devisees, fiduciaries, creditors,
beneficiaries and any others having a property right in or claim


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children, spouses, potential heirs, devisees, fiduciaries, creditors,
beneficiaries and any others having a property right in or claim
against a trust estate or the estate of a decedent which may be
affected by the proceeding.</p>
</blockquote>
<p><a href="https://casetext.com/statute/new-jersey-statutes/title-3b-administration-of-estates-decedents-and-others/chapter-3b3-individuals-competent-to-make-a-will-and-appoint-a-testamentary-guardian/section-3b3-21-creation-maintenance-of-will-registry-fees" rel="nofollow noreferrer">N.J. Stat. § 3B:3-2.1</a>.</p>


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Answer 2: <p>This would depend on the country.  In New Zealand, the executor is not legally obliged to allow beneficiaries to see the will.</p>
<p>Once probate has been granted then it becomes public record and anyone can apply to the High Court to view it.</p>
<p>From <a href="https://www.cab.org.nz/article/KB00000852" rel="nofollow noreferrer">Citizens Advice Bureau</a></p>


Tags: united-states, new-jersey


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Question Title: Tradesman billing unreasonable fees

Question Body: <p>What prevents a tradesman from billing a client an unreasonable fee after the work is done? For example, a plumber may quote provisionally £100 verbally (or not even give a cost estimate as is common here in the UK), do the work, then invoice £10,000 for a minor job that took maybe an hour. What consumer protections are in place for a case like this?</p>


Answer 1: <h2>The law</h2>
<p>It’s a long-standing tenent of contract law that, where a price has not been agreed, a reasonable price is to be paid.</p>


Tags: united-kingdom, consumer-protection


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Question Title: Is the use of the singular &quot;they/their/them&quot; in legal writing and legislative drafting recognized to be acceptable / appropriate?

Question Body: <p>Is use of the singular &quot;they/their/them&quot; in legal writing and/or legislative drafting recognized to be acceptable / appropriate?</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>
<h3>Guidance from the Government of Canada</h3>
<p>Yes. The Government of Canada's guide on legislative drafting <a href="https://www.justice.gc.ca/eng/rp-pr/csj-sjc/legis-redact/legistics/p1p15.html" rel="nofollow noreferrer">has a section on gender-neutral language</a>. It emphasizes that &quot;gender-specific language should not be used in legislation.&quot; The first-listed alternative strategy (alongside others) is to &quot;use the singular 'they' and its other grammatical forms... to refer to indefinite pronouns and singular nouns.&quot;</p>


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<p>It acknowledges that &quot;[i]n the past, the masculine pronoun was commonly used in the English language to signify the non-specific 'he or she'&quot; but that &quot;[i]t is now generally well-accepted that gender-specific language should only be used for references to persons of one gender or the other.&quot;</p>
<p>One example from the guide:</p>
<blockquote>
<p>Every taxpayer shall file their tax return no later than April 30 of the year following the year in which they earned the income on which they are paying taxes.</p>
</blockquote>
<h3>Guidance from the British Columbia Law Institute</h3>
<p>In the guide, <a href="https://www.bcli.org/wp-content/uploads/Gender-Diversity-in-Legal-Writing-1.pdf" rel="nofollow noreferrer"><em>Gender Diversity in Legal Writing</em></a>, the institute explains:</p>
<blockquote>


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<blockquote>
<p>Canadian lawyers no longer write law, or write about the law, as if it only applies to men of European descent who own real property. ... Language and the law continue to evolve, moving towards even more inclusive language in legal writing. ... The highest levels of our profession have recognized that gender inclusivity is a matter of justice and professionalism. The British Columbia courts require all counsel to identify themselves and their pronouns. ... We have adopted gender-inclusive ways of referring to people, in particular the use of “they” as a singular pronoun.</p>
</blockquote>
<p>The guide says:</p>
<blockquote>
<p>They/them is also used as a gender non-specific singular pronoun when a writer does not know a person’s pronouns.</p>
</blockquote>
<blockquote>
<p>Just like the pronoun “you,” they/them can be used in singular or plural forms.</p>
</blockquote>
<p>One example it provides:</p>
<blockquote>


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</blockquote>
<blockquote>
<p>Just like the pronoun “you,” they/them can be used in singular or plural forms.</p>
</blockquote>
<p>One example it provides:</p>
<blockquote>
<p>Minister Williams said they misspoke when they said their budget was “balanced to the last penny.”</p>
</blockquote>
<h3>French text</h3>


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</blockquote>
<p>One example it provides:</p>
<blockquote>
<p>Minister Williams said they misspoke when they said their budget was “balanced to the last penny.”</p>
</blockquote>
<h3>French text</h3>
<p>It is slightly more complex to render French legal writing to be gender-inclusive, given that adjectives and third-person plural pronouns are gendered, but the Government of Canada's Translation Bureau <a href="https://www.noslangues-ourlanguages.gc.ca/en/ressources-resources/ecriture-inclusive-writing/principes-francais-guidelines-french-eng" rel="nofollow noreferrer">shares several resources</a>, including <a href="https://www.ccq.org/-/media/Project/Ccq/Ccq-Website/PDF/Communications/Autres/guide_de_redaction_epicene_final.pdf" rel="nofollow noreferrer">guidance from the Commission de la construction du Québec</a>, and <a href="https://cbr.cba.org/index.php/cbr/article/view/4660/4495" rel="nofollow noreferrer">an article from the Canadian Bar Review</a>.</p>


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Answer 2: <p>In U.S. law this is more a matter of style than a formal requirement. I have seen the singular &quot;they&quot; in contracts, but some contract drafters prefer to use the plural entirely, or to use a &quot;he or she&quot; construction.</p>
<p>The singular &quot;he&quot; to have the same meaning as the singular &quot;they&quot; used to be common place and is still often fond in statutes and contracts, but is gradually falling out of favor.</p>
<p>Legislative use is up to the legislators involved, for the most part. Judges aren't confused by it when it is used in that fashion.</p>


Tags: legal-writing, legislative-drafting


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Question Title: What law requires me to safeguard classified information?

Question Body: <p>Let's say I have a briefcase full of Top Secret papers, and I carelessly leave it on the table at Burger King and it falls into the wrong hands.</p>
<p><a href="https://www.law.cornell.edu/uscode/text/18/798" rel="nofollow noreferrer">18 U.S. Code § 798</a> apparently only applies if I &quot;knowingly and willfully&quot; provide the information to an unauthorized person.</p>
<p>My employer certainly expects me to safeguard the information I have been entrusted with, but does my negligence actually violate any law?</p>


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Answer 1: <p>Assuming all the required elements are met, <a href="https://www.law.cornell.edu/uscode/text/18/793" rel="noreferrer">18 U.S. Code § 793(f)(1)</a> would presumably apply:</p>
<blockquote>
<p><em>Gathering, transmitting or <strong>losing defense information</strong></em></p>
<p>(f)Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense</p>
<ul>
<li><p>(1) <strong>through gross negligence permits the same</strong> to be removed from its proper place of custody or delivered to anyone in violation of his trust, <strong>or to be lost, stolen</strong>, abstracted, or destroyed, or</p>
</li>


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</li>
<li><p>(2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.</p>
</li>
</ul>
</blockquote>


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Answer 2: <blockquote>
<p>My employer certainly expects me to safeguard the information I have
been entrusted with, but does my negligence actually violate any law?</p>
</blockquote>
<p>Normally contract law, in which you promise not to disclose information (even if not negligent) in a non-disclosure agreement signed between you and the employer, and trade secret statutes. *See, e.g., Colorado Rev. Statutes § <a href="https://law.justia.com/codes/colorado/2016/title-7/trade-secrets/article-74" rel="nofollow noreferrer">7-74-101</a>, et seq.</p>


Tags: united-states, confidentiality, secret


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Question Body: <p>In the USA, the Constitution requires a Census every ten years.  Anyone living here, legally or not, are required by law to respond to the Census, as well as be truthful.  This has been the case from from the first Census taken in 1790, till that last one in 2020.</p>
<p>The punishment has even been amended by Congress twice since its inception.</p>
<p>However, in the last 233 years, only a handful of people have been prosecuted for violating this law.  And of those, only two people have been convicted.  Of those two, one had the conviction overturned.</p>
<p>What is the point of one of the oldest laws, in which some people have cared enough to amend, but not enough to actually enforce?</p>
<p>This might be more of a political question, but maybe there is a legal reason?</p>


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<p>This might be more of a political question, but maybe there is a legal reason?</p>
<p>Edit:  I cant find exact numbers - and exact numbers might be impossible to get - but from some quick research, it sounds like not answering the census at all is fairly common.  From one post on the Census Bureau's website, the answer rate is over 60%.  And as far as I can tell, there is no numbers on people responding being complete or truthful.</p>


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Answer 1: <blockquote>
<p>However, in the last 233 years, only a handful of people have been prosecuted for violating this law.</p>
</blockquote>
<p>The census bureau has noticed that a more effective way to get everyone counted is to follow up in person if someone neglects to respond to the questionnaire.  Once they follow up and the person has responded, there's no longer a basis for prosecuting.</p>
<blockquote>
<p>What is the point of one of the oldest laws, in which some people have cared enough to amend, but not enough to actually enforce?</p>
</blockquote>
<p>The possibility of prosecution is presumably thought to increase the response rate even if virtually nobody is ever prosecuted.  The law also serves as a formal statement by congress that responding to the census is important, even if the executive doesn't prosecute people for failing to do so.</p>


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<p>Another thing to consider is that an element of the offense specified in <a href="https://www.law.cornell.edu/uscode/text/13/221" rel="noreferrer">13 USC 221</a> is refusal or <em>willful</em> neglect.  Without evidence of an affirmative refusal to respond, the prosecutor would need evidence of willfulness, which goes to state of mind, and that is notoriously difficult to prove.  Any defendant who claims to have intended to respond but for chronic forgetfulness would introduce reasonable doubt unless the prosecutor had something to show that the defendant intentionally refrained from responding.</p>


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Question Title: Does the renaming of the German &#39;ebay Kleinanzeigen&#39; to &#39;Kleinanzeigen&#39; mean they loose any trademark to their name?


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Question Body: <p>So ebay Kleinanzeigen is a company that owns a website for classified ads. People can post classified ads there and search the website to buy things from classified ads. I suppose ebay has the exact same business model in various other countries. This is the German branch. Now the German word 'Kleinanzeige' means exactly classified ad.</p>


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<p>Recently they renamed both their website and the company itself to just 'Kleinanzeigen'. To me this looks like a classic example of a trademark for common words as in <a href="https://law.stackexchange.com/questions/18625/what-happens-if-a-brand-or-companys-name-is-a-common-everyday-word?rq=1">this</a> or <a href="https://law.stackexchange.com/questions/76855/can-you-trademark-a-word-in-a-dictionary">this</a> question and in their case this seems to be exactly a generic term. The name of the company is exactly what they sell. To me this means they shouldn't be able to get any trademark or copyright for that name. Anyone else offering Kleinanzeigen in Germany can just call them Kleinanzeigen because that is what they are.</p>
<p>Is that what happened here or do they have some other way to protect their company name? It seems very strange to me to deliberately rename the company to lose any trademark associated with it.</p>


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Answer 1: <p>There is already any number of other pages that are named kleinanzeigen, just with different top level domains (probably sprung into existence after the plan for the renaming became public). But if you are a Website operating in Germany that owns the kleinanzeigen.de domain, that probably does not worry you too much (you could probably fight others over the use of the word for a specific purpose such as a classifieds website, because sometimes specific uses might be protected; but that would be an uphill battle, since as pointed out the name is the literal description of the business model).</p>


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<p>What might worry you is that somebody is tricked into confusing kleinanzeigen.eu or kleinanzeigen.biz with your valuable property. The way to avoid that is to register a &quot;<a href="https://de.wikipedia.org/wiki/Wort-Bild-Marke" rel="nofollow noreferrer">Wort-Bild-Marke</a>&quot;, a combination of your name with one or more distinctive graphic elements. You will notice that the &quot;kleinanzeigen&quot; name on the website is rendered in a specific font and is preceded by what on closer inspection turns out to be a stylized letter &quot;k&quot;. That is something that can be protected by law. Nobody else is allowed to be too close to that design, so that minimizes the danger that visitors confuse a competitor's page with the &quot;original&quot; kleinanzeigen page.</p>


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<p>Since the question alludes to eBay's business, kleinanzeigen is no longer a part of eBay - for some three years now they belong to Adevinta, a Norwegian conglomerate that runs classified portals in various countries. So keeping &quot;ebay&quot; in their name was not really an option (and all alternatives to &quot;kleinanzeigen&quot; were probably worse).</p>


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Question Title: Is it common for software licenses to, as written, technically prohibit normal and expected use of the software?


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Question Body: <p>In <a href="https://law.stackexchange.com/q/92557">Is distributing software that makes modifications to video games legal?</a> an example snippet of a video game license is given, which reads:</p>
<blockquote>
<p>You may not copy the Software (except as specifically permitted herein) and, except as expressly permitted by law, you may not modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Software.</p>
</blockquote>


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</blockquote>
<p>Presumably &quot;as specifically permitted herein&quot; gives you the right to <em>copy</em> the software to your computer and into memory to run it. But no such exception seems to be given allowing you to &quot;modify&quot; or &quot;translate&quot; the software where technically necessary. I'm not aware of any common computing platform where loading an application does <em>not</em> usually involve &quot;modifying&quot; it (to link it together in memory with required system dynamic libraries). And similarly, &quot;translating&quot; running software (from instruction set architecture instructions to some internal representation of micro-operations inside the CPU) is technically necessary for execution on almost any real computer. And setting a global variable in an anonymously-mapped page in memory will create a derivative work; the software almost certainly creates ephemeral derivative works of itself in normal operation.</p>


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<p>Is it common for software license agreements to be so poorly drafted that, if taken literally, they fail to usefully license the software as would be needed for execution on real machines? Do courts tend to expand them to grant the necessary permissions after all, to fulfill the intent of the agreement? Or do they tend to read them restrictively, giving developers a free pass to extract damages from any ordinary users they don't like? Is there a statute about this that &quot;expressly permits&quot; people to actually use software they license?</p>


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Answer 1: <p>There is also the part that says &quot;except as expressly permitted by law&quot;. In the USA, you are allowed to run the software. This means the operating system making the copy that transfers the software from your hard drive to the RAM of the computer, and all necessary changes there. And this includes modifications to relocate the software, or to protect it against certain attacks by hackers, and I'm confident that Apple checked that it includes translating x86 machine code to ARM machine code and store the translated copy together with the original. Similar things have been done already around 2000 or so, and no software manufacturer has ever complained.</p>


Tags: united-states, copyright, software, licensing


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Question Title: Is the Howey test pertaining to the source of profits or the receiving of profits?

Question Body: <p>The Howey test states:</p>
<p>&quot;investment of money in a common enterprise with a reasonable expectation of profits to be derived from the efforts of others&quot;</p>
<p>Is this &quot;profits to be derived from the efforts of others&quot; pertaining to the source of the money (imagine the money coming from people not including yourself thus from the efforts of others) or the receiving of profits (so it would mean the money source could be other people. As long as you yourself are NOT an active participant and are NOT showing some level of work to acquire the profits in some kind of work or competition of skill or luck regardless of the source of the money you're participating to acquire.)</p>
<p>Thank you.</p>


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Answer 1: <p>The <em>Howey</em> test is a test of what constitutes an &quot;investment contract&quot;, which is a residual form of security subject to the federal Securities Act of 1933 and the federal Securities Exchange Act of 1934. There are also many <em>per se</em> securities which automatically qualify without analysis under that test.</p>
<p>An arrangement that merely constitutes active participation in self-employment is not a security, even if it flows from activities of others (like customers paying money) and even if you must invest some money (e.g. a buy-in price to become a partner in a law firm).</p>
<p>For example, if you take over a one man sole proprietorship landscaping business from its previous owner, the business purchased is not a security, because the business you are purchasing does not have you profiting from work done by other people, you seeking to make money from your own work.</p>


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<p>But, if offered to pay the owner of the sole proprietorship landscaping business $100,000 in exchange for 50% of his future profits, without having to work in the business yourself, that would be an investment contract that constitutes a security, for purposes of federal securities laws, under <em>Howey</em>.</p>


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Question Title: Can a judge force/require laywers to sign declarations/pledges?

Question Body: <p>I read <a href="https://www.reuters.com/legal/transactional/us-judge-orders-lawyers-sign-ai-pledge-warning-they-make-stuff-up-2023-05-31/" rel="noreferrer">this story</a> where a US judge is forcing lawyers in his court to sign a pledge saying they did not use ChatGPT to generate filings without being checked by a human.</p>
<p>While that's a very reasonable thing, I am wondering where that authority comes from, or what the limits are. Can a US judge require lawyers in their court to sign other types of pledges?</p>
<p>What if they refuse?</p>
<p>What if they don't agree with it or feel it violates a freedom?</p>
<p>Is this similar to a judge's authority to charge people with contempt which also has no recourse?</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>In Canada, this would fall within a court's inherent jurisdiction to control its own processes. For example (in another context):</p>
<blockquote>
<p>Based on a reading of the authorities, I am able to conclude that the Courts have the inherent jurisdiction to require parties and their solicitors to enter into undertakings regarding the use of documents produced for discovery.</p>
<p>(<a href="https://www.canlii.org/en/on/onsc/doc/1979/1979canlii1673/1979canlii1673.html" rel="noreferrer"><em>Anderson v. Anderson et al.</em>, 1979 CanLII 1673 (ON SC)</a>)</p>
</blockquote>


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<p>(<a href="https://www.canlii.org/en/on/onsc/doc/1979/1979canlii1673/1979canlii1673.html" rel="noreferrer"><em>Anderson v. Anderson et al.</em>, 1979 CanLII 1673 (ON SC)</a>)</p>
</blockquote>
<p>The inherent jurisdiction of a court to control its own processes extends to controlling the conduct of lawyers, being officers of the court (see e.g. <a href="https://canlii.ca/t/fwrtg#par8" rel="noreferrer"><em>R. v. Faulkner</em>, 2013 ONSC 1824, paragraphs 8-9</a>).</p>
<p>If the lawyer or their client believes a particular exercise of this inherent jurisdiction is inconsistent with the <em>Canadian Charter of Rights and Freedoms</em>, they could challenge it on those grounds. The court's order as such is not subject to the <em>Charter</em>, but the common law governing its issuance is subject to <em>Charter</em> scrutiny. See generally <em>Dagenais v. Canadian Broadcasting Corp.</em>, [1994] 3 S.C.R. 835.</p>


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Answer 2: <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>An attorney is required to tell the truth in court even if not under oath, and can be disbarred for failing to do so. For most practical purposes, an attorney is always under oath anyway.</p>
<p>If there are procedural matters in a particular case where there are factual issues, attorneys can be required to provide facts that substantiate a lack of wrong doing on pain of having wrongdoing assumed. This is part of the general authority of a judge (sometimes called the judge's &quot;inherent authority&quot;) to supervise proceedings in that judge's courtroom.</p>


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<p>But, the judge does not have the authority require statements unrelated to cases pending before him. A judge can't, for example, require an attorney to pledge support for a political candidate or a sports team.</p>


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Question Title: If I create a fictional brand name in a movie script and then copyright the script can the fictional brand name be considered my trademark?

Question Body: <p>Let's say I write a movie script. The movie gets made and it does well. In the script a fictional brand exists with a specific, un-trademarked name. Now let's say someone created a real brand that had the same name as my fictional brand and offered the same product; would I have grounds to sue?</p>


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Answer 1: <blockquote>
<p>If I create a fictional brand name in a movie script and then
copyright the script can the fictional brand name be considered my
trademark?</p>
</blockquote>
<p>No. The fictional brand name (which I often call a &quot;fakemark&quot; in this context) cannot become a trademark from the movie or its script alone.</p>
<p>To register a trademark federally under the Lanham Act you need to describe a novel mark and you have to show that it has been used in interstate and/or international commerce. (You can file an intent to use application to hold that trademark for a bit, but it isn't final until the proof of use in commerce application is filed.)</p>


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<p>There are state common law trademarks, and evidence from state filings can help to prove a state common law trademark filing, but this just postpones the timing of showing proof of use in commerce sufficient to establish trademark protections prior to the time of infringement. In a state common law trademark you present proof in the court case alleging infringement and not to a government agency at the time you start claiming the trademark exists.</p>
<p>Now, if you created a spin-off real life business based upon a fake business in a movie, like Bubba Gump's Shrimp Company, at that point, you could get trademark protection for it. But, merely having a brand in a movie that is never used in actual commerce does not established a trademark.</p>


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Question Body: <p>While reading about the trial of <a href="https://en.wikipedia.org/wiki/Hans_Reiser#Recovery_of_Nina%27s_body,_and_sentencing" rel="noreferrer">Hans Reiser</a> I came across this peculiar sentence:</p>
<blockquote>
<p>On Monday, July 7, 2008, Reiser led police to Nina's shallow grave in the Oakland Hills. <strong>Reiser's attorney, William Du Bois, who was handcuffed to Reiser</strong> and accompanied by a heavy police guard to the site, said that the remains were found buried on the side of a hill […]</p>
</blockquote>
<p><sup>(Originally reported by <a href="https://www.sfgate.com/news/article/Wife-killer-leads-cops-to-body-in-deal-with-D-A-3277626.php" rel="noreferrer">SFGate</a>)</sup></p>
<p>I find this very strange for multiple reasons:</p>
<ul>
<li>The attorney is not legally responsible for the defendant's safety or security.</li>
<li>The attorney is free to leave at any time.</li>


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<p>I find this very strange for multiple reasons:</p>
<ul>
<li>The attorney is not legally responsible for the defendant's safety or security.</li>
<li>The attorney is free to leave at any time.</li>
<li>The attorney is not required to be armed and can not be expected to defend himself from a violent defendant</li>
<li>…nor can he be expected to physically restrain the defendant if necessary.</li>
<li>If the <em>heavy police guard</em> has to intervene, having an innocent civilian chained to the target must make their job much more difficult in case the defendant has to be subdued by force.</li>
</ul>
<p>Why and when would this be standard practice, and who would order that? Is it something that the Judge would order, or would the attorney himself have to suggest it?<sup>†</sup></p>


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</ul>
<p>Why and when would this be standard practice, and who would order that? Is it something that the Judge would order, or would the attorney himself have to suggest it?<sup>†</sup></p>
<p><sup>† Unfortunately we can not ask him personally since, while researching the question, I found that he recently <a href="https://www.acbanet.org/2023/02/17/in-memory-william-bill-dubois/" rel="noreferrer">passed away</a>.</sup></p>


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Answer 1: <p>My impression, and the plausible explanation in the absence of the actual facts, is that this was something that the attorney agreed to, in order to allow a skittish client to reveal information pursuant to a favorable plea agreement.</p>
<p>The police probably insisted that the client be handcuffed to someone while doing this to prevent the client from fleeing. The attorney probably offered to do the job instead of a police officer, to be able to provide advice to his client and keep his client calm enough to do it, which might not have happened (sacrificing the favorable plea deal that the attorney negotiated) if someone else were in that role.</p>


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Answer 2: <p>Preliminary answer:</p>
<p>According to the <a href="https://www.google.co.uk/amp/s/www.eastbaytimes.com/2008/07/07/hans-reiser-leads-police-to-body-in-oakland-hills/amp/" rel="noreferrer">East Bay Times</a>...</p>
<blockquote>
<p>Despite the presence of officers, Du Bois said he was handcuffed to his client.</p>
<p>“I guess they were afraid he would run,” he said.</p>
</blockquote>


Tags: united-states, criminal-procedure


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Question Title: Is there liablility if Alice startles Bob and Bob damages something?

Question Body: <p>The other day I saw a random clip on YouTube, where Alice sneaks up to Bob, who is vacuuming, and scares Bob. Bob gets startled and swings the vacuum into (Bob's own) expensive television, breaking the TV in the process.</p>
<p>It got me thinking if Alice could be liable for damages here and what the respective law would be.</p>
<p>Supplemental: Would anything change, if the TV was actually owned by Alice?</p>


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Answer 1: <p>I will assume that whatever Alice did to startle Bob was a breach of a duty that she owed to Bob, in order to get to what I see as the more interesting aspect of the question: whether Bob's intervening act removes Alice's liability for the breaking of the television. There are certainly scenarios where Alice might have startled Bob without even breaching a duty, but in that case the analysis would end there.</p>
<h3>A startle reaction will almost never sever the chain of legal causation</h3>
<p>In negligence, Alice is held liable for harm that is reasonably foreseeable as a result of Alice's breach of a duty. One of the elements of a successful negligence claim is <em>causation</em>: Alice is not liable for harm that is too <em>remote</em> from her breach.</p>
<blockquote>


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<blockquote>
<p>On its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss. The plaintiff must also establish that the defendant’s negligence (breach of the standard of care) caused the injury. That link is causation.<sup>1</sup></p>
<p>(<a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/9992/index.do" rel="noreferrer">Clements v. Clements, 2012 SCC 32, paragraph 6</a>)</p>
</blockquote>
<p>Bob's startle response would almost certainly be considered a foreseeable reaction, and thus, not sufficient to separate Alice from the breaking of the television.</p>
<blockquote>
<p>An <em>instinctive human reaction</em>, or any non-negligent human action in the chain of causation will almost never break the chain of causation, because such reactions will be held foreseeable; and even if they are not, the precise chain of events leading to an accident need not be foreseeable.</p>


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<p>(Ken Cooper‑Stephenson, Personal Injury Damages in Canada (Carswell, 1996))</p>
</blockquote>
<p>See also The Restatement of Torts (Second), § 447, which says that an intervening act does not remove the defendant's liability if: &quot;(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or (c) the intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent.&quot;</p>


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<p>&quot;[I]t is the general nature of the intervening acts and the accompanying risk of harm that needs to be reasonably foreseeable. Legal causation does not require that the accused must objectively foresee the precise future consequences of their conduct.&quot; (<a href="https://canlii.ca/t/frczg#par38" rel="noreferrer"><em>R. v. Maybin</em>, 2012 SCC 24</a>).</p>
<p>Foreseeability does not require that the intervening action be <em>probable</em>; it only requires that it would not be brushed aside as &quot;far-fetched.&quot;</p>
<blockquote>
<p>The degree of probability that would satisfy the reasonable foreseeability requirement was described in <em>The Wagon Mound (No. 2)</em> as a &quot;real risk&quot;, i.e. &quot;one which would occur to the mind of a reasonable man in the position of the defendan[t] ... and which <strong>he would not brush aside as far-fetched</strong>&quot;</p>


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<p>(<a href="https://canlii.ca/t/1wz6f#par13" rel="noreferrer"><em>Mustapha v. Culligan of Canada Ltd.</em>, 2008 SCC 27, paragraph 13</a>).</p>
</blockquote>
<p>Examples of intervening acts held to be reasonably foreseeable:</p>
<ul>


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<p>Examples of intervening acts held to be reasonably foreseeable:</p>
<ul>
<li><em>Haynes v. Harwood</em> [1935] 1 K.B. 146. A carriage owner had left a two-horse carriage unattended on a busy street. The judge accepted evidence from an independent observer that two boys had come along and one of them threw a stone at the horses and the horses bolted along the street (these boys were not before the court as co-defendants; nothing more is said of them). A constable managed to stop the horses, but was injured in the process. The carriage owner was liable in negligence: a reasonable person should have foreseen that the horses might get loose and someone be injured while trying to stop them. The court said, &quot;<strong>it is not necessary to show that this particular accident and this particular damage were probable</strong>; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act.&quot;</li>
</ul>


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</ul>
<h3>Foreseeability here does not have its colloquial meaning</h3>
<p><a href="https://law.stackexchange.com/a/92946/46948">Greendrake's answer</a> says that &quot;whereas Bob's shock is foreseeable, I pretty much doubt that him breaking the TV is.&quot; In my view, this takes too colloquial a view of foreseeability. As Hart and Honoré say in <em>Causation in the Law</em>, 2nd Ed. (1985):</p>
<blockquote>
<p>... in one sense everything is foreseeable, in another nothing. The consequences of negligence are almost invariably surprises. All depends on the detail with which the harm is described. ... there will always be some details of the recoverable harm which are not foreseeable.</p>


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<p>... the fact that harm described by reference to certain details is not foreseeable does not render the harm, <em>more broadly described</em>, unforeseeable. ... If we have learned from experience to expect a 'rainstorm' on seeing dark clouds, then the rainstorm was foreseeable even if, when it occurs, it has other characteristics (e.g. lasted two hours, covered an area of 40 sq. miles) which we could not foresee but which might appear, <em>ex post facto</em>, in a more specific description of it.</p>
</blockquote>
<p>Of course, foreseeability is a question of fact, and I acknowledge that a finder of fact might very well conclude that swinging a vacuum is not within a class of actions that might be anticipated by a reasonable person. While I disagree with Greendrake's analysis and conclusion, the contrast with my answer helps highlight precisely where the issue would be if this were to be litigated.</p>
<hr />


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<hr />
<p><sup>1. Note the terminology. The <em>breach</em> of the standard of care is the <em>negligence</em>. But <em>liability</em> only follows when the negligence causes harm. This is contrary to the framing in <a href="https://law.stackexchange.com/a/92939/46948">Dale M's answer</a>, which says, &quot;Alice was negligent if her actions caused damage to Bob’s TV,&quot; and that &quot;[i]f we are talking about Alice’s TV then there is no negligence because Bob has suffered no damage.&quot; That language conflates negligence (the breach) with liability (breach plus causation).</sup></p>


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Answer 2: <p>I actually remember seeing a similar court case on TV. I'm pretty sure it was Judge Judy, as she went off on the friend, berating about being childish, irresponsible, and was lucky his friend didn't have worse injuries. I don't remember the case exactly, but it goes something like this:</p>
<p>A mechanic was working in his home's garage.  The mechanic was working on fixing something and very focused.  His friend had arrived unannounced and saw this and decided to jump scare him.  His friend snuck up behind the mechanic and and yelled.  The friend confirmed this is what happened in his testimony.  The scare caused the mechanic to flinch and cut his hand deeply on a sharp piece of metal he was working on.  This wound required him to be taken to the emergency room, get stitches, and lose time working at his full time job, due to the injury.  The mechanic sued his friend for damages.</p>


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<p>The judge said the visitor is liable, as his <em>intent</em> was to provoke the reaction which caused the injury.  Had it been purely accidental, there would have been no intent and therefore, no liability.</p>


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Answer 3: <h2>Possibly</h2>
<p>The relevant law is <a href="https://en.wikipedia.org/wiki/Negligence" rel="noreferrer">negligence</a>.</p>
<blockquote>
<p>Most jurisdictions say that there are four elements to a negligence action:</p>
<ol>
<li><p>duty: the defendant has a duty to others, including the plaintiff, to exercise reasonable care,</p>
</li>
<li><p>breach: the defendant breaches that duty through an act or culpable omission,</p>
</li>
<li><p>damages: as a result of that act or omission, the plaintiff suffers an injury, and</p>
</li>
<li><p>causation: the injury to the plaintiff is a reasonably foreseeable consequence of the defendant's act or omission.</p>
</li>
</ol>
</blockquote>
<p>Arguably, Alice was negligent if her actions caused damage to Bob’s TV.</p>
<p>If we are talking about Alice’s TV then there is no negligence because Bob has suffered no damage.</p>


Tags: liability, negligence, criminal-damage


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Question Title: Is not disclosing your address a reason alone to be remanded into prison?

Question Body: <p>What do you do if your duty solicitor recommended you to self represent but the judge / court basically ignores the testimony and continue to abuse, exploit and invert language and its meaning/origin backed up by &quot;laws&quot; to put pressure onto someone who is innocent. Why are so many laws designed to intentionally create &quot;criminals&quot;? Those who have the courage to speak out and expose abuse, corruption and crime seem to be more and more considered and labeled a danger or even a terrorist to public safety and health.</p>


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Answer 1: <p><strong>No.</strong></p>
<p>Refusing to tell the address <strong>alone</strong> is not a reason to detain somebody. But there are situations where the authorities can demand that a person identifies himself or herself, including such details as the address (or lack of a permanent residency). In such a situation, failure to identify yourself can get you locked up.</p>
<hr />
<p>Also, the tone of your posting seems to question the legitimacy of the UK government and legal system as a whole. That <em>is</em> a box you're putting yourself into, and the company you find there is not very pleasant.</p>


Tags: united-kingdom, criminal-law, evidence, governmental-liability, abuse


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Question Title: Use an image under GNU/GPL in a commercial application

Question Body: <p>We are currently developing a commercial application. We found some images(icons) which are under GNU/GPL license.</p>

<p>I'm not an expert in this kind of things, but I was wondering if it is legal to use the image inside our commercial application(which is definitely not under GNU/GPL license).</p>

<p>For what I read <a href="https://en.wikipedia.org/wiki/GNU_General_Public_License" rel="nofollow">here</a>, some obligation are induced when we modify the file. But in our case, we use it in a bigger application.</p>

<p>So:</p>

<ol>
<li>Is it legal to use it?</li>
<li>Is there something we should absolutely do?(Like indication in the license of our application that some parts are under GPL/GNU? Or indicate where this icon is coming from?)</li>
</ol>


Answer 1: <blockquote>
  <p>Is it legal to use it?</p>
</blockquote>

<p>Well, of course it is. </p>


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Answer 1: <blockquote>
  <p>Is it legal to use it?</p>
</blockquote>

<p>Well, of course it is. </p>

<blockquote>
  <p>Is there something we should absolutely do?(Like indication in the license of our application that some parts are under GPL/GNU? Or indicate where this icon is coming from?)</p>
</blockquote>

<p>I kind of find it strange that the images aren't licensed under a more media friendly license, such as Creative Commons licenses, which are kind of intended for that stuff. The GPL is more intended for source code.</p>

<p>By using the image, you'd have to force your entire application under the GPL. This is what the GPL's copyleft clause is known for. I'm not sure you would like to do that, as your entire application would have to be licensed under the GPL.</p>

<p>Honestly, I would try to avoid the GPL anywhere you can. If you can find a similar icon under Creative Commons licenses, you'd be in a much better position.</p>


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<p>Honestly, I would try to avoid the GPL anywhere you can. If you can find a similar icon under Creative Commons licenses, you'd be in a much better position.</p>


Answer 2: <p>You must follow the terms of the GPL whenever you distribute the file, whether you modify it or not. The file is copyright and you infringe the copyright holder's rights if you distribute it other than under the terms of the GPL.</p>

<p>I'm not going to attempt to summarize the terms of the GPL here, as I don't want to get it wrong and summaries are widely available elsewhere.</p>


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Answer 3: <p>Since nobody seems to have even touched on this detail but this is popping up in search results...</p>
<p>I'm not a lawyer, but my understanding, based on what I've read in free game development resource communities, is that, as long as you don't combine the image and non-GPLed stuff in the same file, it counts as aggregating the image and code, not making one a derivative work of the other.</p>
<p>(The most common context I've seen this in was people wondering whether it was legal to use GPLed code and CC-BY-SA art assets in the same project.)</p>
<p>In other words, as long as your GPLed image is a separate file from your non-GPLed stuff, it's legal for the same reason that it's legal to distribute a magazine CD or DVD containing both GPLed programs and programs under GPL-incompatible EULAs, even if you have a pretty Autorun launcher menu that can start either one.</p>


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<p>Aside from that, you'll want to include proper attribution in your About dialog, manual, or wherever your standard place for that is.</p>
<p>(A good rule of thumb is to include the work's name, creator's name, a link to wherever the version you are using was originally posted, and a mention of the license under which you're using it. (ie. &quot;GNU GPL 2.0-only&quot;, &quot;GNU GPL 2.0-or-later&quot;, &quot;GNU GPL 3.0-only&quot;, &quot;GNU GPL 3.0-or-later&quot;, etc.))</p>


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Answer 4: <p>Without any serious precautions, including these files means that you have to publish your complete application under the GPL license.</p>
<p>With some serious precautions, including these files means that you can be taken to court for copyright infringement, and you may win or you may lose, but it will cost you. And if this becomes public, it will damage your reputation.</p>
<p>The very simple method is to either contact the copyright holder and offer them some money for a license that allows you to include these images, if you want these images and no others, or to go to a site that specialises in providing icons or images for that kind of purposes. Either way is likely cheaper than talking to a lawyer about this for an hour.</p>


Tags: copyright, licensing, gpl


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Question Title: Which of these two possible readings of the Twenty-Seventh Amendment is the correct one?


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Question Body: <p>The <a href="https://en.wikipedia.org/wiki/Twenty-seventh_Amendment_to_the_United_States_Constitution" rel="nofollow noreferrer">27th Amendment to the Constitution of the United States</a> stipulates that:</p>
<blockquote>
<p>No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.</p>
</blockquote>
<p>This was meant to restrict members of Congress from voting themselves free money, by forcing them to win reelection before they could take advantage of raises in pay, and is unambiguous in cases where a law simply changes, up front, the pay of members of Congress; once the law to change their pay has been passed, they have to wait until after the next general election before the change in pay can take effect.</p>


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<p>However, the text of the amendment does not specify whether the requirement for &quot;an election of Representatives [to] have intervened&quot; requires</p>
<ul>
<li>that changes in Congressional pay not come into effect until the next election of Representatives <em>following the passage of the law that alters Congressional pay</em>,</li>
</ul>
<p>or whether it instead requires</p>
<ul>
<li>that changes in Congressional pay not come into effect until the next election of Representatives <em>following the event that triggers the law's alteration of Congressional pay</em>.</li>
</ul>
<p>For laws that simply straight-up change the pay of members of Congress, there is no ambiguity, as the passage of the law <em>is</em> the event that causes it to alter Congressional pay, making the two readings equivalent.</p>
<p>However, one could easily imagine a law where these two readings <em>aren't</em> equivalent.</p>


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<p>However, one could easily imagine a law where these two readings <em>aren't</em> equivalent.</p>
<p>For example, a law might be passed saying that, <a href="https://politics.stackexchange.com/questions/2087/are-the-president-of-the-united-states-and-members-of-congress-considered-essent/2096#comment144502_2096">if Congress can't agree on a budget in time to prevent a government shutdown, they forfeit their pay for the duration of the shutdown</a>; in such a case...</p>
<ul>
<li>The first reading would merely prevent the law from coming into effect until after the first election of Representatives <em>following its passage</em>.  After this point, the law could, without violating amendment #27, immediately forfeit Congressional pay right from the start of a government shutdown, without needing to wait for further elections.</li>
</ul>
<p>In contrast...</p>
<ul>


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</ul>
<p>In contrast...</p>
<ul>
<li>The second reading would, for each shutdown, prevent Congressional pay from being forfeited until after the first election of Representatives <em>following the start of the shutdown</em> (as, for this hypothetical law, the triggering event for the loss of Congressmembers' pay - the event that actually <em>causes</em> their pay to be cut off - is the occurrence of a government shutdown), which would, as government shutdowns very rarely drag on all the way until the next election, render such a law effectively toothless.</li>
</ul>
<p>Which of these readings of the 27th Amendment is the correct one?  Has this even been decided?</p>


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Answer 1: <p>The amendment restricts when a change in law takes effect. The amendment does not restrict all laws, just those &quot;varying the compensation for the services of the Senators and Representatives&quot;. A law could be passed this session automatically increasing (or decreasing) congressional pay by 5% per annum, and could take effect after the 2022 elections have taken place in November. Like all constitutional amendments, we do not get an authoritative interpretation of the meaning of the words until someone sues someone else and SCOTUS says what it means.</p>


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<p><a href="https://law.justia.com/cases/federal/district-courts/FSupp2/54/1014/2520134/" rel="nofollow noreferrer">Shaffer v. Clinton</a>, 54 F. Supp. 2d 1014 is a case almost on point, precisely over whether COLAs violate the 27th Amendment. The Executive branch (defendants) sought dismissal and certain Congressmen and citizens (plaintiffs) sought summary judgment, &quot;asserting there is no genuine issue as to any material fact remaining in dispute and plaintiffs are entitled to judgment as a matter of law&quot;. The case was dismissed with prejudice without much mention of the merits</p>
<blockquote>
<p>the annual COLAs provided by the Ethics Reform Act of 1989 are not
independent laws under the Twenty-seventh Amendment</p>
</blockquote>
<p>and that</p>
<blockquote>
<p>Adjustments to congressional salaries under the Ethics Reform Act are
not discretionary acts of Congress. The adjustments are calculations
performed by nonlegislative administrative staff, following a specific


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not discretionary acts of Congress. The adjustments are calculations
performed by nonlegislative administrative staff, following a specific
formula provided by Congress in the Act</p>
</blockquote>
<p>This provides a good basis for thinking that a future court would reach the same &quot;failure to state a claim&quot; dead end, but in lieu of something above the level of U.S. District Court, Colorado would be necessary to make the conclusion &quot;a matter of settled law&quot;. What you propose does not require making more than one law, and then a bunch of administrative calculations that does not involve Congress.</p>


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Answer 2: <p>It says law, not an event.  Make it simple: they pass a law that says “whenever the speaker of the house says Abracadabra during a session, pay shall be increased by 5%”.  That law would not take effect until the next Congress, and would allow them to bypass the constitutional requirement.  It would also hopefully result in everyone that voted for it being removed from office, and the next congress revoking the law.</p>
<p>Which is the intent of delaying the laws effective date.</p>


Tags: united-states, constitutional-law, us-constitution, twenty-seventh-amendment


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Question Title: Australian resident libels UK resident

Question Body: <p>Can a UK Resident sue an Australian Resident for Libel or Defamation, as in Australia, If the sender of emails had lived in the UK?</p>


Answer 1: <h2>Sure</h2>
<p>If the Australian defames the UK citizen to a third party the UK citizen can take legal action wherever the defamation took place.</p>
<p>However, be aware that defamation requires making untrue statements that damage the reputation to a third party. Calling someone a @#$&amp; to their face is not defamation.</p>


Tags: australia, defamation


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Question Title: Why &quot;client is best friends with the firm&#39;s managing partner and will never settle&quot;? Rather than AND &quot;the law clearly supported the firm&#39;s client&quot;?


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Question Body: <ol>
<li><p>Why did Managing Partner tip Associate to <code>&quot;tell opposing counsel [MERELY] that our client is best friends with the firm's managing partner and will never settle&quot;</code>? What's wrong with Associate's first reply (<strong>&quot;he had exhaustively researched the law and that the law  clearly supported the firm's client, so the other party should
settle&quot;</strong>) ?</p>
</li>
<li><p>Why didn't Managing Partner tip Associate to proffer BOTH reasons, and improve the Associate's reply by name-dropping the Partner? To wit, why not &quot;<code>tell opposing counsel that our client is best friends with the firm's managing partner and will never settle</code>&quot;<br />
PLUS<br />
that <em><strong>BOTH Partner</strong></em> and Associate &quot;<strong>had exhaustively researched the law and that the law  clearly supported the firm's client, so the other party should
settle</strong>&quot; ?</p>
</li>
</ol>
<blockquote>


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settle</strong>&quot; ?</p>
</li>
</ol>
<blockquote>
<p>Learning to work with opposing counsel takes practice. You need
to be assertive, but not obnoxious, and respectful, but not
fawning. It is also critical to think strategically:<br />
        As an associate headed out to a meeting with opposing
counsel with the goal of reaching a settlement, the managing
partner asked, &quot;So what are you going to tell opposing counsel?&quot;
The associate replied that he was going to tell opposing counsel
that <strong>he had exhaustively researched the law and that the law
clearly supported the firm's client, so the other party should
settle. [Emphasis added]</strong><br />
          &quot;No,&quot; the managing partner boomed, &quot;You are going to <code>tell opposing counsel that our client is best friends with the firm's managing partner and will never settle.&quot;</code> <code>[Gray highlight added]</code> The case settled
promptly thereafter—exactly the result the client wanted.</p>


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promptly thereafter—exactly the result the client wanted.</p>
</blockquote>
<p>Grover E. Cleveland, <em>Swimming Lessons for Baby Sharks : The Essential Guide to Thriving as a New Lawyer</em> (2016 2 edn), page 139.</p>


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Answer 1: <p>Because when Lawyer A claims to have exhaustively researched the law and concluded that his client is right, Lawyer B will not credit that statement, even for a second.</p>


Answer 2: <h2>Bargaining bluff</h2>
<p>Telling them that you have &quot;exhaustively researched the law&quot; in the endeavor to make them settle will only invite them to question &amp; debate your research and thus grant them some <strong>bargaining power</strong>.</p>
<p>Instead of doing that, an experienced lawyer (A) gets what they want (settlement on their terms) by being pushy and pretending they're not going to settle and are heading to the court. The opposing counsel (B), perhaps having researched the law themselves, comes to the conclusion that it is better to offer a settlement. But now lawyer A has the bargaining power and gets what they want.</p>


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Answer 3: <h2>Because this is a negotiation, not a legal argument</h2>
<p>What you say to your opponent <em>before</em> you get to court is not (necessarily) a statement of your legal rights. It’s a discussion on how to end the dispute as quickly and as painlessly as possible. This can include a statement (right or wrong) that the principle is more important than the money. Don’t say this unless you’re very rich and don’t mind spending a lot of money just for the satisfaction of breaking your opponent.</p>
<p>For  <a href="https://highstakesdb.com/news/high-stakes-reports/kerry-packer-the-most-legendary-gambler-in-casino-history" rel="nofollow noreferrer">example</a>:</p>
<blockquote>
<p>Packer’s legendary willingness to gamble led to some of the most incredible casino stories ever heard, and include an epic put down of a multi-millionaire Texan oil baron.</p>


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<blockquote>
<p>Packer’s legendary willingness to gamble led to some of the most incredible casino stories ever heard, and include an epic put down of a multi-millionaire Texan oil baron.</p>
<p>Bored by the Texas man’s boorish behaviour at the blackjack tables, Packer called the braggart out over his claimed $100million worth.</p>
<p>“I’ll flip you for it,” was Packer’s brutal offer, the Texan suddenly lost for words at the idea of his fortune resting on the toss of a coin. For Packer, a many-times self-made millionaire, it was just another day at his ‘other’ office.</p>
</blockquote>
<h2>It’s not what you say to the judge</h2>
<p>If the case gets to court, <em>then</em> you have to make cognisant legal arguments.</p>
<p>But if you do get to court, you’re effectively saying “I’ll flip you for it.”</p>


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Question Title: Copyright for Speeding Photo

Question Body: <p>If I get a ticket for speeding in Germany with a photo taken by an automatic camera, is there any copyright attached to that photo, or can I use it without asking the state for permission?</p>


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Answer 1: <p>A flash photo (Blitzfoto/Beweisfoto) is a technical aid (Technische Hilfsmittel) for the speed limit enforcement (Geschwindigkeitsüberwachung).</p>
<p>They are created for the <strong>sole purpose</strong> to be used as evidence for a fine notice (Bußgeldbescheid) and must originate from a responsible authority (i.e. not privat persons or companies) that is determined by state laws.</p>
<p>It is an integral portion of the file (Akte) of the notice. The file belongs to the responsible authority (generally called <strong>Bußgeldstelle</strong>).</p>
<p>Since it is a combination of technical data togeather with a photo, the copyright rules for a photo should not be assumed.</p>
<p><img src="https://i.stack.imgur.com/5p1Ai.jpg" alt="" /></p>
<ul>
<li>flash photo of a culprit flying 15 km/h over the 30 km/h speed limit</li>
</ul>


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<p><img src="https://i.stack.imgur.com/5p1Ai.jpg" alt="" /></p>
<ul>
<li>flash photo of a culprit flying 15 km/h over the 30 km/h speed limit</li>
</ul>
<p>The responsible authority will not have any copyright, due to <a href="https://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html#p0033" rel="nofollow noreferrer">§5 UrhG</a>, but it still belongs to them.</p>
<hr />
<p><strong>Sources</strong>:</p>
<ul>
<li>Act on Copyright and Related Rights (Urheberrechtsgesetz – UrhG)
<ul>
<li><a href="https://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html#p0033" rel="nofollow noreferrer">§5 - Official works</a></li>
<li><a href="https://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html#p0050" rel="nofollow noreferrer">§10 - Presumption of authorship or ownership</a></li>
</ul>
</li>
</ul>


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Answer 2: <h2>It’s possible there is no <a href="https://www.sydney.edu.au/content/dam/corporate/documents/sydney-law-school/research/publications/slrv43n2jun2021mccutcheonfinal.pdf" rel="nofollow noreferrer">copyright</a></h2>
<p>I’m not familiar with the specifics of German copyright law, but, in general, a photograph must have an author to be protected by copyright.</p>
<p>As far as I know, it has not been litigated but it’s possible that a photo taken by an automated camera has no author and, therefore, no copyright.</p>
<p>A counter argument is that the technician who set up the camera, choosing its field of view and the parameters by which it is triggered is sufficient to make them the author.</p>


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<p>A counter argument is that the technician who set up the camera, choosing its field of view and the parameters by which it is triggered is sufficient to make them the author.</p>
<p>Assuming that is the case, then the technician owns the copyright and the person who engaged the technician has full economic rights. Unlike English speaking countries, copyright in <a href="https://www.lexology.com/library/detail.aspx?g=bbc74ca2-448d-40bd-bfe8-dbbae104964a#:%7E:text=May%20an%20employer%20own%20a,the%20owner%20of%20the%20copyright." rel="nofollow noreferrer">Germany</a> does not recognise the “work for hire” doctrine and does not allow transfer of copyright except by inheritance.</p>
<p>So, you would need the technician’s permission to use it and the states permission to profit from it. Subject to the normal exceptions.</p>


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Question Title: How does GPL affect a Makefile-only modification?

Question Body: <p>As a continuation of <a href="https://law.stackexchange.com/questions/45797/gpl-does-changing-makefiles-and-configurations-considered-as-modifications">this question</a>, does a Makefile modification when building GPL source mean my own program becomes GPL also ? For example, if some third-party GPL'd source contains exit(), and I add to the Makefile -Derror_handling=exit and link an error_handling() function that performs error handling and returns without exiting, does that count as a GPL modification ?  I could also change link order and supply my own exit() function to achieve the same result, would that count as a GPL modification ?</p>


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Answer 1: <p>Your program doesn’t “become GPL” at all. That’s not how GPL works.</p>
<p>The GPL license gives you two permissions without any obligation: You are allowed to use the software, and you are allowed to modify the software and use the modified software. If the software is a combination of GPL licensed and your own software, then your own software is not GPL licensed.</p>
<p>The GPL license only comes into play when you distribute it (hand a copy to someone else), with or without your software added.</p>
<p>You then have the choice: Either you ship the complete software under the GPL license and everything is legally fine, or you ship it without the GPL license which makes it copyright infringement. It’s your choice. Changing the make file does nothing to the license, you have to do that yourself. Of course when I say “choice” is like leaving a store with goods, you have the choice to pay or become a thief. It doesn’t mean it’s legal, it isn’t.</p>


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Question Title: What is the meaning of the phrase &quot;be and the same?&quot;

Question Body: <p>I applied for and received a court order to change my name and it had an odd phrase that I'm struggling to understand:</p>
<blockquote>
<p>...it is hereby ordered that the name of [previous legal name] <strong>be and the same</strong> is changed to [new legal name];</p>
</blockquote>
<p>I've searched around for definitions of this phrase but only found a few other examples of usage, some of which have an extra comma to produce &quot;<strong>be, and the same</strong> is hereby [granted/ordered/approved/etc],&quot; suggesting one might parse the sentence as two overlapping clauses &quot;the name of [X] be [Y]&quot; and &quot;the name of [X] is changed to [Y].&quot; But in that case I'm still not sure why those two clauses have distinct enough effects to need to both be present.</p>


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Answer 1: <p>It's not a single phrase.  It's two different parts of a compound predicate in the passive voice.  The past participle is the same in both elements, so it is elided from one of them.  A more transparent but repetitive way of writing this is</p>
<blockquote>
<p>...it is hereby ordered that the name of [previous legal name] be changed to [new legal name], and the same is hereby so changed.</p>
</blockquote>
<p>Or even</p>
<blockquote>
<p>...it is hereby ordered that the name of [previous legal name] be changed to [new legal name], and [previous legal name] is hereby changed to [new legal name].</p>
</blockquote>
<p>The purpose of this seemingly duplicate language is that saying &quot;it is ordered that X be Y&quot; in the subjunctive mood could be interpreted as saying that something should happen but not actually causing it to happen.  But saying &quot;it is ordered that X is Y&quot; was grammatically incorrect in the 17th century or so.</p>


Tags: legal-terms


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Question Title: How to access SCOTUS opinion announcements from the bench

Question Body: <p>I guess my query is in the title.</p>
<p>I read that the Supreme Court of the United States <a href="https://www.scotusblog.com/2022/12/court-will-resume-opinion-announcements-from-the-bench-but-wont-provide-live-audio/" rel="nofollow noreferrer">would resume annunciation of its opinions</a>, but I have not, for the life of me, been able to find announcements from previous terms. I believe they're on the website of the National Archives, but I still can't locate them.</p>
<p>Could anyone here help me?</p>


Answer 1: <p>Oyez.org hosts these when they become available. E.g.: <a href="https://www.oyez.org/cases/2017/16-402" rel="nofollow noreferrer">https://www.oyez.org/cases/2017/16-402</a></p>
<p>However, the Court does not make these available until long after the opinion announcement (generally, at the beginning of the following term).</p>


Tags: us-supreme-court


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Question Body: <p>I have read conflicting information about police in the United States arresting people for not paying a bill from a retail vendor, like a taxi driver, auto mechanic or restaurant.</p>
<p>On one hand my understanding is that in all states if you owe money to a vendor, then they have to sue you to collect it. It would seem unlikely to me that a vendor's complaint that you did not pay them would constitute the basis for a criminal arrest. For what?</p>


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<p>On the other hand I keep reading what are essentially rumors on the internet that the police can and will arrest you if a store keeper or other vendor complains that you have not paid them AFTER THE FACT. For example, I read one case where a guy left an auto mechanic's shop after the mechanic tried to add an unapproved &quot;diagnostic&quot; charge to a bill and later he got a phone call from the police who threatened to arrest him if he did not go back to the shop and pay the mechanic the disputed charge. Allegedly the cop told him, &quot;You have to pay him or I will arrest you. You can sue him later if you want to.&quot; I have read similar things where it is claimed if you leave a cab and do not pay, the driver can chase after you and if he can somehow find you, then he can have you arrested.</p>


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<p>So, what is the reality here? Does this even happen and what are the laws involved here? I mean I guess if I could get somebody arrested by just saying to the police that they owed me money, there are a lot of people I could get arrested.</p>
<p>UPDATE: I think Frederick's comment is very relevant in that the complex question seems to be whether there is &quot;intent&quot; to defraud, in other words, did the customer set out to obtain the services with no intention of paying in the beginning, or did they later refuse or fail to pay for some reason that had no relation to their original intent. So, there seems to be a psychological aspect to the problem.</p>


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Answer 1: <h3>Theft of service</h3>
<p><a href="https://www.kevinbennettlaw.com/theft-property-crimes/theft-of-service/" rel="noreferrer">In Texas</a>:</p>
<blockquote>
<p>[t]heft of service charges can also arise if you agree to make payment in exchange for a service, and then refuse to pay for the service once it’s rendered.</p>
</blockquote>
<p><a href="https://statutes.capitol.texas.gov/Docs/PE/htm/PE.31.htm" rel="noreferrer">Texas Penal Code Section 31.04</a>:</p>
<blockquote>
<p>A person commits theft of service if, with intent to avoid payment for service that the actor knows is provided only for compensation... the actor intentionally or knowingly secures the performance of the service by agreeing to provide compensation and, after the service is rendered, fails to make full payment after receiving notice demanding payment.</p>
</blockquote>
<blockquote>


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</blockquote>
<blockquote>
<p>For purposes of this section, intent to avoid payment is presumed if any of the following occurs...the actor absconded without paying for the service or expressly refused to pay for the service in circumstances where payment is ordinarily made immediately upon rendering of the service, as in hotels, campgrounds, recreational vehicle parks, restaurants, and comparable establishments;...</p>
</blockquote>
<h3>Probable cause</h3>
<p>Whether you &quot;could get somebody arrested by just saying to the police that they owed me money&quot;, read <a href="https://law.stackexchange.com/search?q=%22probable%20cause%22">the various Q&amp;As on this site about the <em>probable cause</em> standard for arrest</a>.</p>


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Answer 2: <h2>Yes, an arrest is possible</h2>
<p>Taking a taxi and telling the driver you will pay, and having already intended not to pay in the beginning but running of is, in <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a>, Fraud (Betrug) under <a href="https://www.gesetze-im-internet.de/stgb/__263.html" rel="nofollow noreferrer">§263 StGB</a>. That is a Straftat that can be punished with up to <strong>five years of prison</strong>. The same is true for taking gas and not paying, which is treated as <em>Tankbetrug</em>.</p>


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<p>If the decision to not pay only came up the moment the taxi arrived or the tanking was complete, it is conversion (Unterschlagung) under <a href="https://www.gesetze-im-internet.de/stgb/__246.html" rel="nofollow noreferrer">§ 246 StGB</a>, punishable with <strong>three years of prison</strong>.</p>
<p>As the punishment in both cases is possibly more than one year, this is a Verbrechen (~Felony). If the amount in dispute is below 50 €, then the damaged party has to request prosecution. In case of 50 € or more, merely alerting the police and filing an Anzeige puts the prosecution in motion. And because it is a felony, the police may not just demand the suspect to come to the station, they can also arrest the suspect if there is a risk of flight (and they get a warrant).</p>


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<p>Note that because the state of mind is not known to the police investigating, they will assume fraud or conversion based on the evidence and not consider accidentally forgetting to pay. This is because it was the duty of the party receiving the goods or service to ensure they had paid, and if it was an accident they should have discovered that very timely and remedied the situation by paying. Not doing that means they are at least committing conversion.</p>
<p>While it is often very hard for a taxi driver to get the suspect arrested unless they know exactly who they drove and often only a price of below 50 €, gas stations have video evidence of the driver and car as well as the higher value lead to much easier prosecution.</p>
<p>An arrest might also be done for the mere purpose of asserting your identity.</p>
<h2>Can arrest be mitigated?</h2>
<p>Yes. You can prevent the criminal offence by making clear to the damaged person that you either:</p>
<ul>


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<h2>Can arrest be mitigated?</h2>
<p>Yes. You can prevent the criminal offence by making clear to the damaged person that you either:</p>
<ul>
<li>promise to pay at a later date, e.g. leaving an item of value to cash out with the needed pay later.</li>
<li>have a genuine dispute, and provide the required information to be sued.</li>
</ul>


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Question Title: My child&#39;s name is &quot;Robert&#39;); drop table *;--&quot; Is he in trouble?

Question Body: <p>(Source:  <a href="https://xkcd.com/327/" rel="noreferrer">https://xkcd.com/327/</a>)</p>

<p>So with the upcoming birth of my first child, I suggested the name "Robert'); drop table *;--". While I was quickly told that wasn't going to happen, I have to wonder what could happen if he was actually named that.</p>

<p>For the less technical, this name contains what is called 
a SQL injection attack. If the name is entered into a poorly designed SQL system, it could potentially execute a sql command and drop all tables (i.e. cause the organization's IT manager to have a somewhat bad day, depending on how good their backups are).</p>


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<p>So assuming I am able to get this name on his birth certificate and get his SSN assigned under that name (let us assume that the government has been able to build their system such that this name can be handled without issue), what would happen if his name fulfills its intended purpose when signing him up for day care? In that while signing little Bobby tables up for day care, his name wiped out all their data, and because of their lack of a good IT policy, they have no backups, causing no small amount of trouble for the day care.</p>

<p>What would I be charged with or sued for in this case?</p>

<p>I assume I am on the hook for some sort of malicious destruction of data or somehow liable for the loss of data. </p>

<p>Would this being his name afford any sort of protection? Or would the fact that it was selected intentionally to cause damage be an issue? </p>

<p>Jurisdiction: United States, pick any state you feel like.</p>


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<p>Jurisdiction: United States, pick any state you feel like.</p>


Answer 1: <p>Your kid is not in trouble; he's a minor. You're in trouble.</p>

<p>A criminal case for the charges a prosecutor would bring, i.e. destruction of property (the data) or for a relevant cyber or computer crime (malware, etc.), and/or a civil case for damages due to the destruction of the data would both hinge on one point: the concept of <em>intent</em>. See <a href="https://www.law.cornell.edu/wex/intent" rel="noreferrer">intent - Wex Legal Information Institute</a> and <a href="https://www.rasmussen.edu/degrees/justice-studies/blog/civil-law-versus-criminal-law/" rel="noreferrer">Civil Law vs. Criminal Law: The Differences | Rasmussen College</a>.</p>


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<p>Did you knowingly intend to cause damage or data loss with the structure of the name? It's pretty clear you did. The structure of a name that can invoke an SQL command is not in any sense a standard name in spelling or format or punctuation. So how would you convince the jury or judge that you had no intent when you named your kid?</p>

<p>The possible poor design of a data system that didn't sanitize inputs is no defense. Saying <em>the door was unlocked so I assume the homeowners didn't care if I trashed their house</em> will get you laughed into jail or on the hook for a stiff civil judgement.</p>


Answer 2: <p>No, your future first child would not get into trouble, since they cannot be held responsible for the initial name gave to them by another. </p>

<p>You, as the 'responsible' parent may be held responsible in states such as </p>

<ul>
<li>Connecticut</li>
</ul>

<p>where </p>


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<p>You, as the 'responsible' parent may be held responsible in states such as </p>

<ul>
<li>Connecticut</li>
</ul>

<p>where </p>

<blockquote>
  <p>not for fraudulent or nefarious purposes and does not infringe on the rights of another person,</p>
</blockquote>

<p>is a condition (if if legal in one state, but used in another where it is not). </p>

<hr>

<blockquote>
  <p><strong>Robert'); drop table *;--</strong></p>
</blockquote>

<p>Would not be allowed in some US-States, since it contains <strong>symbols</strong> that are not allowed:</p>

<blockquote>
  <blockquote>
    <p><strong>) ; *</strong></p>
  </blockquote>
</blockquote>

<ul>
<li>Alabama, Arizona, Arkansas, Colorado, Connecticut, Georgia, Idaho</li>
<li>Kansas, Massachusetts, Michigan, Minnesota, Montana, New Jersey</li>
<li>New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma</li>
<li>South Dakota, Texas, West Virginia</li>
</ul>

<hr>


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<hr>

<blockquote>
  <p>In many U.S. states, hyphens and apostrophe <strong>are the only two symbols</strong> personal names can officially contain. In some computer systems and in the machine-readable zone of a passport, they are omitted (Mary-Kate O'Neill → Mary Kate ONeill)</p>
</blockquote>

<hr>

<p><strong>Sources</strong>:</p>

<ul>
<li><a href="https://en.wikipedia.org/wiki/Naming_in_the_United_States#Names_with_symbols_and_capital_letters_in_the_middle" rel="nofollow noreferrer">Naming in the United States</a> </li>
<li><a href="https://www.thebump.com/a/baby-name-rules" rel="nofollow noreferrer">Craziest Baby Naming Laws By State</a> </li>
</ul>


Answer 3: <blockquote>
  <p>My child's name is “Robert'); drop table *;--” Is he in trouble?</p>
</blockquote>

<p><em>When signing up</em>, the name itself is unlikely to cause system --and hence legal-- issues. That is, in most cases that scenario of injection would be a <em>non sequitur</em>. Consider the following:</p>


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<ol>
<li><p>Database implementations typically store first, middle, and last name in separate fields, whence the middle (or last) name starting with <em>drop table</em> would be surrounded by quotes (and thus, be disabled) when inserting into table(s).</p></li>
<li><p>Tables are set up --via DDL-- so as to prevent important fields from being null (or have length equal to zero). Accordingly, code <em>prior</em> to the insert command ought to parse the entry so as to avoid abends from the database. Decent parsing code would catch entries for field middle_name (or last_name) which consist of a supposedly empty name '' followed by the <em>drop</em> command.</p></li>
<li><p>I am not sure DDL commands accept wildcards as arguments. Of course, that could vary among RDBMSs, I haven't tried this, and I would have to start my test db (no plans to do that right now, haha).</p></li>
</ol>


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<p>Thus, in the event that signing up does cause a mess, the parent should conduct discovery on the implementation of the system to examine its robustness. Depending on the results of discovery, the parent could support the argument that the database was so weak that <a href="https://legal-dictionary.thefreedictionary.com/But+for+causation" rel="nofollow noreferrer"><em>proximate</em> or <em>but for</em> causation</a> shall be ruled out. Similarly, poor design &amp; implementation of the database is a <em>mitigating factor</em>, which would reduce the liability --if any-- traceable to the father's choice of name.</p>


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<p>I started emphasizing the phrase "<em>when signing up</em>" because harm and liability might ensue <em>if/when</em> the kid's entire name is typed afterwards in other fields that are more "free format". As you surely know, there are fields of much greater length and intended for extended description, narrative, or elaboration of an event. Whereas one may expect reasonable robustness on crucial/key fields of a database table, that expectation does not necessarily hold for free-format fields. That being said, a short version of the kid's long name would most likely be used in free-format fields.</p>

<blockquote>
  <p>What if the name was unintentionally selected?</p>
</blockquote>

<p>(Per <a href="https://law.stackexchange.com/revisions/47600/2">initial version</a> of your post ...)</p>


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<blockquote>
  <p>What if the name was unintentionally selected?</p>
</blockquote>

<p>(Per <a href="https://law.stackexchange.com/revisions/47600/2">initial version</a> of your post ...)</p>

<p>That argument would be unavailing. It is just not credible that (1) a person with no background in databases would choose a name of that sort; and (2) a person with background in databases "did not know" that such last name could harm the database/catalog.</p>


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Answer 4: <h2>That string of characters is not acceptable as a name in some jurisdictions in the first place.</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> will block the name on the basis that the name is on one hand <a href="https://law.stackexchange.com/a/88512/10334">prone to damaging the child</a>, and ]on the other hand <a href="https://law.stackexchange.com/questions/85325/can-i-legally-include-a-line-break-in-my-childs-name/85328#85328">is unprintable by the Bundesdruckerei.</a> Insted, your child will only be registered as the closest equivalent, Robert Drop Table.</p>


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<p><a href="/questions/tagged/japan" class="post-tag" title="show questions tagged &#39;japan&#39;" aria-label="show questions tagged &#39;japan&#39;" rel="tag" aria-labelledby="tag-japan-tooltip-container">japan</a> will block the name, because it does not use <a href="https://law.stackexchange.com/questions/85325/can-i-legally-include-a-line-break-in-my-childs-name/85328#85328">Hiragana, Katakana or approved kanji.</a> The closest would be the phonetic ロバート ドロップ テーブル (Robāto doroppu tēburu) or, using the proper words for drop and spreadhseet ロバート 落とす 表計算  (Robāto Otosu Omotekeisan)</p>


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Question Title: Legal Considerations for Offering Rewards in Exchange for Tenant Selection in Germany


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Question Body: <p>My company and I are located in Germany and we intend to distribute flyers on the street. In the flyers, we offer a reward to those who are willing to rent out their homes in exchange for us being able to select the tenants (for example, offering 1500 euros). Subsequently, we plan to create a separate advertisement where we are seeking tenants for the house and asking for a higher amount of money (for example, 3000 euros). From a legal perspective, could such a practice be considered illegal? What aspects should we be mindful of?</p>
<p>Thank you!</p>
<p>Guten Tag,</p>


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<p>Thank you!</p>
<p>Guten Tag,</p>
<p>Ich und mein Unternehmen sind in Deutschland ansässig und beabsichtigen, Flyer auf der Straße zu verteilen. In den Flyern bieten wir eine Belohnung (zum Beispiel 1500 Euro) für diejenigen an, die ihr Haus vermieten möchten, im Gegenzug dafür, dass wir die Mieter auswählen dürfen. Anschließend planen wir, eine separate Anzeige zu schalten, in der wir Mieter für das Haus suchen und einen höheren Geldbetrag verlangen (zum Beispiel 3000 Euro). Aus rechtlicher Sicht könnte eine solche Vorgehensweise illegal sein? Auf welche Aspekte sollten wir achten?</p>
<p>Vielen Dank!</p>


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Answer 1: <p>As written, your question seems to ask for legal advice in a specific case. That would be off-topic. If you are asking strictly as a hypothetical:</p>
<p>In <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a>, there is supposed to be the <em>Bestellerprinzip</em> for services of a real state agent (whoever retains the agent pays the fees). This was clarified in the <em>Gesetz zur Regelung der Wohnungsvermittlung</em> <a href="https://www.bmj.de/SharedDocs/Gesetzgebungsverfahren/Dokumente/BGBl_MietNovG.pdf;jsessionid=98F8CD0E5E340D8B5C3FC1D30997921C.2_cid324?__blob=publicationFile&amp;v=6" rel="nofollow noreferrer">as changed in 2015</a>. Landlords and real estate agents are frequently trying to get around it, but getting the legal construction of the contracts wrong would mean a substantial fine.</p>


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Question Title: Is defending oneself from a sexual assult a defence for murder?

Question Body: <p>A man forces himself on a woman with no threats of violence, no deadly weapon and he doesn't even hit her, he simply just physically overpowers her. This occurs in the kitchen and she is able to grab a knife and stab him during the assult, killing him. Let us assume she did not fear for her life, she acted only to end the assault, would that be murder, manslaughter, or simply self defense?</p>


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Answer 1: <p><a href="/questions/tagged/colorado" class="post-tag" title="show questions tagged &#39;colorado&#39;" aria-label="show questions tagged &#39;colorado&#39;" rel="tag" aria-labelledby="tag-colorado-tooltip-container">colorado</a></p>
<h3>Short Answer</h3>
<p>This woman was engaged in legally permitted self-defense when she killed the man with a knife in the kitchen under Colorado law, and she has not committed any crime. Her conduct would also not provide a basis for a valid lawsuit for money damages against her.</p>
<h3>Long Answer</h3>
<p><strong>Applicable Law</strong></p>
<p>In Colorado's state criminal code, the relevant statutory section, Colorado Revised Statutes, § 18-1-704, states, in the pertinent parts (emphasis mine):</p>
<blockquote>
<p><strong>Use of physical force in defense of a person - definitions.</strong></p>
<p>(1) . . . a
person is justified <em>in using physical force</em> upon another person in


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<blockquote>
<p><strong>Use of physical force in defense of a person - definitions.</strong></p>
<p>(1) . . . a
person is justified <em>in using physical force</em> upon another person in
order to defend himself . . . and he may use a degree of force which he
reasonably believes to be necessary for that purpose.</p>
<p>(2) <em>Deadly physical force</em> may be used only if a person reasonably
believes a lesser degree of force is inadequate and: . . .</p>
<p>(b) The other person is using . . .
physical force against an occupant of a dwelling . . . while committing or attempting to commit burglary as
defined in sections 18-4-202 to 18-4-204; or</p>
<p>(c) The other person is committing or reasonably appears about to
commit . . . sexual assault as set forth in section 18-3-402, or in
section 18-3-403 as it existed prior to July 1, 2000.</p>
</blockquote>
<p>The referenced definition of burglary as relevant to this fact pattern is that:</p>
<blockquote>


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section 18-3-403 as it existed prior to July 1, 2000.</p>
</blockquote>
<p>The referenced definition of burglary as relevant to this fact pattern is that:</p>
<blockquote>
<p>A person commits . . . burglary, if the person knowingly breaks an
entrance into, enters unlawfully in, or remains unlawfully after a
lawful or unlawful entry in a building or occupied structure with
intent to commit therein a crime against another person or property.</p>
</blockquote>
<p>Note also that it doesn't matter for purposes of the burglary statute, if this is her kitchen, or someone else's, so long as it is not his kitchen.</p>
<p>Also he need only be &quot;attempting to commit burglary&quot;, so even if he was trying unsuccessfully to get into the house and assaulting her from just outside a door or window, her use of deadly force to prevent burglary would be justified.</p>


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<p>On the other hand, if he was lawfully present in the home (perhaps a husband or roommate), the burglary justification for the use of deadly force would no longer be present.</p>
<p>The referenced sexual assault statute states in the pertinent part that it is committed if:</p>
<blockquote>
<p>Any actor who knowingly inflicts sexual intrusion or sexual
penetration on a victim commits sexual assault if: The actor causes
submission of the victim by means of sufficient consequence reasonably
calculated to cause submission against the victim's will . . . [which
includes any case in which:] The actor causes submission of the victim
through the actual application of physical force or physical
violence[.]</p>
</blockquote>


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includes any case in which:] The actor causes submission of the victim
through the actual application of physical force or physical
violence[.]</p>
</blockquote>
<p>Even if he does not &quot;reasonably appears about to commit&quot; sexual penetration or intrusion (which are necessary for the crime to be sexual assault for purposes of the use of deadly force law in Colorado), unlawful sexual contact is a crime against a person in an occupied dwelling, so it constitutes burglary that justifies the use of deadly force, even if it doesn't constitute sexual assault.</p>
<p>Under these circumstances, the woman may use deadly physical force if she reasonably believes a lesser degree of force is inadequate to cause the rapist to cease committing sexual assault, <em>and any other crime against person or property</em> in the home.</p>
<p><strong>Application Of Law To Facts</strong></p>


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<p><strong>Application Of Law To Facts</strong></p>
<p>There is no reasonable doubt that the man is, at a minimum, in the process of committing burglary, and very likely sexual assault as well, although the language of the question is somewhat coy on this point as relevant to the Colorado definition of sexual assault.</p>
<p>He has proven himself capable of physically overpowering her efforts to resist him with non-deadly force without success. This demonstrates that non-deadly force was inadequate.</p>
<p>She used a knife to kill him for the legally authorized purpose of ending a burglary and probably also a sexual assault.</p>
<p>Therefore, her use of a knife to kill him is almost certain be a use of deadly force for purposes of self-defense which is permitted by Colorado law. As a result, she would not be legally guilty of any crime for killing him with a knife in these circumstances.</p>


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<p>Incidentally, she would also have <a href="https://www.ncsl.org/civil-and-criminal-justice/self-defense-and-stand-your-ground" rel="nofollow noreferrer">no civil liability in tort for money damages in this situation in Colorado</a>.</p>
<p><strong>Application To Other U.S. States</strong></p>
<p>The exact wording of self-defense statutes differ from one U.S. state to another and I don't personally know every fine statutory detail of every one of them. But, Colorado's statute is quite typical. A state where her actions did not constitute legally justified in these circumstances would be an extreme outlier in U.S. law. I would be surprised if there was any U.S. state in which her actions would not constitute legally justified self-defense.</p>
<p><strong>Historical Note</strong></p>
<p>Suppose that the man in the question were the woman's husband in their own home where they were both lawfully present.</p>
<blockquote>


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<p><strong>Historical Note</strong></p>
<p>Suppose that the man in the question were the woman's husband in their own home where they were both lawfully present.</p>
<blockquote>
<p>Prior to the 1970s, marital rape was legal in every US state. It was
partially outlawed in Michigan and Delaware in 1974, then wholly
outlawed in South Dakota and Nebraska in 1975. The court case <em>Oregon
v. Rideout</em> in 1978 was the first in which someone stood trial for
raping his spouse while they lived together. By 1993 marital rape was
a crime nationwide.</p>
</blockquote>
<p>(<a href="https://en.wikipedia.org/wiki/Marital_rape_in_the_United_States" rel="nofollow noreferrer">Source</a>)</p>


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a crime nationwide.</p>
</blockquote>
<p>(<a href="https://en.wikipedia.org/wiki/Marital_rape_in_the_United_States" rel="nofollow noreferrer">Source</a>)</p>
<p>Under current U.S. law in every U.S. state, the sexual assault justification analysis would be no different because there is no marital immunity for the crimes of sexual assault, although the burglary justification would no longer be present, so an intent to commit unlawful sexual contact without penetration or intrusion would not justify the use of deadly force.</p>
<p>But, when marital immunity to sexual assault was part of the law, as it was in every U.S. state prior to 1974, and as it was in some U.S. states until 1993, she would be guilty of second degree murder or manslaughter.</p>


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<p>The distinction between second degree murder and manslaughter in that case would hinge upon whether she had an intent to kill or only intended to harm (as in <a href="https://law.stackexchange.com/a/92909/9517">a case cited by Jen in her answer</a>). Also, she would have a good argument for manslaughter due to provocation by the victim that was not sufficient to justify the use of deadly force, even if jury concluded beyond a reasonable doubt that she did intent to kill him.</p>
<p>Colorado's self-defense statute (in a subsection omitted because it was not applicable to the facts in the question) also permits the grade of a criminal offense caused in the course of conduct intended as self-defense that does not meet the statutory standards for self-defense (e.g. because non-deadly force would have been sufficient) to downgrade the severity of the offense for which the person may be convicted, in a manner similar to the &quot;heat of passion&quot; defense.</p>


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<p>But, these facts present no plausible justification for a first degree murder, which is often a charge punishable by death penalty or life in prison without the possibility of parole, since it was not premeditated or committed in connection with a crime by the perpetrator.</p>
<p>Realistically, under the circumstances of the question, if he was her husband and they were in their own home, during a time frame when there was marital immunity from sexual assault charges, she would most likely be convicted of manslaughter under these circumstances.</p>
<p><strong>Side Observation</strong></p>
<p>The U.S. Supreme Court has held in <em>Kennedy v. Louisiana</em>, 554 U.S. 407 (2008) that the 8th Amendment to the United States Constitution, directly and as incorporated against the states under the 14th Amendment, prohibits the imposition of the death penalty for a rape not resulting in death (even the rape of a child).</p>


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<p>The death penalty has been unconstitutional in cases involving the rape of an adult woman in the U.S. since U.S. Supreme Court case of <em>Coker v. Georgia</em>, 433 U.S. 584 (1977).</p>
<p>There are many serious felonies (including some omitted from the Colorado statute above because they were not applicable to this fact pattern) for which the use of deadly force in self-defense is authorized even though the U.S. Constitution prohibits the use of the death penalty upon a conviction of that offense which does not result in someone dying.</p>


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Answer 2: <h2>Probably</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>
<p>Self-defence is defined in <a href="http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s418.html" rel="nofollow noreferrer">s418</a> of the <em>Crimes Act</em> 1900.</p>
<p>The defendant would probably rely on ss418(2)(a-b). You are allowed to use reasonable conduct to (a) defend yourself, and (b) terminate a depravation of liberty. Both would seem to apply to the facts.</p>
<p>The only real question for the jury is if the conduct (stabbing the assaulted with a kitchen knife) was reasonable. That depends on the circumstances: if you stabbed and fled, almost certainly; if you stabbed and gloated for half an hour while the perpetrator bled out, maybe not.</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>Self-defence requires that the act commmitted in response to the threat be reasonable</h3>
<p>The person claiming self-defence must have the subjective belief that &quot;a threat of force is being made against them or another person.&quot; Such belief must also be based on reasonable grounds. They must also act with the subjective purpose of protecting themselves or the other person from that use or threat of force. And the act must be reasonable in the circumstances.</p>
<p>This all comes from the text of the defence, codified at s. 34 of the <em>Criminal Code</em>. It reads:</p>
<blockquote>
<p>34 (1) A person is not guilty of an offence if</p>


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<p>This all comes from the text of the defence, codified at s. 34 of the <em>Criminal Code</em>. It reads:</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>
<p>Your scenario establishes that condition (a) is satisfied: the accused would believe on reasonable grounds that force is being used against them. Condition (b) also appears to be satisfied: you say &quot;she acted only to end the assault.&quot; The availability of the defence will turn on condition (c): whether &quot;the act committed is reasonable in the circumstances.&quot;</p>


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<h3>Whether the act is reasonable depends on many factors, including the nature and proportionality of the response</h3>
<p>Section 34(2) says:</p>
<blockquote>
<p>(2) <strong>In determining whether the act committed is reasonable in the circumstances</strong>, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:</p>
<p>(a) the nature of the force or threat;</p>
<p>(b) <strong>the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force</strong>;</p>
<p>(c) the person’s role in the incident;</p>
<p>(d) whether any party to the incident used or threatened to use a weapon;</p>
<p>(e) the size, age, gender and physical capabilities of the parties to the incident;</p>
<p>(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of


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<p>(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of
force and the nature of that force or threat;</p>
<p>(f.1) any history of interaction or communication between the parties to the incident;</p>
<p>(g) <strong>the nature and proportionality of the person’s response to the use or threat of force</strong>; and</p>
<p>(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.</p>
</blockquote>
<p>Most likely, the only factors meaningfully at play will be (2)(b) (especially any &quot;other means available&quot;) and (2)(g) (the &quot;nature and proportionality of the person’s response to the use or threat of force&quot;), but all the factors are to be considered. When proportionality of the response is an issue, a typical jury instruction is:</p>
<blockquote>


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<blockquote>
<p>Keep in mind that persons who reasonably believe they are under attack may not be able to weigh with precision the exact measure of defensive action needed to repel the attack</p>
</blockquote>
<h3>Self-defence may be available as a defence in the circumstances you describe</h3>
<p>Depending on the totality of the circumstances, there could be a successful self-defence defence available. See a similar example from <a href="https://www.canlii.org/en/nu/nucj/doc/2021/2021nucj3/2021nucj3.html" rel="nofollow noreferrer"><em>R. v. Ameralik</em>, 2021 NUCJ 3</a>:</p>
<ul>
<li>Ms. A's spouse confronted her and threatened her in a small kitchen</li>
<li>Ms. A tried to stab him in the arm, but the blade slipped and pierced his lung and heart</li>
<li>Ms. A was charged with second degree murder</li>
<li>She was found not guilty of murder because she did not intend to cause bodily harm that she knew was likely to cause death</li>


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<li>Ms. A was charged with second degree murder</li>
<li>She was found not guilty of murder because she did not intend to cause bodily harm that she knew was likely to cause death</li>
<li>She would have been guilty of manslaughter if not for self-defence</li>
</ul>
<blockquote>


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<li>She would have been guilty of manslaughter if not for self-defence</li>
</ul>
<blockquote>
<p>Mr. Aaluk advanced toward Ms. Ameralik shouting that she should stab him, after their verbal altercation had escalated into physical violence. Perceiving an imminent threat to herself and her unborn child by a much larger Mr. Aaluk who had previously punched her in the stomach during her pregnancy, Ms. Ameralik grabbed the only weapon available to her, the sharp kitchen knife she had been using to prepare dinner and stabbed him once. Ms. Ameralik did not have to weigh her response to a nicety. Given her vulnerability, recognizing how physically outmatched she was, I am satisfied Ms. Ameralik’s use of force was not out of proportion to the threat of violence she was experiencing at the time of the incident.</p>
</blockquote>
<blockquote>


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</blockquote>
<blockquote>
<p>No one factor in the test for self-defence is determinative and the whole relationship between a couple must be considered to determine whether the accused was acting in self-defence. I am left with no doubt that Ms. Ameralik suffered significantly for years as a victim of intimate partner abuse while in a relationship with Mr. Aaluk. Having carefully reviewed the criteria above within the context of the history of violence, I am not satisfied beyond a reasonable doubt that Ms. Ameralik’s actions were unreasonable in the circumstances.</p>
</blockquote>


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Answer 4: <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>The scenario you describe <strong>would</strong> be considered violence by the assailant. And also rape. There is <a href="https://www.gesetze-im-internet.de/stgb/__32.html" rel="nofollow noreferrer">§32(2) StgGB</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 stop a present, unlawful attack on oneself or others. (My translation.)</p>
</blockquote>
<ul>
<li>Your fictional case describes a <em>present</em> attack.</li>
<li>It also describes an <em>unlawful</em> attack (see above).</li>
<li>Stabbing the assailant is <em>suitable</em> to stop the rape.</li>


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<li>It also describes an <em>unlawful</em> attack (see above).</li>
<li>Stabbing the assailant is <em>suitable</em> to stop the rape.</li>
<li>Which leaves, as a last point, the question if lethal force is <em>necessary</em> to stop the attack.</li>
</ul>
<p>The last bullet point does not require the victim to make a strict test of proportionality, only to test if lesser means are readily at hand. Lethal force is allowed to stop a rape if the victim sees no non-lethal way.</p>
<p>Precedent rules out self-defense if there is a <em>gross</em> disproportionality between the unlawful attack and the defense. A common example would be shooting somebody as the only feasible way to prevent the theft of an apple from an orchard. But that is not the case here.</p>


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<p>Of course things depend on the details. Say the first stab cripples the leg of the assailant, and the defender is in a position to realize this. Then the defender could simply back off and walk away. Likewise, if the assailant sees the knife and starts to run away, the <em>present</em> attack stops.</p>
<p>It would also get complicated if the victim knew that the assailant was unable to take criminal responsibility for his acts. For instance, the permission of disproportionate defense from §32 does not apply if the assailant is a small child.</p>


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Question Body: <p>Most countries I know of have regulations on marriage or partnership and there's a registration office for a change in marital status. But as far as I can tell, that's purely a civil matter. Getting married may change your tax quotes, or who inherits your stuff once you pass away, but it has no implications in criminal law. In former times, this was different, as e.g. the bible requests that a couple that is found during adultery shall be stoned.</p>
<p>Now Bob finds his wife Alice in bed with Charles. Does he have any way of Alice getting a fine or a jail sentence? Or some other legal action against her (assuming he doesn't want to get divorced)? Or is it really true that the state doesn't care anything about a marriage except keeping a registry of it?</p>


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<p><strong>Edit:</strong> The comments and the first answer suggest that there are US states that have such laws (which I didn't expect). However I'm particularly interested in European countries. And also in possible penalties. The linked question seems to indicate that even where such a law exists, it is not enforced.</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><strong>Criminal Consequences Of Adultery</strong></p>
<p><em>State Criminal Laws</em></p>
<p>In a <a href="https://en.wikipedia.org/wiki/Adultery_laws#United_States" rel="noreferrer">large majority of U.S. jurisdictions</a>, adultery is no longer a crime (assuming the sexual act is consensual and not incestuous) including 35 U.S. states, the District of Columbia, and the several U.S. territories. &quot;States which have decriminalised adultery in recent years include West Virginia (2010), Colorado (2013), New Hampshire (2014), Massachusetts (2018), Utah (2019), Idaho (2022), and Minnesota (2023).&quot;</p>


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<p>Adultery is rarely enforced criminally in the 15 states and Puerto Rico, as of 2023, that still do have adultery laws on the books that have not been held unconstitutional by state courts. This is, in part, due to doubts about the constitutionality of these crimes under federal and state constitutions, in part, due to changing norms, and in part, due to the limited benefit of a misdemeanor or felony prosecution to all persons involved (and the state) in such cases.</p>
<p>The birth of a child who is conceived with a father other than the mother's husband while the mother is married is not automatically conclusive proof of the crime of adultery under either state law or under the U.S. Code of Military Justice.</p>


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<p>For example, under South Carolina law adultery involves either &quot;the living together and carnal intercourse with each other&quot; or, if those involved do not live together &quot;habitual carnal intercourse with each other&quot; which is more difficult to prove. Similarly, in Florida, the crime is &quot;Living in open adultery&quot;.</p>
<p>Also, in the case of a prosecution of an unmarried man, knowledge that the woman is married would typically be an element of the crime of adultery, and it is similarly never a crime to be raped in the U.S., even if you are married.</p>


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<p>In 12 of the states where adultery is still a crime (Arizona, Alabama, Florida, Georgia, Illinois, Kansas, Maryland, Mississippi, New York, North Dakota, South Carolina, and Virginia), it is a petty offense (the maximum punishment in Maryland is a $10 fine), or is a misdemeanor. But it continues to be a felony in 3 states (Oklahoma, Michigan, and Wisconsin) and is punishable most severely among those states in Michigan who someone convicted of adultery faces up to four years in prison and in Oklahoma where the maximum sentence is five years in prison.</p>
<p><em>Military Justice</em></p>
<p>It is a crime that is actively enforced for active duty members of the U.S. military under the U.S. Code of Military Justice.</p>
<p>In the U.S. military, adultery is a potential court-martial offense, falling under the General article (Art. 134). The Manual for Courts-Martial defines (para. 99) &quot;Extramarital sexual conduct&quot; as being:</p>
<blockquote>


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<blockquote>
<p>Elements.(1) That the accused wrongfully engaged in extramarital
conduct as described in subparagraph c.(2) with a certain person; (2)
That, at the time, the accused knew that the accused or the other
person was married to someone else; and (3) That, under the
circumstances, the conduct of the accused was either: (i) to the
prejudice of good order and discipline in the armed forces; (ii) was
of a nature to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed forces and of a
nature to bring discredit upon the armed forces.</p>
</blockquote>
<p>U.S. military law on adultery was revised in 2019 in order to include same-sex encounters in the offense.</p>
<p>Neither the U.S. military, nor any U.S. state, has penalties for adultery that differ depending upon whether or not the adultery results in the birth of child.</p>
<p><em>Federal Constitutionality</em></p>


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<p><em>Federal Constitutionality</em></p>
<p>The U.S. Supreme Court has not ruled on the constitutionality of adultery crimes since its ruling in <em>Lawrence v. Texas</em>, 539 U.S. 558 (2003) which decriminalized any kind of sex between consenting unmarried adults that does not constitute prostitution, as a matter of constitutional law (including sex between married adults with each other).</p>


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<p>The highest court of the State of Massachusetts declared its adultery statute unconstitutional as a violation of the U.S. Constitution in the case of <em>Commonwealth v. Stowell</em>, 449 N.E.2d 357, 389 Mass. 171 (1983). But, the U.S. Supreme Court's decision in  <em>Bowers v. Hardwick</em>, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), holding that the U.S. Constitution did not invalidate a state sodomy statute in a case involving tow consenting men, largely discouraged constitutional challenges until <em>Lawrence</em> overruled <em>Bowers v. Hardwick</em> in 2003. <em>See, e.g., Oliverson v. W. Valley City</em>, 875 F. Supp. 1465, 1482 (D. Utah 1995) (holding that &quot;The claim of the right to commit adultery cannot be considered “fundamental.&quot;, and denying a constitutional challenge to a police officer being disciplined for adultery while not on duty, in reliance on <em>Bowers v. Hardwick</em>).</p>


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<p>In the two decades prior to <em>Lawrence</em>, however, no state or federal court has declared an adultery statute unconstitutional on U.S. Constitutional grounds, despite the fact that there have been a handful of adultery prosecutions in this time period in some of the states where adultery remains a crime.</p>


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<p>For example, there was <a href="https://www.latimes.com/opinion/op-ed/la-oe-rhode-decriminalize-adultery-20160429-story.html" rel="noreferrer">one prosecution in Virginia in 2004</a>, and <a href="https://abcnews.go.com/TheLaw/woman-charged-adultery-challenge-york-law/story?id=10857437" rel="noreferrer">another one in New York State in 2010</a>. On the other hand, the last time someone was prosecuted for adultery in Wisconsin was <a href="https://www.sterlinglawyers.com/wisconsin/divorce/adultery-laws/" rel="noreferrer">in 1990</a>. I am not aware of any post-<em>Lawrence</em> adultery prosecution by a state government that has led to appeal that produced a published or binding precedents on the issue of the constitutionality of these state adultery statutes. This is, in part, because prosecutions for adultery in state courts are rare and are misdemeanor prosecutions in most cases. But, appeals of minor misdemeanor convictions are rare.</p>


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<p>Courts within the U.S. military justice system, at least, have expressly rejected constitutional challenges to the Uniform Code of Military Justice's adultery prohibition since <em>Lawrence</em> was decided. <em>See, e.g.</em>, C. Scott Maravilla, &quot;<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1003689" rel="noreferrer">Prosecuting Adultery Under the Uniform Code of Military Justice After <em>Lawrence V. Texas</em></a>&quot; (July 29, 2007).</p>
<p><strong>Other Criminal Law Considerations</strong></p>
<p>Giving birth itself, regardless of the circumstances, is never a crime in the United States.</p>
<p>Some sexual acts which can sometimes result in the conception of a child are crimes (most obviously incest and rape, including statutory rape and abuse of a position of trust rape). But these offenses are not related to marital status unlike a true adultery charge.</p>


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<p>A murder of the spouse or the non-spouse with whom that spouse is engaged in adultery in the heat of passion immediately following the discovery of them &quot;in the act&quot; is a mitigating factor. This can reduce a murder charge to a manslaughter charge in many states. This incomplete defense to a murder charge is known as the &quot;heat of passion&quot; defense.</p>
<p><strong>Paternity</strong></p>
<p>The U.S. Supreme Court has also held that the &quot;other man&quot; in an affair with a married woman who gives birth as a result does not have a constitutional right to seek to have his paternity of the child legally established. <em>See Michael H. v. Gerald D.</em>, 491 U.S. 110 (1989).</p>
<p>Thus, the standing of the &quot;other man&quot; to bring suit to determine that he is the father of such a child is purely a matter of state law.</p>


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<p>Thus, the standing of the &quot;other man&quot; to bring suit to determine that he is the father of such a child is purely a matter of state law.</p>
<p>The state laws addressing this question and some related questions are addressed in the article, &quot;<a href="https://www.clasp.org/sites/default/files/public/resources-and-publications/publication-1/0113.pdf" rel="noreferrer">TRUTH AND CONSEQUENCES: PART II: Questioning the Paternity of Marital Children</a>&quot; (2002) by Paula Roberts.</p>
<p><strong>Civil Liability</strong></p>
<p>In a handful of U.S. states a husband can bring a lawsuit for money damages (called alienation of affections or &quot;criminal conversation&quot; despite the fact that it is a civil lawsuit) against someone who has sex with his wife. The vast majority of U.S. states have abolished such lawsuits, however.</p>


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<p>In fiscal years 2000–2007, there were an average of 230 alienation of affections filings in North Carolina per year — a bit over 0.5% of the number of all divorces. The tort is also recognized in Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah, but it is frequently litigated only in North Carolina and in Mississippi.</p>
<p>Many of the states where the tort is not commonly used impose restrictions on it that make it less attractive. In Illinois, Hawaii and New Mexico, these limitations make it exceedingly difficult to prevail in an alienation of affections case and recover substantial monetary damages. The standard of proof is lower in Utah and South Dakota, which continue to have actively litigated alienation of affections suits, although not used as often in these states as in North Carolina and Mississippi, for reasons that are presumably unrelated to the relevant legal standards that apply to these lawsuits.</p>


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<p>Also, in a rape case, a rape victim can bring a civil lawsuit for money damages against the rapist for assault and battery in most cases, and in those cases, many states allow a spouse of a rape victim to bring a parallel lawsuit against the person who committed the assault that is called a lawsuit for loss of consortium. The right to sue for loss of consortium is not specific to rape cases; it applies in all lawsuits for personal injury where it is available.</p>
<p>Civil lawsuits involving rape cannot be subject to arbitration requirements by a pre-dispute contract between the parties to submit all disputes between them to arbitration (e.g. in a suit between an employee and an employer related to conduct that facilitated a co-worker's rape of the employee under sex discrimination laws) under a federal law enacted effective in the year 2022.</p>


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<p>The U.S. Supreme Court has repeatedly declined to grant petitions for certiorari seeking to have laws establishing civil liability in these cases declared unconstitutional.</p>
<p><strong>Divorce Implications</strong></p>
<p>In most U.S. state, divorce is granted without regard to marital fault and adultery is not considered in alimony awards or property divisions.</p>
<p>While every U.S. state has some form of no fault divorce, and number of U.S. states also have fault based divorce, and a number of U.S. states, however, allow consideration of adultery as a form of marital fault in divorce proceedings, including how much, if any alimony is awarded and in property divisions.</p>
<p>No state would consider being raped an act of marital fault, however, even if this caused a wife to give birth to a child whose biological father was not her husband, and even if the husband wanted her to have an abortion.</p>
<h3>Selected Non-U.S. Criminal Adultery Laws</h3>


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<h3>Selected Non-U.S. Criminal Adultery Laws</h3>
<p>Adultery is no longer a crime in any European country, Turkey, Australia, South Korea, Japan, Taiwan, the People's Republic of China, or India. Adultery is no longer a crime in most or all of Latin America.</p>
<p>Adultery is a crime in the Philippines (in a manner that punishes married women more severely than married men). It is notable that in this case, that the Philippines has a significant Muslim minority population. Adultery is also a crime in Indonesia and in Bangladesh.</p>
<p>Adultery is also a crime according to Wikipedia at the first link in this answer, in &quot;several sub-Saharan African Christian-majority countries.&quot; One of these countries is Rwanda.</p>
<p>And, according to Wikipedia at the first link in this answer:</p>
<blockquote>
<p>In Muslim countries that follow Sharia law for criminal justice, the
punishment for adultery may be stoning. There are fifteen countries in


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<blockquote>
<p>In Muslim countries that follow Sharia law for criminal justice, the
punishment for adultery may be stoning. There are fifteen countries in
which stoning is authorized as lawful punishment, though in recent
times it has been legally carried out only in Iran and Somalia.
Countries which follow very strict versions of Sharia law in their
criminal systems include Saudi Arabia, Iran, Brunei, Afghanistan,
Sudan, Pakistan, 12 of Nigeria's 36 states (in Northern Nigeria) and
Qatar; although these laws are not necessarily enforced. Al-Shabaab, a
jihadist fundamentalist group based in East Africa (mainly Somalia)
and Yemen also implements an extreme form of Sharia.</p>
</blockquote>
<p>Obviously, this answer is not absolutely complete. It leaves the status of a number of particular countries unresolved.</p>


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Answer 2: <p>Adultery is not a crime in any European country, the last being Romania which repealed its law against adultery in 2006. In a few states of the US it is a crime (New York, Oklahoma, Michigan, Wisconsin etc). It is a capital offense in Saudi Arabia, Pakistan, Brunei, Iran, and Somalia.</p>


Answer 3: <p>Yes. In the United States military, for in instance, adultery <a href="https://www.army.mil/article/61709/legal_separation_adultery_and_the_ucmj" rel="noreferrer">can subject you to court-martial</a>.</p>


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Answer 4: <ul>
<li><a href="https://www.firstpost.com/explainers/indonesia-criminalises-adultery-which-other-nations-have-outlawed-extramarital-affairs-11763721.html#" rel="nofollow noreferrer">Indonesia</a></li>
<li>Saudi Arabia</li>
<li>Somalia</li>
<li>Iran</li>
<li>Qatar</li>
<li>Pakistan</li>
<li>Afganistan</li>
<li>Bangladesh</li>
<li>Rwanda</li>
<li>Alabama, Arizona, Florida, Georgia, Idaho, Illinois, Kansas, Massachusetts, Michigan, Minnesota, Mississippi, New York, North Dakota, Oklahoma, South Carolina, Utah, Virginia and Wisconsin (although rarely enforced).</li>
<li>The Phillipines</li>
</ul>
<p>The list is not necessarily exhaustive. Penalties range from fines through imprisonment to death by stoning.</p>


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<li>The Phillipines</li>
</ul>
<p>The list is not necessarily exhaustive. Penalties range from fines through imprisonment to death by stoning.</p>
<p>In most countries “adultery” is <em>any</em> extra-marital sex even between single people. Be aware, that in many of these jurisdictions, woman who have been <a href="https://thenewdaily.com.au/life/travel/2016/06/14/gulf-state-rapes/" rel="nofollow noreferrer">raped</a> have been successfully prosecuted for adultery. In some Arabic states, unmarried couples sharing the same hotel room is sufficient evidence to lead to an adultery conviction - this includes people who have legal civil partnerships at home.</p>
<p>It should go without saying that most of these countries have laws against public indecency (which can include kissing or texting) and homosexual sex.</p>


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Question Body: <p>If <em>no charges have been filed</em>, do courts have any responsibility to protect a suspect's privacy during an investigation? Example below. Let's say this is in New Jersey, United States.</p>
<p>Mrs. X is under investigation for an alleged crime (say, embezzling from her employer). Prosecutors have obtained a search warrant and seized her computer. X's attorney files a motion arguing against the validity of the computer search, and a court date is selected for a hearing before a judge.</p>


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<p>At that hearing, the prosecutor requests that the courtroom be closed to the public, to protect X's privacy since no charges have been filed. (Perhaps this is her office's policy in these circumstances; her motivation is not clear at this point.) The judge rejects the prosecutor's request and refuses to seal the courtroom. Members of the public witness the court proceedings and learn that X is under investigation for embezzling from her employer. Not only has X not been convicted of any crime; she hasn't even been charged yet (and indeed might never be).</p>
<p>Have any of X's rights been violated? Did she have any right to not have her name tarnished before enough evidence was gathered to even charge her with a crime?</p>
<p>(And: if her rights have indeed been violated, does she have any legal recourse?)</p>


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Answer 1: <blockquote>
<p>Mrs. X is under investigation for an alleged crime (say, embezzling
from her employer). Prosecutors have obtained a search warrant and
seized her computer. X's attorney files a motion arguing against the
validity of the computer search, and a court date is selected for a
hearing before a judge.
At that hearing, the prosecutor requests that the courtroom be closed
to the public</p>
</blockquote>
<p><em>Search warrants</em></p>
<p>Search warrants are generally issued <em>ex parte</em> (i.e. without an adversarial hearing) and are routinely kept secret until they have been carried out. Targets of search warrants are often, but hardly always, the subject of criminal investigations. Search warrants can only be issued upon a showing a probable cause to believe that the search will reveal evidence pertinent to a crime that has been committed.</p>


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<p>If a search warrant is issued wrongfully, the remedies are a motion to suppress illegally obtained evidence, and/or a civil lawsuit for money damages, after the search has been completed.</p>
<p>Conceivably, a search warrant target could argue that the affidavit providing a basis for the search should continue to be kept under seal, but, unless this was necessary for a grand jury investigation to continue in secrecy, this request would usually be denied.</p>
<p><em>Subpoenas</em></p>
<p>A subpoena does not require a showing of probable cause to issue and can be contested before documents are turned over pursuant to it by the person to whom it is directed (and sometimes other people as well), but a subpoena is rarely issued to an actual target of a criminal investigation.</p>
<p>A prosecutor can usually maintain secrecy by conducting an investigation through a grand jury which has subpoena power.</p>


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<p>A prosecutor can usually maintain secrecy by conducting an investigation through a grand jury which has subpoena power.</p>
<p>Protecting the privacy of a subpoena target would not be a valid reason for closing the courtroom.</p>
<p>But a prosecutor's desire to not tip off other subjects of the grand jury investigation, which a public hearing on quashing a grand jury subpoena might do, would be a basis for a valid request from the prosecutor to close the hearing to the public.</p>
<blockquote>
<p>Have any of X's rights been violated?</p>
</blockquote>
<p>No.</p>
<p>There is a constitutional right of the public and the press to attend court hearings in most circumstances.</p>
<p>There is no constitutional right to not have your reputation tarnished by criminal prosecutors in the course of a criminal investigation.</p>
<p>Also, generally speaking, prosecutors have absolute immunity from liability for any conduct they commit in the course of a courtroom process.</p>
<blockquote>


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<p>Also, generally speaking, prosecutors have absolute immunity from liability for any conduct they commit in the course of a courtroom process.</p>
<blockquote>
<p>Did she have any right to not have her name tarnished before enough
evidence was gathered to even charge her with a crime?</p>
</blockquote>
<p>No.</p>
<p>Similar arguments were soundly rejected by an appellate court panel, for example, in the <a href="https://www.cbsnews.com/news/trump-motion-mar-a-lago-search/" rel="noreferrer">classified documents criminal investigation of former President Trump</a>.</p>


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Question Title: Meaning of &#39;Gift of Residue&#39; section of a will

Question Body: <p>This section is in a family member's will:</p>
<blockquote>
<p>Gift of Residue</p>
<p>I give my Residuary Estate to the said [Full Name] absolutely and if [Name] shall fail to obtain a vested interest leaving issue who survive me then such issue shall take by substitution and if there shall be more than one of such issue they shall take in equal shares per stirpes but so that no issue shall take whose parent is alive and so capable of taking.</p>
</blockquote>
<p>What does this mean?</p>


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Answer 1: <p><strong>What does this paragraph mean? Line by line.</strong></p>
<blockquote>
<p>I give my Residuary Estate</p>
</blockquote>
<p>This is a gift, effective when the person writing the Will dies, of everything that is left over after all debts and taxes are paid and after any other gifts already in the Will (e.g. leaving a car or a house or a Monet to someone in particular) have been given.</p>
<blockquote>
<p>to the said [Full Name] absolutely</p>
</blockquote>
<p>I'm going give [Full Name] a name so that it is easier to follow this explanation. [Full Name]'s name for purposes of this answer is &quot;Luna&quot;.</p>
<p>This says to give all that stuff to Luna when the person who wrote the Will dies, if Luna is still alive for whatever the required amount of time is after the person who wrote the Will dies.</p>
<p>The required survival time period is either in the boilerplate provisions of the Will, or in the relevant statute if the Will is silent on the question.</p>


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<p>The required survival time period is either in the boilerplate provisions of the Will, or in the relevant statute if the Will is silent on the question.</p>
<p>The Will says &quot;absolutely&quot; because historically, someone who received gifts of property in deed or wills in England only got to keep it for their lifetime, unless it clearly specified otherwise, after which someone else would get it. But in this case, if Luna survives this long, Luna gets all of this stuff with no strings attached.</p>
<blockquote>
<p>and if [Name] shall fail to obtain a vested interest leaving issue who
survive me then such issue shall take by substitution</p>
</blockquote>


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<blockquote>
<p>and if [Name] shall fail to obtain a vested interest leaving issue who
survive me then such issue shall take by substitution</p>
</blockquote>
<p>If Luna dies before the person who wrote the Will does, or doesn't stay alive for the required number of days afterwards, then Luna isn't entitled to this stuff. Luna's descendants get it instead (i.e. Luna's descendants &quot;take by substitution&quot; what Luna would have gotten if Luna had lived, instead of Luna's probate estate getting the stuff).</p>
<blockquote>
<p>and if there shall be more than one of such issue they shall take in
equal shares <em>per stirpes</em> but so that no issue shall take whose parent
is alive and so capable of taking.</p>
</blockquote>


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equal shares <em>per stirpes</em> but so that no issue shall take whose parent
is alive and so capable of taking.</p>
</blockquote>
<p>If Luna predeceases and has exactly one living descendant who is alive when the person who wrote the Will dies, and that living descendant lives the required number of days after the person who wrote the Will dies, then the sole living descendant of Luna gets all of the stuff that is left over when the person who wrote the Will dies.</p>
<p>If Luna has more than one living descendant, the stuff that is left over when the person who wrote the Will dies, then Luna's descendants gets broken up the way described below, which is called <em>per stirpes</em>:</p>
<ol>
<li><p>Create one share for each child of Luna who is alive and survives Luna by the required amount of time. If Luna has only one living child, that child gets everything even if Luna's child has children of their own.</p>
</li>


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</li>
<li><p>Create one share for each child of Luna who didn't live for long enough after the person who wrote the Will's death, if the predeceased child has descendants who are alive and remain alive after the person who wrote the Will dies by the required amount of time. This share is then broken up into one sub-share for each child of the predeceased child who is alive when the person who wrote the Will dies and is still alive after the person who wrote the Will dies by the required amount of time, and one sub-share for each predeceased child of the predeceased child who has living descendants who remain alive for the requisite number of days.</p>
</li>
<li><p>Continue this process until 100% of the the residuary estate has been assigned to someone and give them their share of it once the estate is settled.</p>
</li>


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</li>
<li><p>Continue this process until 100% of the the residuary estate has been assigned to someone and give them their share of it once the estate is settled.</p>
</li>
<li><p>If someone lives past the minimum number of days to outlive the person who wrote the Will, and then dies, that person's share goes that person's probate estate.</p>
</li>
</ol>
<p>For visual learners, a <em>per stirpes</em> distributions of assets looks like this:</p>
<p><a href="https://i.stack.imgur.com/4eDN9.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/4eDN9.png" alt="per stirpes distribution" /></a></p>
<p>A <em>per stirpes</em> distribution to descendants is the plain vanilla ordinary way to giving stuff to the descendants of a dead person when you don't know in advance who will outlive you.</p>
<p><strong>What if Luna predeceases with no living descendants?</strong></p>


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<p><strong>What if Luna predeceases with no living descendants?</strong></p>
<p>Usually, this paragraph of a Will will be followed by another paragraph called the &quot;ultimate contingent beneficiary&quot; which says who gets the stuff that's left over in the residuary estate if Luna predeceases the person who wrote the Will and has no living descendants.</p>
<p>Often, the ultimate contingent beneficiary will be one or more distant relatives, a list of friends, or a charity.</p>
<p>If there is no ultimately contingent beneficiary in the Will, but Luna and all of Luna's descendants predecease the person who wrote the Will, then it goes to the next of kin (a.k.a. &quot;heirs at law&quot;) of the person who wrote the Will, if there are any relatives of the person who wrote the Will who are close enough to qualify to inherit under English inheritances law.</p>


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<p>If there is no one closely enough related to the person who wrote the Will to qualify under English inheritance law, then the stuff &quot;escheats&quot;  (i.e. is inherited by default) by the King (or Queen) of England, as the case may be.</p>
<p><strong>There are some circumstances when the Will can be ignored.</strong></p>
<p>Everything above explains what this language in the Will means. This isn't always what happens, however.</p>
<p>There are several exceptions to the general rule that property goes to the people that the Will says it goes to. I won't list them all here, but it is important when a Will is being written to understand that this is the case.</p>
<p>For example, if the person who wrote the Will leaves nothing in the Will to their spouse of thirty years as of the death of the person who wrote the Will, who has no assets of their own, then the Court will partially ignore what the Will says and give some of the residuary estate to the surviving spouse.</p>


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<p>Also, the Will only controls assets that are in the &quot;probate estate&quot;. Some assets pass at death in what are called &quot;non-probate transfers&quot; that are not controlled by what the Will says.</p>
<p>And, finally, of course, if the Will was written when the person signing the Will was of unsound mind, the Will can be invalidated in a &quot;Will contest&quot; in the appropriate court if the person contesting the Will's validity can prove that the person signing it was of unsound mind at the time.</p>
<p><strong>This is mediocre legal writing</strong></p>
<p>This paragraph gets the job done, but it is not very well written by modern legal Will drafting standards.</p>
<p>It is adequate and probably meets the standard of care for a lawyer who hasn't committed malpractice. Lawyers in England have been writing paragraphs like this one for three or four hundred years.</p>


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<p>But it is not &quot;best practices&quot; legal writing in a Will. Good modern legal drafting for a Will would be much easier for a non-lawyer to understand, in addition to being clear and unambiguous.</p>


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Question Title: Liable of sexual abuse in civil case and no prison time?

Question Body: <p>It was reported a few minutes ago that <em>Trump Is Found Liable for Sexual Abuse in Civil Case</em>, but <em>&quot;Its findings are civil, not criminal, meaning Mr. Trump has not been convicted of any crime and faces no prison time.&quot;</em></p>
<p>Why is this trial different to other trials where a person that's found guilty of sexual abuse is sentenced to prison?</p>
<p>Is this different because he's an ex-president?</p>


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Answer 1: <p>There are many different kinds of laws, and many different ways of violating them. The main two are (1) criminal law, which generally addresses violations that injure the government's interests; and (2) civil law, which largely addresses violations that injure private parties' interests.</p>
<p>Some conduct can violate both sets of laws:</p>
<ul>
<li>If you steal something from a store, the government can put you in jail for theft, and the store can sue you for the value of the item you stole.</li>
<li>If you punch someone in the face, the government can can put you in jail for assault, and the person you punched can sue you to pay for their hospital bills.</li>
<li>If you grope a woman in a dressing room, the government can put you in jail for sexual assault, and the woman can sue you for battery.</li>
</ul>


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<li>If you grope a woman in a dressing room, the government can put you in jail for sexual assault, and the woman can sue you for battery.</li>
</ul>
<p>Donald Trump falls into that last category. Jean Carroll has sued him for battery, but the government cannot prosecute Trump for the crime because enough time has passed that the criminal statute of limitations has expired. Moreover, a civil trial cannot subject someone to jail time because such a deprivation of liberty requires greater procedural safeguards -- jury unanimity, proof beyond a reasonable doubt, etc. -- that do not always apply to civil trials like this.</p>
<p>Trump's status as ex-president has no bearing on the penalties the court may legally impose on him.</p>


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Answer 2: <h2>Civil cases can not lead to prison time</h2>
<p>Prison time is only available in criminal cases.</p>
<p>Civil cases lead to civil remedies, which are usually money or an order not to do something, very rarely an order to do something specific, but <strong>never</strong> prison time. A monetary award can be meant to make the claiming party whole (<em>damages</em>), to punish the sued party (<em>punitive award</em>), or both.</p>
<p>The case in question was civil in nature and resulted in a hefty monetary award for the plaintiff. The award contained both damages and punitive amounts.</p>
<h2>Why not a criminal trial?</h2>
<p>The problem is the statute of limitations of the actual criminal act had run out years ago, so no criminal case could be filed.</p>


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<h2>Why not a criminal trial?</h2>
<p>The problem is the statute of limitations of the actual criminal act had run out years ago, so no criminal case could be filed.</p>
<p>However, the statute of limitation for the civil act of defamation only started when Mr. Trump spoke about the plaintiff in a defaming manner sometime in 2019. The first case was brought timely in November 2019, while Trump was president. Since the civil lawsuit for defamation was brought timely, the case went forward. It is of note that due to the COVID-19 pandemic, during which the statute of limitations for many things was <em>halted</em> and thus extended, and as a result, the case could have been brought even later.  In this case Mr. Trump claimed was covered under presidential immunity.</p>


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<p>However, Mr. Trump did stop being president in 2020 and repeated the defaming statements in a statement of 2022, creating a new instance of defamation, which then was brought in a new case. As a private citizen... the case this time stuck with no defense.</p>
<p>There <em>also</em> was a Battery claim in there, which used a very narrow window opened by the <a href="https://en.wikipedia.org/wiki/Adult_Survivors_Act" rel="nofollow noreferrer">Adult Survivor Act</a> in which New York did re-wind the statute of Limitations - or rather a lookback window. This means that within one year from November 24th 2022, victims of sexual abuse after they had turned 18 can file a case to seek <strong>civil remedies</strong> <em>regardless</em> of the year in which the abuse took place.</p>


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Answer 3: <p>There is criminal law, and there is civil law. If you are convicted of breaking criminal law, you can go to jail for that. The rule is that your guilt must be proven &quot;beyond reasonable doubt&quot;</p>
<p>In a civil court, you can be accused of causing damage, If you are convicted you may be convicted of paying those damages, plus possible extra damages. The rule is that to be convicted in a civil court, your guilt must be established on the basis of probabilities, say 51% chance that you are guilty.</p>
<p>It is absolutely common that there is enough proof to order payment in a civil court (51% chance of guilt) but not enough for a criminal conviction (guilt beyond reasonable doubt).</p>


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<p>It is absolutely common that there is enough proof to order payment in a civil court (51% chance of guilt) but not enough for a criminal conviction (guilt beyond reasonable doubt).</p>
<p>Consider a case where our cars crashed, but it's not obvious whether my car damaged yours, or yours damaged mine. It is quite clear that ONE of us should pay for the damage. The one paying is the one who is more likely guilty, even though none of us is guilty beyond reasonable doubt.</p>
<p>PS. It seems the case was brought years after the event. At that time I’m told statute of limitations had run out for any criminal charges, but not for a civil case. So in this case Mr Trump couldn’t be criminally convicted even if evidence would have normally shown him guilty beyond reasonable doubt.</p>


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<p>A woman in the UK had the opposite happen to her: She was raped, the rapist convicted, and she didn’t sue for damages because there was no money. Six years later the convicted criminal won millions in the lottery, but the time had run out for her to sue for damages.</p>


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Question Title: Medical POA and a Home Health Aid

Question Body: <p>Imagine a standard POA for medical has been given to an adult son for his parent to become effective when the parent cannot speak for him/her self. It has been determined by several doctors that the parent has dementia and cannot speak for herself.</p>
<p>Would the POA for medical enable the adult son to bring in a home health aid into the parent's home against her wishes?</p>
<p>My guess is no because the parent still control's her  home.</p>


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Answer 1: <p>Your guess is correct (although an aggressive person could argue that the parent would never have the wherewithal to sue to complain about it).</p>
<p>The adult son really needs to have a guardianship established by a court, because a POA isn't sufficient to do what needs to be done.</p>
<p>Usually, an agent in a POA has priority for appointment as a guardian, and if the facts are clear, it isn't necessary to hard to get a guardianship established. But it does take money and it isn't instantaneous.</p>


Tags: united-states, medical, new-jersey


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Question Title: Under which law is the police allowed to hold one&#39;s passport and phone after being in detention for 21 hrs?

Question Body: <p>Is the UK police allowed to hold one's passport and phone for further &quot;investigation&quot; after he had been in detention for 21 hours?</p>
<p>Further the police told him that he is not allowed to leave his flat.</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>The length of time a suspect is held in police custody before being released is unrelated to the police's power (and duty) to sieze potential evidence for further examination or to require e.g. the surrender of a passport as a condition of pre-charge bail (along with the requirement not to apply for international travel documents or tickets etc).</p>
<p>If the suspect is assessed to be a flight risk, under <a href="https://www.legislation.gov.uk/ukpga/1984/60/section/50A" rel="nofollow noreferrer">section 50A(2)(a)</a> Police and Criminal Evidence Act 1984 (PACE) they can retain a passport if they see...</p>
<blockquote>
<p>the need to secure that the person surrenders to custody</p>


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<blockquote>
<p>the need to secure that the person surrenders to custody</p>
</blockquote>
<p>The retention of property, such as a phone, is allowed under <a href="https://www.legislation.gov.uk/ukpga/1984/60/section/22?timeline=false" rel="nofollow noreferrer">section 22</a> PACE:</p>
<blockquote>
<p>(1) Subject to subsection (4) below, anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section 19 or 20 above may be retained so long as is necessary in all the circumstances.</p>
<p>(2) Without prejudice to the generality of subsection (1) above—</p>
<ul>
<li>(a) anything seized for the purposes of a criminal investigation may be retained, except as provided by subsection (4) below—</li>
</ul>
<blockquote>
<ul>
<li><p>(i) for use as evidence at a trial for an offence; or</p>
</li>
<li><p>(ii) <strong>for forensic examination or for investigation in connection with an offence</strong>; and</p>
</li>
</ul>
</blockquote>


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</li>
<li><p>(ii) <strong>for forensic examination or for investigation in connection with an offence</strong>; and</p>
</li>
</ul>
</blockquote>
<ul>
<li>(b) anything may be retained in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence.</li>
</ul>
<p>(3) [...]</p>
<p>(4) Nothing may be retained for either of the purposes mentioned in subsection (2)(a) above if a photograph or copy would be sufficient for that purpose.</p>
<p>[...]</p>
</blockquote>


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Question Title: What is the Constitutional justification for Federal gun possession laws?

Question Body: <p>The US Constitution reserves to the states all powers not expressly delegated to the Federal government. What is the Constitutional provision that allows for Federal laws such as the law that felons may not possess firearms?</p>
<p>This appears to be <a href="https://www.law.cornell.edu/uscode/text/18/922" rel="nofollow noreferrer">18 USC § 922(g)</a>.</p>
<p>So, the argument is that because a gun was at one time transported across a state line, the federal government can make laws about who can possess it?</p>
<p>What about a gun that was not transported across a state line, but manufactured in the same state that the felon, or stalker or whatever lives in?</p>


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Answer 1: <p>The <a href="https://en.wikipedia.org/wiki/Commerce_Clause" rel="nofollow noreferrer">Interstate Commerce Clause</a> effectively means all economic activity in the US is under Federal jurisdiction because even something that's not directly involved in interstate commerce, even something not involved in commerce at all, can have an indirect effect on interstate commerce. In <a href="https://en.wikipedia.org/wiki/Wickard_v._Filburn" rel="nofollow noreferrer">Wilkard v. Filburn</a> the government successfully argued that Federal limits on wheat production were enforceable on a farmer that grew his own wheat to feed his own animals even though the farmer never sold his wheat to anyone and the wheat never left the state. A similar more recent case, <a href="https://en.wikipedia.org/wiki/Gonzales_v._Raich" rel="nofollow noreferrer">Gonzales v. Raich</a>, confirmed that this same principle applied to someone growing medical marijuana for personal consumption in a state where


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rel="nofollow noreferrer">Gonzales v. Raich</a>, confirmed that this same principle applied to someone growing medical marijuana for personal consumption in a state where medical marijuana was legal.</p>


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<p>In your example, the felon is buying a gun manufactured in the same state. While this doesn't have a direct immediate effect on interstate commerce, its indirect effects are more obvious than in the two cases mentioned above. If it were legal for felons to buy guns made in state, but not out-of-state, then it would have a fairly dramatic effect on interstate commerce. Gun manufacturers would set up local manufacturing operations in many states to make guns for the felon market. (In theory at least, in practice I think most if not all states also ban felons from owning guns.) </p>

<p>Also since guns are durable items, unlike wheat and marijuana, it's all but impossible to show that the gun will never leave the state and participate in interstate commerce directly.</p>


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Answer 2: <p>The justification for federal jurisdiction is the commerce clause. But it doesn't automatically apply to every firearm; the connection to interstate commerce must be real for the law to apply.</p>
<p>In <a href="https://supreme.justia.com/cases/federal/us/514/549/" rel="nofollow noreferrer">United States v. Lopez</a> (1995), the Supreme Court held the following when striking down the related 922(q) which at that time banned firearms in schools zones but did <em>not</em> have a clause about interstate commerce (emphasis mine):</p>
<blockquote>


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<p>... although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. Section 922(q) is a criminal statute that by its terms has nothing to do with &quot;commerce&quot; or any sort of economic enterprise, however broadly those terms are defined. Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under the Court's cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which, viewed in the aggregate, substantially affects interstate commerce. Second, § 922(q) contains no jurisdictional element that would ensure,


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of or are connected with a commercial transaction, which, viewed in the aggregate, substantially affects interstate commerce. Second, § 922(q) contains no jurisdictional element that would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, <strong>and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.</strong> To uphold the Government's contention that § 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.</p>


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</blockquote>
<p>The constituionality of 922(g) was later also challenged in court, with a different result.  In <a href="https://law.justia.com/cases/federal/district-courts/FSupp/968/1564/1948100/" rel="nofollow noreferrer">National Ass'n of Government Employees v. Barrett</a>, (N.D. Ga. 1997), the court upheld the constitutionality of 922(g), stating (emphasis mine, some citations shortened):</p>
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<p>Plaintiffs first assert that Congress exceeded its authority under the Commerce Clause with the enactment of § 922(g) (9) and that § 922(g) (9) is thus unconstitutional. In making this assertion, plaintiffs rely on the Supreme Court's decision of United States v. Lopez, in which the Court held that Congress exceeded its authority under the Commerce Clause by regulating the mere possession of a gun. Plaintiffs' reliance on this decision is, however, misplaced. Section 922(g) (9), unlike the statute at issue in Lopez, <strong>contains a jurisdictional element, which requires the government to demonstrate that the firearm was possessed &quot;in or affecting commerce&quot; or received after having &quot;been shipped or transported in interstate or foreign commerce.&quot;</strong> This element is fatal to plaintiffs' facial challenge to the constitutionality of § 922(g) (9). See, e.g., United States v. McAllister, (upholding the constitutionality of § 922(g) (1), which makes it unlawful


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is fatal to plaintiffs' facial challenge to the constitutionality of § 922(g) (9). See, e.g., United States v. McAllister, (upholding the constitutionality of § 922(g) (1), which makes it unlawful for felons to possess a firearm, because it contained a jurisdictional element); United States v. Turner, (noting that every court of appeals &quot;has held that <strong>the jurisdictional element of § 922(g) provides the requisite nexus with interstate commerce that § 922(q), [the statute at issue in Lopez,] lacked&quot;).</strong> Accordingly, defendants are entitled to dismissal of plaintiffs' claims to the extent that those claims are brought under the Commerce Clause.</p>


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</blockquote>
<p>I think it's clear from these decisions that the interstate commerce nexus is required for this or any similar law to be constitutional. This isn't a case like Gonzales v. Raich; the firearm is legal to sell across state lines for most people, just not for felons, and so its mere existence can't affect interstate commerce.</p>
<p>So, my conclusion is that a gun made totally in-state, with in-state parts, would not violate this law - and furthermore, Congress cannot constitutionally modify the law to change this.</p>
<p>But as the court in <a href="https://caselaw.findlaw.com/nj-superior-court-appellate-division/1142366.html" rel="nofollow noreferrer">State v. Wahl</a> (N.J. Super. Ct. 2004) said:</p>
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<p>We also note that the market in firearms is heavily interstate in nature, even international in character, and it would be indeed rare that a firearm, or at least some of its component parts, would have never moved across state lines... Indeed, no more is required than a minimal nexus that the firearm had been, at some point, in interstate commerce.</p>
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<p>So it might be difficult to find a gun that doesn't violate this law. Given that it is probably <em>also</em> a violation of state law for a felon to possess a gun regardless of where it was manufactured, I don't see felons going around using in-state guns just to avoid a federal charge on top of the state one.</p>


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Question Title: Can an independent contractor from Zimbabwe have a bank account in South Africa to receive income from a South African company?


