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</blockquote>
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<p>Though the courts now have clearly adopted an objective approach to the analysis of contract, they occasionally use language that suggests that what is subjectively in the minds of the parties is important. <strong>It is sometimes said that there has to be a <em>consensus ad idem</em> (in Latin, literally “agreement to the same thing”) or that the parties “minds have to be at one”. Statements like this are misleading. No legal system can require that there be an actual “meeting of the minds”</strong>, for that would provide too much of an incentive to those who would like to contract with their “fingers crossed”. The requirement that a subjective agreement exist would permit one party to stay with a contract only so long as it suited its convenience; when it did not, the party could claim that it had never really agreed to the other’s terms.</p>


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<p>(<em>MacNeil v. Dana Canada Corporation</em>, <a href="https://canlii.ca/t/1zjnq#par13" rel="noreferrer">2008 CanLII 35689 (ON SC), at para 13</a>, quoting Swan, Reiter &amp; Bala, <em>Contracts: Cases, Notes &amp; Materials</em>).</p>
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Question Title: Is there any law against a Presidential candidate making trade deals that are conditioned on their election to office?

Question Body: <p>Sideshow Bob has once again declared his candidacy for President. As a demonstration of his ability to negotiate with foreign powers, Bob wants to negotiate a trade deal with a foreign government, with the mutual understanding that the trade deal cannot take effect unless and until Bob formalizes the trade deal as President (assuming neither the current nor any future President other than Bob wants the trade deal.)</p>
<p>Such conduct would appear to violate the text of the Logan Act; however, the sole intent of the Act appears to be to protect the foreign policy interests of the <em>current</em> US government. Since the trade deal would only take place in a hypothetical <em>future</em> US government, the current government's foreign policy interests would theoretically remain unaffected.</p>


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Answer 1: <h3>If I'm the Attorney General, Bob goes on trial.</h3>
<p>Let's look at the relevant text from the Logan Act.</p>
<blockquote>
<p>Any citizen of the United States, wherever he may be, who, without
authority of the United States, directly or indirectly commences or
carries on any correspondence or intercourse with any foreign
government or any officer or agent thereof, with intent to influence
the measures or conduct of any foreign government or of any officer or
agent thereof, in relation to any disputes or controversies with the
United States, or to defeat the measures of the United States, shall
be fined under this title or imprisoned not more than three years, or
both.</p>
</blockquote>
<p>I see no mention here of current or future administrations, only the influencing of foreign nations.  The semantics of current versus future administrations might be persuasive at trial, or might not.</p>


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<p>That said, just violating the Logan act isn't enough to get one charged with it.  Kissinger certainly wasn't charged.</p>


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Question Title: What are some exceptions to the principle of &quot;lex specialis&quot; that aren&#39;t &quot;lex superior&quot; and &quot;lex posterior&quot;?

Question Body: <p>The legal principle of <em>lex specialis</em> is that the special law derogates the general law in case of inconsistency. The primary alternatives to it are:</p>
<p><em>Lex superior</em> - the effect originating from the highest priority legal source (e.g. constitutions) derogates.</p>
<p><em>Lex posterior</em> - the effect originating from the most recently enacted legislation derogates. So, a future general law can override the current special law.</p>
<p>Are there any other principles whereby a past general law can override the present special law, even if it's not derived from a superior legal instrument such as a constitution?</p>


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Answer 1: <p>One of the principles of statutory interpretation in common law countries is that statutes are not deemed to displace common law rules unless this intent is clearly indicated by the statute. This is often phrased in the form: &quot;a statute in derogation of the common law is to be strictly construed.&quot;</p>
<p>This preserves an inferior and older law of general application, in favor of a newer, superior in authority, and more specific law.</p>
<p>For example, a law regarding federal government employee life insurance policy beneficiaries does not expressly provide that the designation of someone as a beneficiary is invalidated in the event that the beneficiary murders the person insured by the life insurance policy.</p>


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<p>Notwithstanding the language in the statute that says that a designated beneficiary of the life insurance policy is entitled to the benefits upon the insured's death, <a href="https://casetext.com/case/metropolitan-life-ins-co-v-kelley" rel="nofollow noreferrer">the courts have held</a> that the common law rule that a beneficiary of a life insurance policy who kills the insured is not entitled to the benefits of the policy overrides the express statutory statement that the designated beneficiary of a federal government employee life insurance policy is entitled to the benefits when the insured dies.</p>
<p>This result was reached based upon the rule that the common law is not displaced by a statute unless an intent to do so is clearly indicated by the statute.</p>
<p>There may be other exceptions to the rules of <em>lex specialis</em>, <em>lex superior</em>, and <em>lex posterior</em>, but this one is the first that came to mind.</p>


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<p>There may be other exceptions to the rules of <em>lex specialis</em>, <em>lex superior</em>, and <em>lex posterior</em>, but this one is the first that came to mind.</p>
<p>Some states, such as Utah, however, have overruled this interpretative provision. Utah Code § 68-3-2(1) states that:</p>
<blockquote>
<p>The rule of the common law that a statute in derogation of the common
law is to be strictly construed does not apply to the Utah Code.</p>
</blockquote>


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Answer 2: <p>The principles of lex specialis, lex superior, and lex posterior are some of the most well-known maxims used to resolve conflicts between laws. They provide a framework for determining which law applies when two laws seem to govern the same situation.</p>
<p>The situation you're describing — a past general law overriding a present special law without deriving from a superior legal instrument like a constitution — isn't traditionally covered by a single legal maxim. This is largely because lex specialis is designed specifically to prevent this situation: the idea is that a law addressing a specific situation should override a more general one.</p>
<p>However, legal systems are complex and have many principles and doctrines that could potentially apply, depending on the specifics of the situation. A couple of potential examples could be:</p>


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<p>However, legal systems are complex and have many principles and doctrines that could potentially apply, depending on the specifics of the situation. A couple of potential examples could be:</p>
<p>The doctrine of implied repeal: This doctrine suggests that where a later statute (even if general in nature) is inconsistent with an earlier, more specific statute, the later statute to the extent of the inconsistency repeals the earlier one.
The principle of in pari materia: When two statutes deal with the same subject matter, they should be interpreted harmoniously. So, a court might find a way to read the two laws so they don't conflict, or it might interpret the more specific law narrowly so that the general law applies to more situations.</p>


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Question Title: Avoiding agreeing to, or amending, digital contracts

Question Body: <p>Say you are presented with a digital checkbox or a pin pad, a contract with some terms you do not genuinely consent to, and a business process of the counterparty that cannot proceed unless the box is ticked or something is scribbled on the pad.</p>
<p>Is it possible to scribble on the pin pad or check the online checkbox or do whatever so that the other party's business flow can proceed, but without allowing that action to form a contract? Or at least that particular contract?</p>
<p>If I yell &quot;I do not agree to this contract!&quot; or &quot;I agree only on this condition!&quot; while pressing the button, and the employees of the business see this, and the business opts to serve me anyway, have I avoided forming a contract or successfully amended the contract?</p>
<p>If the business performs and I perform, and we have both stated our conflicting terms, whose terms win and why?</p>


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Answer 1: <h2>You cannot</h2>
<p>In a conflict between written and oral terms of a contract, the written terms prevail. In any event, by you utterance you have not accepted the contract; you have made a counter-offer which the other party has not accepted and have then gone on to accept their original offer.</p>
<p>You would need the written agreement of the other party that they accept your terms and that they understand that clicking the “I accept” is not an acceptance of their terms but merely a means of completing the technical procedure.</p>


Tags: united-states, contract-law, consent, adhesion-contracts


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Question Title: Contract says all information must be kept confidential. Does this mean I cannot outsource?

Question Body: <p>Let's say there's something like this in the contract:</p>
<p>&quot;Without the prior written consent of the other party, no party shall disclose any Confidential Information to any third party&quot;</p>
<p>Does this mean I cannot outsource to a ghostworker? I know that independent contractors should have the freedom to complete the work in whatever way they want, and that outsourcing is a somewhat common thing to do. Plus that many contract templates will have that clause so I need to make sure.</p>
<p>If not, what sort of clauses in an independent contract will ban outsourcing?</p>


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Answer 1: <h2>No</h2>
<p>You can outsource if you don't disclose Confidential Information (as defined in the agreement), or if you have the principal's permission to disclose it to the third-party contractor. The clause only applies to confidential information - a subset of all information.</p>
<blockquote>
<p>I know that independent contractors should have the freedom to complete the work in whatever way they want</p>
</blockquote>
<p>Not at all. George Clooney, the actor, is an independent contractor - he can't outsource.</p>
<p>Of course, this is an example of a personal services contract but, more generally, while the starting position in contracting is that either party may delegate their obligations (although they remain responsible for them) the parties are free to structure their contract however they like. If they want to prohibit outsourcing, they can. If they want to specify that certain personnel must be used (or not used), they can.</p>


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Question Body: <p><a href="https://www.legislation.gov.uk/ukpga/1977/37/section/60" rel="nofollow noreferrer">English Patent Law includes an exception for &quot;experimental purposes&quot;</a>:</p>
<blockquote>
<p>(5)An act which, apart from this subsection, would constitute an infringement of a patent for an invention shall not do so if—</p>
<p>(b)it is done for experimental purposes relating to the subject-matter of the invention;</p>
</blockquote>
<blockquote>
<p>(6D)For the purposes of subsection (5)(b), anything done in or for the purposes of a medicinal product assessment which would otherwise constitute an infringement of a patent for an invention is to be regarded as done for experimental purposes relating to the subject-matter of the invention.</p>
</blockquote>
<p>Can this exception be used explicitly to offer medical treatments that would otherwise be restricted by patent law and require some form of licence agreement with the patent holder?</p>


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<p>Can this exception be used explicitly to offer medical treatments that would otherwise be restricted by patent law and require some form of licence agreement with the patent holder?</p>
<p><a href="https://www.nature.com/articles/d41586-022-04327-7" rel="nofollow noreferrer">The most expensive &quot;drug&quot; in the world</a> is Hemgenix from CSL Behring.  This is a viral particle that introduces a CRISPR mediated genetic modification that can dramatically improve the life of people suffering from haemophilia B for eight years, and potentially longer.  The treatment costs $3.5 million for a single treatment, and even at this cost plausibly saves the health system about $5 million per patient.</p>


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<p>This is a very young feild, and their is a great need for more research.  This point is made most obviously by the fact that only 15% of people with haemophilia have haemophilia B. Most have haemophilia A, which is caused by a deficiency in a different gene for which there is currently no such treatment.</p>
<p>Suppose one set up an organisation in England, say down the road from the group that developed the viral vector in University College London, to do research in this field.  You selected the questions you would attempt to answer such that they required experiments that involved the application of this treatment.  You then provided this treatment to patients who need it without licencing the technology.  One funded the organisation either through charitable donations or payments from the participants at a level closer to the cost of administering the treatment than the $3.5 million price tag.</p>


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<p>Would that constitute an infringement of any patents on the technology used?  This would be based on the defense that the use of the invention was &quot;done for experimental purposes relating to the subject-matter of the invention&quot;.</p>
<p>With respect to the question of payment for medical trials, there are a number of sources questioning the morality of this and refer to examples where the business model has been used.  None mention legal issues with the model.  I include them below for completeness, these are not legal documents.</p>
<ul>
<li><a href="https://doi.org/10.1093/jnci/82.2.84" rel="nofollow noreferrer">I only have access to the first page</a> but this discusses an extant US company <a href="https://www.biotherapeuticsinc.com/" rel="nofollow noreferrer">Biotherapeutics, Inc.
</a> that has used this model</li>


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</a> that has used this model</li>
<li><a href="https://doi.org/10.1007/s11019-016-9741-2" rel="nofollow noreferrer">A 2016 paper</a> finds it ethical in the absence of other alternatives. No obvious mention of illegality</li>
<li><a href="https://doi.org/10.2217/rme.12.75" rel="nofollow noreferrer">This is a single author review of similar schemes</a> that does not mention it being unlawful and discusses them in context of charity funded schemes</li>
</ul>


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Answer 1: <p>The sections you're asking about (as well as related 60(6E): this is an important limiting clause that you may have overlooked) were added by <a href="https://www.legislation.gov.uk/uksi/2014/1997/contents/made" rel="nofollow noreferrer">The Legislative Reform (Patents) Order 2014 (S.I. 2014/1997)</a>. Its <a href="https://www.legislation.gov.uk/uksi/2014/1997/note/made" rel="nofollow noreferrer">explanatory note</a> describes:</p>
<blockquote>
<p>Article 2 amends section 60 to ensure that the exception to patent infringement in subsection (5)(b) applies to anything done in or for the purposes of a medicinal product assessment</p>
</blockquote>
<blockquote>
<p>New subsection (6D) provides that anything done in or for the purposes of a medicinal product assessment is to be regarded as done for experimental purposes relating to the subject-matter of the invention.</p>
</blockquote>
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</blockquote>
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<p>New subsection (6E) defines what is meant by “medicinal product assessment”. A medicinal product assessment includes acts done in the United Kingdom or the Isle of Man in testing or in a course of testing or other activity undertaken with a view to providing data <strong>for a specified purpose</strong>.</p>
</blockquote>
<p>Those specified purposes are (paraphrasing): obtaining an authorisation to sell or supply, complying with regulatory requirements, or enabling a government or public authority to carry out an assessment of suitability.</p>


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<p>Essentially, this allows competitors to do comparison/non-inferiority trials in order to obtain market authorisation for medicinal products without the risk of infringment. See <a href="https://gowlingwlg.com/en/insights-resources/articles/2014/patent-law-proposals-to-bring-clinical-trials-back/" rel="nofollow noreferrer">this explainer</a> by Gowling WLG. <a href="https://cms.law/en/int/expert-guides/cms-expert-guide-on-bolar-provisions/united-kingdom" rel="nofollow noreferrer">CMS describes this</a> as covering: &quot;any testing or other activity undertaken <strong>with a view to providing data in relation to marketing authorisations</strong> in the UK or elsewhere.&quot;</p>


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Question Title: NBA data for commercial purposes

Question Body: <p>I'm planning to create a paid subscription service with some data gathered from nba.com.</p>
<p>There are public APIs from nba.com where I'm gathering the data but there is one specific from <a href="https://www.nba.com/stats/teams/transition" rel="nofollow noreferrer">https://www.nba.com/stats/teams/transition</a> which I'm not really sure if I can use it for commercial purposes.</p>
<p>I know there was a lawsuit nba v motorola where nba tried to have copyright rights over match scores but it was lost because anyone can get such data by just watching the game.
For this data points I'm not really sure that's the case but does anyone know if they also fall under the same category as normal match stats?</p>
<p>Just to clarify, this data is available for free when either calling their API or gathering from the page source.</p>


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Answer 1: <p>In reviewing the NBA.COM site Terms of Use at:</p>
<p><a href="https://www.nba.com/termsofuse" rel="nofollow noreferrer">NBA.COM Terms of Use</a></p>
<p>It appears that your proposed usage violates the site's and the API's terms of use.  Specifically this:</p>
<blockquote>
<p>The Operator maintains the Services for your personal entertainment,
information, education, and communication. Where the function is
available, you may download material displayed on the Services to any
single computer only for your personal, noncommercial use, provided
you also maintain all intellectual property, including copyright and
other proprietary notices contained on or associated with the
materials. <em><strong>You may not, however, distribute, reproduce, republish,
upload, display, modify, transmit, reuse, repost, link to, or use any
materials of the Services for public or commercial purposes on any
other Website, social media platform, or otherwise without the written


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materials of the Services for public or commercial purposes on any
other Website, social media platform, or otherwise without the written
permission of the Operator.</strong></em> Modification of any materials displayed on
the Services is a violation of the Operator’s intellectual property,
including copyright and other proprietary rights.</p>
</blockquote>
<p>This appears to me to preclude you from using their site or APIs as a data source for your service.  You may, however, wish to try to obtain permission from the &quot;operator&quot;.</p>
<p>Keep in mind that while the factual information may not be copyrightable, the use of their service is controlled by the terms of use license.</p>


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Question Title: Can a breach of privacy occur when surveilling a public space through which 3rd parties have no choice but to pass?


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Question Body: <p>In <a href="https://www.cctv.co.uk/are-doorbell-cameras-legal-legal-issues-uk/" rel="nofollow noreferrer">an article on doorbell cameras</a>, it is noted that a breach of privacy was deemed to have occurred through the use of a video doorbell that recorded a neighbour &quot;every time she entered or exited her property&quot;.</p>
<p>In the judgment (<a href="https://www.judiciary.uk/wp-content/uploads/2022/07/Fairhurst-v-Woodard-Judgment-1.pdf" rel="nofollow noreferrer">Fairhurst v Woodard</a>), point 135 mentions</p>
<blockquote>
<p>... the Claimant's right to privacy in her own home, to leave from and return to her house and entertain visitors without her video personal data being captured</p>
</blockquote>
<p>In this case, it seems that the camera in question was pointing at the neighbour's property. However, I'm curious about where this right &quot;to leave from and return to her house&quot; comes from, and how broadly it might be construed.</p>


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<h2>The scenario</h2>
<p><em>N.B. This is <strong>not</strong> the scenario in the aforementioned case.</em></p>
<p>If a camera is pointed out into a public street on a <a href="https://en.wikipedia.org/wiki/Dead_end_(street)" rel="nofollow noreferrer">cul-de-sac</a>, and the field of view covers a line right across the road, so that anybody living <em>at the end of the cul-de-sac</em> has no option but to pass through it when leaving or returning, would that infringe on the same right? Is that right likely to outweigh the right of the camera owner to make recordings for the legitimate purpose of protecting their property?</p>
<h2>The scenario, illustrated</h2>
<p><a href="https://i.stack.imgur.com/wiMw3.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/wiMw3.png" alt="enter image description here" /></a></p>


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<p><a href="https://i.stack.imgur.com/wiMw3.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/wiMw3.png" alt="enter image description here" /></a></p>
<p>The owner of the yellow house has installed the camera. The blue waves show the camera's field of view, covering the whole street. The owner of the green house can only reach the main road by passing through the camera's field of view. The only reasonable way for them not to be recorded, is for them to stay confined to their home (or at least, to the end of the street). Are the rights of the owner of the green house being infringed?</p>


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Answer 1: <p>Yes, that might be a violation of data protection law such as the DPA 2018 / UKGDPR, but not necessarily so. It depends on the details, for example on the purpose this camera serves.</p>
<h2>Background on Fairhurst v Woodard and on legitimate interests</h2>
<p><em>Fairhurst v Woodard</em> is a significant case discussing implications of use of video surveillance outside of a commercial context, but it is a complex case due to the multitude of cameras involved and due to the somewhat unrelated privacy and harassment issues.</p>
<p>Point 135 is about the Driveway Camera, which only surveilled public property and the claimant's property, but did not view any part of the defendants property. People are free to surveil their own property, and would then be covered by the UKGDPR household exception. But for surveillance outside of their own property, defendant would have to comply with the DPA 2018 and the UKGDPR, for which defendant would have needed a legal basis.</p>


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<p>The defendant argued that they had a <em>legitimate interest</em> (Art 6(1)(f) UKGDPR):</p>
<blockquote>
<p>134. […] The Defendant submits that all his data collection and processing
was necessary for the purposes of crime prevention at his property and in
the car park</p>
</blockquote>
<p>However, a legitimate interest always require as <em>balancing test</em>. The legitimate interest can be “overridden by the interests or fundamental rights and freedoms of the data subject” (Art 6(1)(f) UKGDPR). It is not necessary here that these interests, rights, and freedoms are explicitly enumerated in statutory law. Here, a right is claimed without supporting legal basis:</p>
<blockquote>
<p>134. […] Claimant submits that her right to privacy in and
around her home overrides that purpose.</p>
</blockquote>


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<blockquote>
<p>134. […] Claimant submits that her right to privacy in and
around her home overrides that purpose.</p>
</blockquote>
<p>However, a possible basis for this claim would be Art 8(1) of the European Convention on Human Rights, which is part of UK constitutional law: “Everyone has the right to respect for his private and family life, his home and his correspondence.”</p>
<p>The court balances these rights and interests very differently for the different cameras. The Ring Doorbell is mainly focused on people who would ring the defendant's doorbell, and only incidentally captures passer-bys. Here, the legitimate interest was found to be valid. On the other hand, the Driveway Camera was mostly trained on claimant's property. Here, claimant's interests, rights, and freedoms override the claimed legitimate interests.</p>
<h2>Your scenario</h2>


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<h2>Your scenario</h2>
<p>If the camera records the people living in the Green House when they go to or from their property, then yes, it seems like their rights would be affected.</p>
<p>But in your scenario, the context of the camera is not clear:</p>
<ul>
<li>Why was it installed? If the purpose is crime prevention, is there evidence of such crimes in the neighbourhood, or are the cameras intended to counter a speculative threat?</li>
<li>What is its field of view? Is it mainly trained on the Yellow House's doorstep and only captures the street as a background, or does it focus on the street?</li>
<li>Is the camera's field of view masked off as far as possible to exclude public spaces?</li>
<li>Does the camera record continuously, or is it only activated for certain events like when a doorbell is rung or when someone enters the Yellow House property?</li>
<li>Does the camera also record audio?</li>
</ul>


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<li>Does the camera also record audio?</li>
</ul>
<p>All of this is important because it factors into a legitimate interest balancing test. Maybe the Yellow House camera is more like the Ring Doorbell in the above case where the incidental capture of passer-bys was found to be acceptable, maybe it is more like the Driveway Camera that served no legitimate interest.</p>
<p>There is no absolute right to be free of all surveillance. Instead, the interests and rights of the Green and Yellow house residents must be balanced appropriately. Where there is surveillance, it must be limited to what is necessary.</p>


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Answer 2: <p>So having read the case, this is not what is happening here.  The claim of of nuisance which would have covered this, was dismissed as the judge found that the reasonable exception of privacy on a public street does not overcome the legitimate purpose of the cameras in the interest of the property owner of Yellow House in preventing crime at his own personal property.  The finding against the defendant was over his conduct of lying that he reported the claimant to the police after the claimant appeared on camera footage of his property.  They also found that the listening device on the camera picked up sound far beyond the visual range of the camera.  Additionally, the cameras were pointed at direct neighbors (the white houses on either side of the yellow house) and the defendant was threatening to place more.  The judge discusses this further in paragraphs 128-130 (inclusive).</p>


Tags: united-kingdom, privacy, recording, surveillance


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Question Title: Florida Statute about &quot;Deposit money or advance rent&quot;: how would one verify it is implemented by the landlord?


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Question Body: <p><a href="https://www.flsenate.gov/Laws/Statutes/2019/0083.49" rel="nofollow noreferrer">Fla. Stat. 83.49</a> states:</p>
<blockquote>
<p>Whenever money is deposited or advanced by a tenant on a rental
agreement as security for performance of the rental agreement or as
advance rent for other than the next immediate rental period, the
landlord or the landlord’s agent shall the total amount in an account
at a Florida banking institution for the benefit of tenant</p>
</blockquote>
<p>The closest thing to &quot;a separate account at a banking institution &quot; in the mortgage industry is called an escrow account. It is held by a neutral third party, which presumes that it is tied by contract to the other two. Now, I've never seen such a contract with leases even when they state &quot;security deposit will be held in a separate account&quot;. So here's my question: what should one ask from a landlord to verify this clause is in effect?</p>


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Answer 1: <h2>The statute is not talking about an escrow account</h2>
<p>It’s talking about a trust account - where one party (the landlord/agent) legally owns the account, but it’s held for the benefit of another (the tenant).</p>
<p>Note that the agent will not have seperate accounts for each tenant, but a single trust account where all the tenants deposits are comingled and keeping it all straight is an accounting problem for the agent, but one that agents and lawyers have been doing for centuries.</p>
<p>You could ask to see the bank deposit slips.</p>


Tags: tenant, florida


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Question Body: <p>In the case of <a href="https://www.courtlistener.com/docket/60204895/bungie-inc-v-elite-boss-tech-incorporated/" rel="nofollow noreferrer">Bungie vs. Elite Boss Tech</a> (Docket #75, May 8, 2023), one of the defendants - Daniel Fagerberg Larsen - was just struck with a default judgment.</p>
<p>In the judgment, Mr. Larsen was found to be part of a group of three that programmed and distributed a piece of software.</p>
<p>A different member of the group, Mr. Nelson, did agree to various charges regarding his own activities in this enterprise and how the software operates, and that each download of the software they developed constitutes a DMCA violation. That member also agreed to a liability of about 13.5 million USD to Bungie, in favor of having many charges against him dropped.</p>
<p>Larsen however was apparently not part of the deal, and hit with a default judgment. Among others, he was thus found guilty of RICO.</p>


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<p>Larsen however was apparently not part of the deal, and hit with a default judgment. Among others, he was thus found guilty of RICO.</p>
<p>However, here my understanding kind of derails: RICO is, in my understanding, to bring down criminal organizations, especially by making the masterminds liable for any other's actions, akin to a conspiracy. Yet, there were no other people involved anymore, those already had been discharged with that deal...</p>
<p>How come Mr. Larsen is the only one found guilty of (civil) RICO?</p>


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Answer 1: <p>There has to be a criminal enterprise with multiple parties, but you don't have to actively litigate the case, or even sue, all of the parties to that criminal enterprise. For example, you don't have to also litigate actively with participants who are dead, judgment proof, or whom you have reached a settlement with.</p>
<p>Also, to be clear, one is &quot;liable&quot; for money damages in a civil RICO case, not &quot;guilty&quot; which is terminology reserved for criminal cases.</p>


Tags: united-states, rico


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Question Title: International Validity of Power of Attorney Document requiring multiple signatures, individuals sign asynchronously with asynchronous notarization

Question Body: <p>Is it legally permissible for co-inventors to sign a Power of Attorney (PoA) document at separate locations with only their own signatures in the witness of independent notaries, leaving everyone else's signature blank, and then return the original hand signed inked individual documents to the law firm, if they are unable to meet at the same location due to time or financial constraints?</p>
<p>N parties, 1 Document, N parties signing 1 Document with N-notaries asynchronously</p>


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Answer 1: <p>Yes.</p>
<p>This is legal and it is done routinely. It is called executing a document in counterparts.</p>
<p>To be clear, however, as the language of the question is ambiguous on this point, each signature would have to be contemporaneously notarized by the person notarizing that particular signature.</p>
<p>In each case that a notarization took place outside the country where the Power of Attorney is to be utilized, normally, it would be necessary to also obtain an apostille for that notarization. An apostille is an official declaration of a designated official in the country of notarization that the notary of the signature in question was, in fact, a notary in good standing at the time that the notarization was done.</p>


Tags: united-states, international, signature, power-of-attorney, notaries


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Question Title: Creating an application to streamline Dungeons and Dragons

Question Body: <p>I've been working on an application that would streamline the average Dungeons and Dragons 5e tabletop experience, and it only recently occurred to me that doing so may infringe on copyrights.</p>
<p>Basically, the goal is to help players and DMs track action economy, initiative, spells, etc., by listing options and showing descriptions, many of which would come from Wizards of the Coast-published materials. I know that some of this may be covered by either the Creative Commons license or the OGL it was published under, but it's not clear to me how far those freedoms extend.</p>


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Answer 1: <blockquote>
<p>I know that some of this may be covered by either the Creative Commons license or the OGL it was published under, but it's not clear to me how far those freedoms extend.</p>
</blockquote>
<p>It was all <em>published</em> as materials under copyright to the original authors, TSR, WotC, &amp;c. and if things had been left like that <a href="https://law.stackexchange.com/a/92311/20098">hszmv's answer</a> would've been completely correct: stay vague and allow <em>users</em> to enter those names and descriptions, talk to WotC's lawyers and sales department about license fees, or just keep it to yourself and your friends.</p>


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<p>You're right, though: <a href="https://techcrunch.com/2023/01/27/dungeons-dragons-creative-commons-license/" rel="nofollow noreferrer">WotC went whole-hog, dumped their partial OGL idea, and relicensed <em>some</em> things as Creative Commons</a>. There <em>are</em> different Creative Commons licenses, though, some restricting commercial use that would still keep your app to yourself and friends without a specific licensing agreement.</p>
<ul>


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<li><strong>Go find out <em>exactly</em> what WotC put under CC</strong>. If it's only the <em>Player's Handbook</em>, then you can <em>only</em> use names and descriptions that are from the <em>Player's Handbook</em> and you're still facing a cease-&amp;-desist if you start adding in <em>Monster Manual</em> info.<br><br>If it's everything, it's everything <em>they</em> have but <em>still</em> won't include any older modules that they don't have the right to change the copyright status of. It'll still be under copyright, usually until 70 years after the death of the original creator. For Gary Gygax, that'll be 2078. Expect that length to extend during your lifetime though. US copyright usually extends every time Mickey &amp; friends come close to entering the public domain. [<strong>Edit:</strong> The comments below suggest it might <em>only</em> have been the <a href="https://www.dandwiki.com/wiki/System_Reference_Document" rel="nofollow noreferrer">Systems Reference Document</a> (I


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The comments below suggest it might <em>only</em> have been the <a href="https://www.dandwiki.com/wiki/System_Reference_Document" rel="nofollow noreferrer">Systems Reference Document</a> (I assume for <a href="https://dnd.wizards.com/resources/systems-reference-document" rel="nofollow noreferrer">5e</a>). It's 403 pages of not nothing but it's not much given the universe we're talking about. The spell and monster lists are generic. Bigby is nowhere to be found and the only mention of a beholder is a reminder <em>not</em> to use the name beholder without their written approval.]</li>


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<li><strong>Go find out <em>exactly</em> which CC WotC used</strong>. The article above says &quot;all use&quot; but you need to find out the exact number of the Creative Commons license for each thing you're using and make sure all of your uses fall within its terms. Some are basically free use but still insist you mention the copyright holder prominently or in every use. Go ahead and do that if you have to. [<strong>Edit:</strong> The comments below say it is probably <a href="https://en.wikipedia.org/wiki/Creative_Commons_license#Version_4.0" rel="nofollow noreferrer">CC 4.0</a>. <a href="https://dnd.wizards.com/resources/systems-reference-document" rel="nofollow noreferrer">The SRD download page</a> says you can use CC 4.0 <em>or</em> <a href="https://media.wizards.com/2016/downloads/DND/SRD-OGL_V5.1.pdf" rel="nofollow noreferrer">their own OGL</a>. In both cases, <strong>yes</strong>, <strong>you <em>must</em> acknowledge WotC by name in a way prominent enough to satisfy the


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rel="nofollow noreferrer">their own OGL</a>. In both cases, <strong>yes</strong>, <strong>you <em>must</em> acknowledge WotC by name in a way prominent enough to satisfy the license you choose</strong>.]</li>


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</ul>
<p>And of course,</p>
<ul>
<li><strong>Don't trust legal advice from internet randos or ChatGPT</strong>. If this is a serious thing you're going to be spending a good chunk of your life working on or expect to make significant money from, go talk to an actual lawyer. Bonus points for one specialized in IP with a knowledge of roleplaying and the way it's been (partially) opening up lately.<br><br>If you start off just by talking to WotC's lawyers, just do that somewhere where you get their explanations and permissions in writing. Then keep that somewhere safe in electronic and hard copy. Then still take that with you when you go talk to your own lawyer.</li>
</ul>


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Answer 2: <p>So as a general rule, one may not copyright game mechanics, so you are covered in that regard as making an inititive tracker, a dice roller, and even a sheet that will roll the dice and apply preset modifiers and list which ones are available.</p>
<p>Where you would be infringing is in DND specific lore, images, and terms (Some but not all DND spells are named in a way that is a copyrighted term, &quot;Bigby's Hand&quot; being one such example, as &quot;Bigby&quot; is a lore specific character who made the spell.
Due to the OGL controversy earlier this year, expect more names like this to be given to spells).</p>
<p>Where you can avoid this is by allowing players to edit in their own spells and dice modifiers, and preset rolls (If you've ever used roll20, you can put in your various attacks and features into a character sheet, and then it's a simple button click to roll the various attacks.).</p>


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<p>This would likely also help you with marketing to homebrew, which cannot be anticipated.</p>
<p>There are plenty of these applications out there already (Virtual Table Tops OR VTTs) of various sophistications and are often capable of playing different systems that have no compatibility with each other.  Do keep in mind that WotC may try to send cease and desist anyway, as they want to move into the VTT market.   It may also factor into what your intentions with the app are (if you're just making it for your buds or a school project and don't plan to monetize it, that will be something the courts would find more forgiving in your case.).</p>


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Question Body: <p>I have just moved into a new flat and as soon as I entered I took a video and noticed that the flat has never been cleaned after the last tenant left. I also took a note of all the issues there were not visible when I viewed the flat. I am mainly looking for answers for the 4, 11, 12, 13, 14, 15 points.</p>
<ol>
<li>One window could not open but this has now been resolved.</li>
<li>The house was dirty with dust, spider nets and mould.</li>
<li>Some light bulbs were not working.</li>
<li>The fridge makes a lot of noise and smells inside.</li>
<li>It was not painted, looked a bit black/yellow and it had an odour possibly due to previous tenants smoking.</li>
<li>The boiler was not working and a person came the next day to fix</li>
<li>The bathroom curtain is rusty and filthy. They had another one when I viewed the flat.</li>
<li>Some doors would not open and a guy came to fix them.</li>


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<li>The bathroom curtain is rusty and filthy. They had another one when I viewed the flat.</li>
<li>Some doors would not open and a guy came to fix them.</li>
<li>Most door and window handles are about to snap. I have informed them to avoid being blamed for damage.</li>
<li>The sink drains were blocked and a guy came to fix them.</li>
<li>The washing machine seal has mould all over it. I tried cleaning it but it does not go. I consider that to be a hazard and I mentioned that I have a history of asthma. The agent told me that I have to try and clean it.</li>
<li>The contract does not mention it but they sent me a different PDF stating &quot;Your hot water and heating have been set up on a British Gas Bulk Agreement.&quot;. What does that mean?</li>
<li>They have not informed about the water meter reference.</li>
<li>I have found a few ants in the house and I have informed them to bring a pest control company to clean.</li>


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<li>They have not informed about the water meter reference.</li>
<li>I have found a few ants in the house and I have informed them to bring a pest control company to clean.</li>
<li>The blinds are broken and they cannot make the rooms dark enough for an epileptic person to sleep.</li>
</ol>
<p>So, I listed all the issues, even the resolved ones. Regarding 2, I assume there is no responsibility as the contract did not mention anything about cleaning. How about number 7, 11 and 15? Isn't it their responsibility to keep the flat at health and safety standards? And about number 13, should I just call Thames and ask for it? I wonder if I can actually break the lease after this list of issues.</p>
<p>PS: They have provided me with the following documents. I am noting that in case they missed any that could be used against them: Energy Performance Certificate (EPC), Electrical Installation Condition Report (EICR), Gas Safety Certificate (GSC), Tenancy Agreement.</p>


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Answer 1: <p><a href="/questions/tagged/england" class="post-tag" title="show questions tagged &#39;england&#39;" aria-label="show questions tagged &#39;england&#39;" rel="tag" aria-labelledby="tag-england-tooltip-container">england</a></p>
<p>A missing document is the <a href="https://www.gov.uk/government/publications/how-to-rent/how-to-rent-the-checklist-for-renting-in-england" rel="nofollow noreferrer"><em>How to rent: the checklist for renting in England</em></a> guide, which should have been supplied to you by the letting agent or landlord on paper or by email.</p>
<p>If you are a tenant (if you do not have a licence to occupy), several of your points relate to this section:</p>
<blockquote>


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<p>If you are a tenant (if you do not have a licence to occupy), several of your points relate to this section:</p>
<blockquote>
<p><strong>Fitness for human habitation.</strong> Your property must be safe, healthy and free from things that could cause serious harm. If not, you can take your landlord to court. For more information, see <a href="https://www.gov.uk/government/publications/homes-fitness-for-human-habitation-act-2018/guide-for-tenants-homes-fitness-for-human-habitation-act-2018" rel="nofollow noreferrer">the Homes (Fitness for Human Habitation) Act 2018 guide for tenants</a>. You should also check whether your tenancy agreement excuses you from paying rent if the building becomes unfit to live in due to, for example, a fire or flood.</p>
</blockquote>
<p>Important: generally, before you can break the lease, you have to exhaust the proper process. Which means informing the landlord and giving them reasonable time to sort it out.</p>
<blockquote>


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<p>Important: generally, before you can break the lease, you have to exhaust the proper process. Which means informing the landlord and giving them reasonable time to sort it out.</p>
<blockquote>
<p>Your landlord must fix problems in your home, but you need to tell them so that they can. You should make a request for the problem to be fixed, in writing if possible (this includes by email or text, provided you keep them as evidence), to your landlord. You should allow your landlord a reasonable amount of time to fix the problem. (step 3 <a href="https://www.gov.uk/government/publications/homes-fitness-for-human-habitation-act-2018/guide-for-tenants-homes-fitness-for-human-habitation-act-2018" rel="nofollow noreferrer">Guide for tenants: Homes (Fitness for Human Habitation) Act 2018</a>)</p>
</blockquote>


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</blockquote>
<p>Damp and/or mould can be serious. If you think it amounts to a seriously dangerous condition in your flat you could inform your local council. <a href="https://england.shelter.org.uk/housing_advice/repairs/how_to_report_repairs_to_a_private_landlord" rel="nofollow noreferrer">Shelter has a template for writing to your landlord about repairs</a>.</p>
<p>Your point 15 relates to this section:</p>
<blockquote>


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<p>Your point 15 relates to this section:</p>
<blockquote>
<p><strong>Accessibility.</strong> If you are disabled or have a long-term condition, you can <a href="https://www.citizensadvice.org.uk/housing/discrimination-in-housing/taking-action/asking-for-adjustments-to-help-with-your-disability/" rel="nofollow noreferrer">request reasonable adjustments</a> from your landlord or agent. This could include changes to the terms of your agreement, or home adaptations and adjustments to common parts of a building to make your home accessible to you. Your landlord or agent should respond in a reasonable timeframe and if they refuse a request, they should explain why they do not consider it reasonable. Your landlord can ask you to pay for the changes you asked for.</p>
</blockquote>
<p>Points 7 and 15 seem like things you could fix yourself. I would agree that you shouldn't have to.</p>
<p>Keep a record / log / diary of your communications - make a note of who said what, when.</p>


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<p>Keep a record / log / diary of your communications - make a note of who said what, when.</p>
<p><sup>Point 4, fridge smell: lots of online advice re home remedies using common household ingredients such as lemons, white vinegar or baking soda etc.</sup></p>


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Question Title: Would keeping someone at home under fear of violence be abduction under Indian Penal Code section 364A?


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Question Body: <p><a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&amp;sectionId=46137&amp;sectionno=364A&amp;orderno=410" rel="nofollow noreferrer">IPC 364A</a> states</p>
<blockquote>
<p>Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death or imprisonment for life, and shall also be liable to fine.</p>
</blockquote>
<p>abduction is defined as</p>
<blockquote>
<p>Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person.</p>


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</blockquote>
<p>abduction is defined as</p>
<blockquote>
<p>Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person.</p>
</blockquote>
<p>The example :</p>
<blockquote>
<p>A person who had severe stress harassed his mother so that she could give him money to see a psychiatrist, he even forced her to stay at home and not go anywhere and the likes because he didn't want to be alone. He threatened to hurt his mom on a call with his friends with the intention so they gave him money, he used knives and scissors to harm himself as well while his mother tried to stop him. he even tried to seek help internationally for his stress because he didn't trust local helplines. or to get some international  organization to help them</p>
</blockquote>


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Answer 1: <p>This is unlikely to be abduction, because he:</p>
<blockquote>
<p>forced her <em><strong>to stay at home and not go anywhere</strong></em></p>
</blockquote>
<p>Which does not meet the definition at <a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&amp;sectionId=46133&amp;sectionno=362&amp;orderno=406" rel="nofollow noreferrer">section 362</a>:</p>
<blockquote>
<p>Whoever by force compels, or by any deceitful means induces, any person <em><strong>to go from</strong></em> any place, is said to abduct that person.</p>
</blockquote>
<p>The offence would seem to be extortion, contrary to <a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&amp;sectionId=46166&amp;sectionno=383&amp;orderno=440" rel="nofollow noreferrer">section 383</a> IPC:</p>
<blockquote>


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<blockquote>
<p>Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits &quot;extortion&quot;.</p>
</blockquote>
<p>The punishments for extortion depends on the circumstances (and evidence) may be found at sections 384 to 389.</p>
<p>Also, consider this <em>could</em> be robbery contrary to the second paragraph of <a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&amp;orderno=447" rel="nofollow noreferrer">section 390</a> IPC:</p>
<blockquote>
<p>In all robbery there is either theft or extortion.</p>


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<blockquote>
<p>In all robbery there is either theft or extortion.</p>
<p><strong>When theft is robbery</strong>.—Theft is &quot;robbery&quot; if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.</p>
<p><strong>When extortion is robbery</strong>.—Extortion is &quot;robbery&quot; if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.</p>
</blockquote>


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Question Body: <p>I am a UK citizen and my wife is on a Tier 2 General visa. We would like to apply for Spouse visa so that she is able to find work with other companies (her present visa is issued for a specific employer and would have to be re-applied for if she were to find work for another employer).</p>
<p><strong>In depth reasoning:</strong>
If you leave the UK, you can claim your income tax back as you will not be remaining in the UK as a permanent resident. Before you are issued your UK passport, you are required to be living and working in the UK for 5 (or 6... not sure) years. If you leave, you get your tax back; if you choose to remain and apply for permanent residence, you can't.</p>


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<p>Since my wife has been on her current visa (Tier 2 general) for its full duration (2 years), she could continue another 3 years and claim her passport. However, moving to a spouse visa causes this 'tally' to reset... meaning that she now has to build up her 5 years from year zero (as if she just arrived in the UK).</p>
<p>Since her 2 years on the Tier 2 General visa will not count toward her passport, we think that she can claim her income tax (otherwise those two years are simply lost and all the money she has paid in tax is for... nothing?!)</p>
<p><strong>Question:</strong>
Are we able to claim an income tax refund?</p>
<p><a href="https://www.gov.uk/remain-in-uk-family/overview" rel="nofollow noreferrer">Visa website</a> - so that you know which visa I am talking about.</p>


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Answer 1: <blockquote>
  <p>Since my wife has been on her current visa (Tier 2 general) for its
  full duration (2 years), she could continue another 3 years and claim
  her passport.</p>
</blockquote>

<p>No, not exactly. A T2 can apply for Indefinite Leave to Remain (ILR, or permanent residence) after 5 years of bookable time. You need to pad in anywhere from 4 to 6 months for them to consider and approve the settlement application. Once the ILR has been granted, you need to spend a year in that status before nationality can be applied for. Nationality applications are taking between 3 to 6 months to consider and approve, and once it has been approved, you need to book and attend a ceremony which takes anywhere from 2 to 6 weeks, and THEN you can apply for a passport. So on the outside, you're talking about a couple of years. (ILR processing time + 1 year of residence with ILR + nationality processing time + ceremony lead time + passport application processing time).</p>


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<p>I have <em>heard</em> of cases where a spouse on a work permit applied for nationality immediately after receiving ILR and did not have to wait the additional year of residency, but haven't seen one myself. In this case you are left with the 4 to 6 month ILR processing time and the 3 - 6 month nationality processing time. In either case all that happens after the first 5 years is the work permit holder can apply for ILR.</p>

<p>So the 5 year requirement is just one of the steps along the path to citizenship. </p>

<blockquote>
  <p>However, moving to a spouse visa causes this 'tally' to reset...
  meaning that she now has to build up her 5 years from year zero (as if
  she just arrived in the UK).</p>
</blockquote>


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<p>They reset the residency clock to zero when a person switches from an economic visa (in your case a Tier 2) to a family formation visa.  They created this rule because people could not find T2 work and entered into a 'marriage of convenience' in order to stay in the UK, this was abuse, so they stopped allowing it.</p>

<p>When you take this route, Appendix FM kicks in with the various financial hurdles and the path to ILR is 5 years. However, a spouse can apply for nationality after only 3 years of residence with no requirement to spend a year in ILR status. So you essentially save a year in the path. Everything else I described above with respect to waiting times is applicable.</p>

<blockquote>
  <p>Are we able to claim an income tax refund?</p>
</blockquote>


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<blockquote>
  <p>Are we able to claim an income tax refund?</p>
</blockquote>

<p>If you are referring to back taxes paid under a T2, then no. There are no grounds to claim a refund for taxes that fell due on income earned in the UK. This would also be seen as an abusive practice because people would be using their immigration status to escape HMRC.  The same is true for the NHS surcharge. These are sunken costs.</p>


Tags: united-kingdom, tax-law, immigration, visa


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Question Title: Has New Jersey v. Andrews ever been successfully challenged?

Question Body: <p><a href="https://harvardlawreview.org/print/vol-134/state-v-andrews/" rel="nofollow noreferrer">New Jersey v. Andrews</a> is relatively new case law. Has it ever been successfully challenged at the district court level?</p>
<p>I'm aware of several cases where the state has seized a citizen's smartphone with a search warrant; then, citing <em>State v. Andrews</em>, has compelled said citizen to reveal their phone's password so that the phone's contents may be searched.</p>
<p>What I'm wondering is: have there been any cases where the State's motion to compel a password under Andrews has been successfully challenged?</p>


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Answer 1: <p>The question is ill framed, but I'll try to reframe it and answer it.</p>
<p><em>New Jersey v. Andrews</em> is a decision of the New Jersey Supreme Court (its highest appellate court), which held that you do not have a 5th Amendment right to refuse to disclose a password that if disclosed might reveal incriminating password protected information. Andrews <a href="https://www.eff.org/cases/andrews-v-new-jersey" rel="noreferrer">attempted to appeal this to the U.S. Supreme Court</a> with the support of the American Civil Liberties Union and the Electronic Freedom Foundation. But, <a href="https://www.scotusblog.com/case-files/cases/andrews-v-new-jersey/" rel="noreferrer">the U.S. Supreme Court denied Andrews' petition for certiorari</a> (i.e. refused to take up the case, leaving it in force in New Jersey) on May 17, 2021.</p>


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<p>As explained in <a href="https://www.supremecourt.gov/DocketPDF/20/20-937/168713/20210211115141358_20-937_Amici%20Brief.pdf" rel="noreferrer">an amicus brief</a> to the U.S. Supreme Court in support of granting Andrews' Petition for Certiorari:</p>
<blockquote>
<p>In an opinion dated, August 10, 2020, the New Jersey Supreme Court,
based on <em>Fisher v. United States</em>, 425 U.S. 391 (1976), extended the
“foregone conclusion” doctrine to cellphones and held that the Fifth
Amendment to the United States Constitution does not protect an
individual from being compelled to recall and truthfully disclose a
password to his cellphone under circumstances where that disclosure
may lead to the discovery of incriminating evidence. <em>State v.
Andrews</em>, 234 A.3d 1254, 1274-75 (N.J. 2020).</p>
</blockquote>


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may lead to the discovery of incriminating evidence. <em>State v.
Andrews</em>, 234 A.3d 1254, 1274-75 (N.J. 2020).</p>
</blockquote>
<p>The basic issue is that the 5th Amendment does not protect documents written by a potential criminal defendant from disclosure (and such a person can be forced to turn over those records or provide, for example, a physical key to a file cabinet to allow them to be obtained by authorities), but the 5th Amendment does protect a potential criminal defendant from having to testify in a way that would be self-incriminating. It isn't clear on which side of this divide a forced disclosure of a password lies.</p>
<p>The same amicus brief notes a law review article which stated that:</p>
<blockquote>
<p>the Fifth Amendment law of compelled access to encrypted data as a
“fundamental question bedeviling courts and scholars” and “that has
split and confused the courts”</p>
</blockquote>


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<blockquote>
<p>the Fifth Amendment law of compelled access to encrypted data as a
“fundamental question bedeviling courts and scholars” and “that has
split and confused the courts”</p>
</blockquote>
<p><em>citing</em> Laurent Sacharoff, &quot;<a href="https://fordhamlawreview.org/wp-content/uploads/2018/09/09_Sacharoff-203-251.pdf" rel="noreferrer">Unlocking the Fifth Amendment: Passwords and Encrypted Devices</a>&quot;, 87 Fordham L. Rev. 203, 203, 207 (2018).</p>
<p>Neither the federal courts below the U.S. Supreme Court, nor the courts of another state can overturn a ruling of the New Jersey Supreme Court, and all state courts in the state of New Jersey are required to follow the precedents of the New Jersey Supreme Court including <em>New Jersey v. Andrews</em>.</p>
<p>There is an unresolved split of authority on this legal issue at the national level.</p>


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<p>There is an unresolved split of authority on this legal issue at the national level.</p>
<p>Three courts one step below the U.S. Supreme Court (including the New Jersey Supreme Court) have resolved it as New Jersey did, four courts one step below the U.S. Supreme Court have taken the opposite position, and at least one state (Florida) has an internal split of authority over the issue. Forty-five states (including Florida which is split at the intermediate appellate court level), the District of Columbia's local courts, and eleven intermediate federal appellate courts, however, have not yet definitively ruled on this emerging 5th Amendment interpretation issue.</p>
<p>Massachusetts reached the same conclusion as New Jersey did in <em>Andrews</em>. <em>Commonwealth v. Gelfatt</em>, 11 N.E.3d 605, 615 (Mass. 2014). So did the U.S. Court of Appeals for the 3rd Circuit. <em>United States v. Apple MacPro Comput</em>., 851 F.3d 238, 248 (3d Cir. 2017).</p>


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<p>Indiana has held that the 5th Amendment privilege prohibits the government from demanding that someone disclose a password that if disclosed might reveal incriminating information. <em>Seo v. State</em>, 148 N.E.3d 952, 958 (Ind. 2020). So did Pennsylvania. <em>Commonwealth v. Davis</em>, 220 A.3d 534, 550 (Pa. 2019). <a href="https://www.eff.org/deeplinks/2021/10/police-cant-demand-you-reveal-your-phone-passcode-and-then-tell-jury-you-refused" rel="noreferrer">Utah's Supreme Court</a> held that the 5th Amendment prohibits forced disclosures of passwords in October of 2021. The U.S. Court of Appeals for the 11th Circuit also took this position. <em>In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011</em>, 670 F.3d 1335, 1341 (11th Cir. 2012).</p>


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<p>The Florida Supreme Court had not addressed the issue (as of early 2021) and there was a split of authority over this issue in Florida's intermediate appellate courts at that time. <em>Compare Pollard v. State</em>, 287 So. 3d 649, 651 (Fla. App. 2019) and <em>G.A.Q.L. v. State</em>, 257 So. 3d 1058, 1062-63 (Fla. App. 2018) with <em>State v. Stahl</em>, 206 So. 3d 124, 136 (Fla. App. 2016).</p>
<p>What often happens when there is a split of authority between a small number of state supreme courts and intermediate federal appellate courts, like the one present here, but not all that many states and intermediate federal appellate courts (often called &quot;circuits) have chimed in, is that the U.S. Supreme Court declines to resolve the split until more jurisdictions have considered the issue. Instead, the U.S. Supreme Court allows the law regarding that issue to &quot;develop&quot; and guide it in some future case in which the issue will be resolved.</p>


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<p>If the lower appellate courts tend to clearly favor one resolution or the other, the U.S. Supreme Court will often take a case to ratify the clear majority view (although sometimes it contradicts that majority position instead). And, if the split remains fairly even after a large number of jurisdictions of taken a position, the U.S. Supreme Court may then step in an resolve the issue one way or the other.</p>
<p>But, there are many splits of authority on legal issues in U.S. federal law including constitutional law (probably hundreds) that have remained unresolved for a very long period of time, sometimes for decades, including some which are quite well developed.</p>
<p>Also, since this issue involves the interpretation of the U.S. Constitution in a very direct way, there is really nothing that Congress can do to resolve the split.</p>


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Question Body: <p>I found this question on a forum
<a href="https://www.livinginindonesiaforum.org/forum/general/laws-visas-money-matters-and-documents/52502-age-of-consent" rel="nofollow noreferrer">https://www.livinginindonesiaforum.org/forum/general/laws-visas-money-matters-and-documents/52502-age-of-consent</a></p>
<p>Wikipedia says 15. However,</p>
<p>Article 82 child protection law says the following:</p>
<blockquote>
<p>Every one who deliberately commits violence, or threat of violence,
forces, does tricks, tells a series of lies, or <em>persuades</em> a child to
do, or let obscene acts be done, is subject to penalty of 15 (fifteen)
years at most and 3 (three) years at least and fine of Rp. 300.000.000
(three hundreds millions) at most and Rp.
60.000.000 at least.</p>
</blockquote>


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years at most and 3 (three) years at least and fine of Rp. 300.000.000
(three hundreds millions) at most and Rp.
60.000.000 at least.</p>
</blockquote>
<p><a href="https://www2.congreso.gob.pe/sicr/cendocbib/con4_uibd.nsf/E67F49F7CC441622052580330075862B/$FILE/ANNEX-3-Laws-of-child_protection.pdf" rel="nofollow noreferrer">https://www2.congreso.gob.pe/sicr/cendocbib/con4_uibd.nsf/E67F49F7CC441622052580330075862B/$FILE/ANNEX-3-Laws-of-child_protection.pdf</a></p>
<p>I found the law a bit weird.</p>
<p>It prohibits some nonconsensual stuffs like &quot;deliberately commits violence, or threat of violence, forces, does tricks, tells a series of lies&quot;, however, later it adds a phrase 'persuade'. Persuading someone is not necessarily nonconsensual. All the words describe nonconsensual activity except 'persuade'.</p>
<p>Also, one interpretation of this article is that all sex with girls under 18 is illegal. However, if that's the case, why not just make it simple and</p>
<blockquote>


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<p>Also, one interpretation of this article is that all sex with girls under 18 is illegal. However, if that's the case, why not just make it simple and</p>
<blockquote>
<p>don't have sex with girls under 18</p>
</blockquote>
<p>?</p>
<p>If all obscene acts with a girl under 18 are illegal, why doesn't the law simply say don't do obscene acts with a girl under 18?</p>
<p>If some obscene acts are legal, why does it say &quot;coerce, trick, bla bla bla, persuade&quot; girls to have sex with you if she is under 18?</p>
<p>Why does the law prohibit persuading girls to do obscene acts but does not prohibit the actual doing of the obscene act itself? Kind of weird.</p>
<p>Of course the law says do obscene acts instead of having sex. I am not even sure what obscene acts include.</p>
<p>What am I missing here?</p>
<p>Actually, due to this, is age of consent in Indonesia 18 or 15?</p>
<p>Any actual court cases will be great.</p>
<p>In the forum I sent someone actually asked this:</p>


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<p>Actually, due to this, is age of consent in Indonesia 18 or 15?</p>
<p>Any actual court cases will be great.</p>
<p>In the forum I sent someone actually asked this:</p>
<blockquote>
<p>&quot;The exploitation&quot; and &quot;persuasion&quot; angle is not very clear to me. So
sex with a girl above 15 is legal unless you &quot;exploit&quot; or &quot;persuade&quot;
her to do so. Can anyone shows actual court cases?</p>
<p>It seems that actual court cases for this sort of thing is very few.</p>
</blockquote>
<p>So if the law is to be read literally, it looks like having sex with a girl above 15 is legal unless you &quot;exploit&quot; or &quot;persuade&quot;. Which is absurd.</p>


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Answer 1: <p><strong>Content Warning</strong>: this post mentions rape / non-consensual sex and discusses (in some non-explicit detail) coercion of minors.</p>
<hr />
<p>As of Tuesday, March 1st, 2016, according to the <a href="https://www.ageofconsent.net/world/indonesia" rel="noreferrer">Indonesian Penal Code</a> (translated version; I cannot read Indonesian), Indonesia's age of consent is 16 years old (18 for homosexual acts). Indonesia also does not have close-in-age exemptions (for example, in Canada, the age of consent is 16 years old, but a 14-year-old can consent to a partner less than 5 years older, and a 12-year-old can consent within 2 years).</p>


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<p>I cannot verify this source but according to Wikipedia, which cites <a href="https://repositoryfh.unla.ac.id/browse/previews/1412" rel="noreferrer">this PDF</a>, the age of consent could be raised to 18 years under the Child Protection Act arguing that sexual acts can cause bodily or mental harm and &quot;child&quot; is defined as anyone under 18 years of age. As an example, according to Wikipedia, a court case in 2009 (<a href="https://www.smh.com.au/world/australian-gets-eight-years-in-bali-jail-for-underage-sex-20090226-8jaf.html" rel="noreferrer">Sydney Morning Herald</a>) saw this used to convict an Australian man.</p>
<hr />


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<hr />
<p>There is nothing weird about this law. I left this as a comment, but let me elaborate in an answer. Your misconception is that persuasion is an innocent and ethical thing. The harsh reality is that children are, on average, more ignorant than adults and lack judgement, foresight, and rationality at times, and there are disgusting individuals that will exploit this fact to get children to do things they otherwise wouldn't such as sex, or drugs. Additionally, age comes with a power imbalance - think a teacher using their power over a student to convince or coerce them into having sex with them. That is not strictly <em>violence</em>, nor telling lies, or &quot;forcing&quot; in the strict sense, nor trickery, but a reasonable individual would still consider that to be not real consent.</p>


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<p>The fact is that children can only consent if it is entirely of their own accord and judgement and there is no extrinsic pressure forcing or persuading them to. In fact, I argue that <em>adults</em> are subject to this too and persuading or coercing an adult into having sex is also disgusting (but doing this to children is far more abhorrent). But since children are considered by law to lack the judgement to protect themselves against coercion and realize they should reject and get away from their persuader, the law instead protects them.</p>
<blockquote>
<p>Persuading someone is not necessarily non-consensual.</p>
</blockquote>
<p>It holds a high chance of being non-consensual, and consent is only considered real when it is a) not coerced, and b) the subject is <em>legally capable</em>; that is, not intoxicated, not a minor (by whatever the age of cosnent is), etc.</p>
<blockquote>


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<blockquote>
<p>If all obscene acts with a girl under 18 are illegal, why doesn't the law simply say don't do obscene acts with a girl under 18?</p>
</blockquote>
<p>Because sex with people between 16 and 18 is legal (in Indonesia) under the right conditions. Although I must say, since you word it as &quot;obscene acts&quot;, then of course they're illegal. Obscene acts are, by definition, morally reprehensible and/or legally incriminating, so illegal things are illegal, is basically what you're saying. Just say &quot;having sex&quot; if you mean &quot;having sex&quot;.</p>
<blockquote>
<p>Why does the law prohibit persuading girls to do obscene acts but does not prohibit the actual doing of the obscene act itself? Kind of weird.</p>
</blockquote>
<p>This makes no sense at all, and hopefully after reading my answer you understand why this makes absolutely no sense.</p>
<blockquote>


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</blockquote>
<p>This makes no sense at all, and hopefully after reading my answer you understand why this makes absolutely no sense.</p>
<blockquote>
<p>How in the earth anyone can have sex with someone without persuading? He walks the street and accidentally plug his penis in?</p>
</blockquote>
<p>... Rape? There are many ways to have sex with someone without persuading them that I don't think I have to list. Your main mistake is still conflating persuaded / coerced consent as real consent.</p>
<hr />
<p>In summary, persuasion is not some innocent matter of convincing someone in a friendly manner to have sex. It includes coercion, abusing one's power, exploiting a child's ignorance and limited judgement or foresight, and other reprehensible factors. Consent cannot be given if the individual is too young, impaired, unable to legally give consent, or coerced into it.</p>


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Answer 2: <p>The site ageofconsent.net in the other answer is not a reliable source. It is completely wrong to say that there is an age of consent of 16.</p>
<p>Indonesia has a criminal code, which is in Dutch, not Indonesian. A new Indonesian-language code has been passed, and will come into force in 2026.</p>
<p>The provisions on the age of consent in the current criminal code are:</p>
<blockquote>
<p>Artikel 287.</p>
<p>(1) Hij, die buiten echt vleeschelijke gemeenschap heeft met eene
vrouw, van wie hij weet of redelijkerwijs moet vermoeden dat zij den
leeftijd van vijftien jaren nog niet heeft bereikt of dat zij, indien
van haar leeftijd niet blijkt, nog niet huwbaar is, wordt gestraft met
gevangenisstraf van ten hoogste negen jaren.</p>
<p>(2) Vervolging heeft niet  plaats dan op klachte, tenzij de vrouw den leeftijd van twaalf jaren nog niet heeft bereikt of een der gevallen van artikel 291 aanwezig is.</p>
</blockquote>


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<p>(2) Vervolging heeft niet  plaats dan op klachte, tenzij de vrouw den leeftijd van twaalf jaren nog niet heeft bereikt of een der gevallen van artikel 291 aanwezig is.</p>
</blockquote>
<p>That is, anyone who has sex with a person other than their wife, under 15 years of age, can be sentenced up to 9 years in prison, but this requires a complaint from the victim, unless they are under 12 years of age.</p>
<p>Separately, article 288 provides that a man married to a child can be punished if she is not yet sexually mature and suffers injuries as a result.</p>
<p>Article 290 provides:</p>
<blockquote>
<p>Met gevangenisstraf van ten hoogste zeven jaren wordt gestraft: hij,
die ontuchtige handelingen pleegt met iemand, van wien hij weet of
redelijkerwijs moet vermoeden dat hij den leeftijd van vijftien jaren
nog niet heeft bereikt of, indien van dien leeftijd niet blijkt, nog
niet huwbaar is;</p>
</blockquote>


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redelijkerwijs moet vermoeden dat hij den leeftijd van vijftien jaren
nog niet heeft bereikt of, indien van dien leeftijd niet blijkt, nog
niet huwbaar is;</p>
</blockquote>
<p>That is if someone commits a lewd act (<em>ontuchtige handelingen</em>) with a child apparently under the age of 15, that is a crime punishable by up to seven years in prison.</p>
<blockquote>
<p>Artikel 292.</p>
<p>De meerderjarige, die met een minderjarige van hetzelfde geslacht,
wiens minderjarigheid hij kent of redelijkerwijs moet vermoeden,
ontucht pleegt, wordt gestraft met gevangenisstraf van ten hoogste
vijf jaren</p>
</blockquote>
<p>That is where an adult commits an <em>ontucht</em> (immoral act) with a <em>minor</em> of the same sex, they can be sentenced to five years in prison.</p>


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vijf jaren</p>
</blockquote>
<p>That is where an adult commits an <em>ontucht</em> (immoral act) with a <em>minor</em> of the same sex, they can be sentenced to five years in prison.</p>
<p>Although the definition of <em>minor</em> varies substantially across the colonial codes, being 15 (the age of marriage for women in the civil code), 16, 18 (the age of marriage for men in the civil code) or 21 (article 330 of the civil code). It is now clear that the definition of child, at least in terms of protection from immoral acts, is <strong>18</strong> in Indonesian law, as defined the law of Protection of Children (23/2002).</p>
<p>There is also no question whatsoever that homosexuality is overwhelmingly regarded as <strong>immoral</strong> within Indonesia.</p>


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<p>There is also no question whatsoever that homosexuality is overwhelmingly regarded as <strong>immoral</strong> within Indonesia.</p>
<p>There are numerous cases where in the absence of a specific age in this article, cases involving participants age 16 have been found guilty. In other cases it has been argued that the law is ambiguous and unconstitutional, but in general it is certain that a case of homosexual activity with someone aged <strong>under</strong> 18 is likely to be deemed criminal. It may be arguable for those aged 18-21.</p>
<p>There appears to be some conflict between the punishment of 7 years for a lewd act in article 290, and 5 years for a lewd act with someone of the same sex in 292.</p>


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<p>There appears to be some conflict between the punishment of 7 years for a lewd act in article 290, and 5 years for a lewd act with someone of the same sex in 292.</p>
<p>Article 82 of the Law on Protection of Children 2002 <a href="https://peraturan.bpk.go.id/Home/Details/44473/uu-no-23-tahun-2002" rel="nofollow noreferrer">https://peraturan.bpk.go.id/Home/Details/44473/uu-no-23-tahun-2002</a> which was modified to split into articles 76E and 82 (to provide a 1/3 sentence uplift in case of involvement by a parent, teacher, guardian, etc.) by law 35 of 2014 provides:</p>
<blockquote>
<p>Setiap orang yang dengan sengaja melakukan kekerasan atau ancaman
kekerasan, memaksa, melakukan tipu muslihat, serangkaian kebohongan,
atau membujuk anak untuk melakukan atau membiarkan dilakukan perbuatan
cabul,</p>
</blockquote>


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kekerasan, memaksa, melakukan tipu muslihat, serangkaian kebohongan,
atau membujuk anak untuk melakukan atau membiarkan dilakukan perbuatan
cabul,</p>
</blockquote>
<p><em>Anyone who deliberately uses violence, threat of violence, forces, crafty tricks (<em>listige kunstrepen</em>), a tissue of lies (<em>samenweefsel van verdichtsels</em>), or <strong>seduces</strong> (<em>verleidt</em>) a child to perform or allow to perform an obscene act, is punished by at least 3, and not more than 15 years in prison.</em></p>
<p>The new criminal code, at Article 415 provides, that anyone who commits an <em>indecent act</em> (perbuatan cabul) with someone who they know or should suspect to be a child:</p>
<blockquote>
<p>Pasal 415 Dipidana dengan pidana penjara paling lama 9 (sembilan)
tahun, Setiap Orang yang:</p>
<p>a. melakukan perbuatan cabul dengan
seseorang yang diketahui orang tersebut pingsan atau tidak berdaya;
atau</p>
<p>b. melakukan perbuatan cabul dengan seseorang yang diketahui


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<p>a. melakukan perbuatan cabul dengan
seseorang yang diketahui orang tersebut pingsan atau tidak berdaya;
atau</p>
<p>b. melakukan perbuatan cabul dengan seseorang yang diketahui
atau patut diduga Anak.</p>
</blockquote>
<p>Further, the same criminal code clearly defines as rape, sex with anyone under the age of 18.</p>
<blockquote>
<p>Pasal 473</p>
<p>(1) Setiap Orang yang dengan Kekerasan atau Ancaman
Kekerasan memaksa seseorang bersetubuh dengannya, dipidana karena
melakukan perkosaan, dengan pidana penjara paling lama 12 (dua belas)
tahun.</p>
<p>(2) Termasuk Tindak Pidana perkosaan dan dipidana sebagaimana
dimaksud pada ayat (1) meliputi perbuatan:</p>
<p>b. persetubuhan dengan Anak;</p>
<p>(3) Dianggap juga melakukan Tindak Pidana perkosaan, jika dalam
keadaan sebagaimana dimaksud pada ayat (1) dan ayat (2) dengan cara:</p>
<p>a. memasukkan alat kelamin ke dalam anus atau mulut orang lain;</p>
<p>b. memasukkan alat kelamin orang lain ke dalam anus atau mulutnya


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<p>a. memasukkan alat kelamin ke dalam anus atau mulut orang lain;</p>
<p>b. memasukkan alat kelamin orang lain ke dalam anus atau mulutnya
sendiri; atau</p>
<p>c. memasukkan bagian tubuhnya yang bukan alat kelamin
atau suatu benda ke dalam alat kelamin atau anus orang lain.</p>
<p>(4) Dalam hal Tindak Pidana sebagaimana dimaksud pada ayat (1), ayal (21 huruf
c, ayat (2) huruf d, dan ayat (3) dilakukan terhadap Anak, dipidana
dengan pidana penjara paling singkat 3 (tiga) tahun dan paling lama 15
(lima belas) tahun dan pidana denda paling sedikit kategori IV dan
paling banyak kategori VII.</p>
</blockquote>
<p>'persetebuhan dengan anak' means 'sexual intercourse with a child', where Article 150 defines a child as someone under the age of 18.</p>
<p>The definition of rape, including sex with a child, includes any penetration of the anus or genitals by any object/fingers/penis, as well as inserting genitals into the mouth, anus, or genitals.</p>
<p>Therefore in summary:</p>


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<p>Therefore in summary:</p>
<p>pre-2026:</p>
<ul>
<li>sexual intercourse with a girl under 15 is a crime under the criminal code</li>
<li>a lewd act with a person under 15 is a crime under the criminal code</li>
<li>a lewd act with a minor of the same sex, where 'minor' is not clearly defined, but is likely to be interpreted as 18, is a crime under the criminal code</li>
<li>seducing a child, being someone under 18, to commit a lewd act, is a crime under the Protection of Children Act</li>
</ul>
<p>post-2026</p>
<ul>
<li>oral sex, vaginal penetration, or anal penetration, of any person under 18 is classed as <strong>rape</strong></li>
<li>a lewd act not falling into the above definition of rape, with a person under 18, is a crime. This <strong>repeals</strong> Article 82 of the Child Protection Act which required 'seduction', or 'force', etc. This is no longer required, and there is a very clear age of consent for all sexual activity of <strong>18</strong>.</li>
</ul>


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</ul>
<p>It can be seen:</p>
<ul>
<li>the gay and heterosexual age of consent will firmly be 18, from 2026.</li>
<li>the current heterosexual age of consent is not less than 15, but there is latitude for 15-17 to deem the party 'seduced' (seems more likely e.g., if there is age difference)</li>
<li>the current homosexual age of consent is not clearly defined but can reasonably be deemed to be 18.</li>
</ul>
<p>Please note that I use the term 'lewd act' or 'obscene act' to refer to any sexual act. This is correct in terms of law. All forms of sexual contact are classed as 'lewd' or 'obscene' acts, in that the clear understanding is that they are immoral acts, except between a husband and wife.</p>


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Question Title: Can B-2 immigrants stay between time of mailing Adjustment of Status forms and their receipt if their visas expire in between?

Question Body: <p>One of my friends is an American citizen, but her husband and kids are not (B-2 visas). Their I-94s expire on May 15th, so they are applying for Adjustment of Status with I-485 and I-130 forms. I know that their period of authorized stay extends after May 15th once their forms are received and their case is &quot;pending&quot; at USCIS. But is it legal for her husband and kids to stay in the United States in the time period between the mailing of the form (before May 15th), and the receipt of the form by USCIS after May 15th?</p>


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Answer 1: <p>They are not subject to deportation while their Adjustment of Status application (I-485) is pending. An application is considered filed when it is officially received by USCIS, not when it is mailed. (Of course, they wouldn't know the date it was officially received, until they receive the I-485 receipt, there will be uncertainty about when exactly it was filed. But when they do receive their I-485 receipts, it will be retroactively clarified.)</p>


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<p>If their I-485s are received on or before May 15 (if that is the expiration date of their I-94s), they were not deportable at any point. If their I-485s are received after May 15, there will be a period of time (from after their I-94 expires until their I-485 is received) when they will be technically deportable, but it is extremely unlikely that they would be caught and put into deportation proceedings during a short overstay. (And even if they are put into removal proceedings, Adjustment of Status can still be filed in removal proceedings, though it's more complicated.)</p>


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<p>As for the effect on their Adjustment of Status application, it makes no difference whether the application is received before or after May 15. Although being out of status at the time of filing makes one ineligible for Adjustment of Status in most categories (see <a href="https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-3" rel="nofollow noreferrer">7 USCIS-PM B.3</a>), it does not apply in the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen), as is the case with the applicants here. See also <a href="https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-8#S-B" rel="nofollow noreferrer">7 USCIS-PM B.8(B)</a>:</p>
<blockquote>
<p>Certain adjustment bars do not apply to an immediate relative,
including the spouse or child (unmarried and under 21 years old) of a
U.S. citizen, and the parent of a U.S. citizen older than 21.[2]</p>
<p>An adjustment applicant applying as an immediate relative may be


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U.S. citizen, and the parent of a U.S. citizen older than 21.[2]</p>
<p>An adjustment applicant applying as an immediate relative may be
eligible to adjust status even if:</p>
<ul>
<li><p>The applicant is not in lawful immigration status on the date he or she files the adjustment application;</p>
</li>
<li><p>The applicant has ever failed to continuously maintain a lawful status since entry into the United States;</p>
</li>
</ul>
</blockquote>
<p>This applies no matter how long the person was out of status. Even if someone's status expired years ago, if they are in the Immediate Relative category and still in the US, they are just as eligible for Adjustment of Status as someone who is in status.</p>


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Question Body: <p>I'm thinking of writing a hobbyist thesis on the parole and probation and mandatory minimum laws in Asia.</p>
<p>And I've been looking for case law regarding the Code of Criminal Procedure, 1973 (<a href="https://www.indiacode.nic.in/handle/123456789/16225?sam_handle=123456789/1362" rel="nofollow noreferrer">CrPc</a>) sections 432/433 about if those laws are applicable to mandatory minimum sentences or not. There are various directories I searched through and couldn't find anything (possibly because the provisions of these sections are at the discretion of governments rather than courts)</p>
<p>edit;; some of the websites I've tried searching for case law include</p>
<p>Indiankanoon , AIRonline , SCI.in/judgements</p>
<p>I can't like those sites firectly because of the phone u.i bugs , I'll try that later</p>
<p>but these are the main 3 directories where 90% of the cases are</p>


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<p>I can't like those sites firectly because of the phone u.i bugs , I'll try that later</p>
<p>but these are the main 3 directories where 90% of the cases are</p>
<p>I also want to know if crpc 432 and 433 are applicable In case a law not only has a minimum sentance but also a non obstante clause like this</p>
<blockquote>
<p>the provisions of this act are regardless of anything contained in any other law for the time being in force</p>
</blockquote>
<p>the supreme court in India has declared that &quot;for the time being in force&quot; means any time unless expressly provided by any other law for the time being in force</p>


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Answer 1: <p>It's not clear what specific detail you're looking for, but <a href="https://law.meta.stackexchange.com/a/262/35069">Casemine</a> offers these results which may assist with your research:</p>
<ul>
<li><p><a href="https://www.casemine.com/search/in/%22Code%20of%20Criminal%20Procedure%22%20%22432%22" rel="nofollow noreferrer">&quot;Code of Criminal Procedure&quot; &quot;432&quot;</a></p>
</li>
<li><p><a href="https://www.casemine.com/search/in/%22Code%20of%20Criminal%20Procedure%22%20%22433%22" rel="nofollow noreferrer">&quot;Code of Criminal Procedure&quot; &quot;433&quot;</a></p>
</li>
</ul>


Tags: india, legal-research


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Question Title: In the US, why are companies giving big &quot;let go&quot; package to people they want to let go?

Question Body: <p>It is shown in movies and is probably true, such as in the movie Jobs about Steve Jobs, that when he came back to Apple as the CEO, he found out who was not productive or who were probably not inline with his operating style, and gave them a big envelope, with an offer to leave that they found hard to refuse.</p>
<p>But the thing is, we often hear, the boss could let a person go because they don't like the color of their hair (or dyed hair), and it is &quot;employment at will&quot;.  So the company can just tell you that you don't have to come back the next day. They may give the person some severance, but they don't have to, not to mention that they don't have to give the person a &quot;big package&quot; that they find hard to refuse.</p>
<p>So what is the reason companies give them a big package to leave?</p>


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Answer 1: <p>There are really about three tiers of employees for these purposes. Also, the reasons are a mix of legal and business considerations.</p>
<p>At the bottom, severance payments can be made in lieu of unemployment insurance claims being made by the laid off employees. Severance payments for workers at the very bottom are often modest.</p>
<p>At the top, &quot;golden parachutes&quot; are often written into the individually negotiated employment contracts of senior executives. Someone like a Steve Jobs will have negotiated a contract very favorable to him in the event of his termination with the board of directors when he is hired with attorneys on both sides heavily involved in its drafting.</p>


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<p>In between, one of the reasons is to get a waiver of claims, for example, due to allegations of employment discrimination, harassment, and past work place related injuries that weren't properly processed through the worker's compensation system, and to reaffirm the existence of non-competition, non-solicitation, non-disclosure, non-disparagement, and assignment of intellectual property rights of the terminated employees.</p>


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<p>Being able to &quot;dot i's and cross t's&quot; and definitively foreclose litigation from laid off employees also looks good to stockholders and prospective investors. If severance agreements cutting off liability and ruling out the possibility that sloppy paperwork could compromise the firm's intellectual property to be compromised by disgruntled former employees who no longer have a stake in the firm's well being were entered into, a larger layoff would often be followed by a stock price lag reflecting unknown contingent liabilities and intellectual property risks from former employees.</p>
<p>Closing off residual liability is particularly important in firms with stock or stock option compensation for a large group of employees and for firms with defined benefit pension plans.</p>


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<p>Closing off residual liability is particularly important in firms with stock or stock option compensation for a large group of employees and for firms with defined benefit pension plans.</p>
<p>But, it goes beyond that. There is also just a sense of moral obligation on the part of senior managers establishing the severance terms to good, loyal employees who are losing their jobs of often many years through no fault of their own. Most of those senior managers were once in the same position, worked with the employees who were laid off personally, and can related to their plight. In a publicly held firm, even for insider members of the board of directors, the shareholders are an impersonal abstraction, while the laid off employees are genuine people whom the executives implementing the plan know a sample of personally.</p>


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<p>Of course, institutionally, this economy wide practice of big businesses also helps to fend off pressures from governments to impose bigger severance payment requirements as a matter of law. Substantial severance payments also discourage unionization by the employees who aren't laid off since it makes the employer look trustworthy despite not having its feet held to the fire by the law or a union.</p>


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<p>Finally, it is a given that many of the laid off employees will land on their feet finding mid- to senior level jobs in the same industry or a related industry, or starting their own firms that may do business with the firm that laid them off, either as consultants providing institutional knowledge that was lost in the layoff to due carelessness, or as vendors or joint venture partners. A stingy severance package could sow ill will towards the former employer that could come back to bite that firm later, while a generous package will rarely leave significant ill will from the former employees who find new positions whom the firm will end up dealing with later on.</p>


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Answer 2: <p>A severance package may be legally required, depending on the state.</p>
<p>But the company can also make it conditional: You get this generous severance package if you sign an NDA, a non-disparagement agreement, and promise not to sue the company. In that case, the company gets legal security for not very much money. And the ex-employee gets money for not suing etc. which they may not have planned to do anyway.</p>
<p>In my case companies also paid for a lawyer of my choice to check the contracts. Which is cheap, it demonstrates they are not trying to rip me off, and I can’t claim later that I didn’t understand the contract.</p>


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<p>In each case I could have refused to sign, but would have only received the legal minimum. If there is unfinished business about an accident where you think the company owes you half a million, you don’t sign. If you think they owe you $500 for travel expenses you sign. (Typical numbers $10,000 legally required plus $500 expenses vs $25,000 voluntary payment and you can’t sue).</p>
<p>Paying $25,000 and as a result everyone is happy may be a very good deal for the company.</p>


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Question Title: What happens if a witness invokes the 5th and is forced to answer?

Question Body: <p><a href="https://law.stackexchange.com/questions/91195/when-you-plead-the-5th-and-a-judge-asks-you-questions-about-it-is-that-conversa">Follow up question to this one.</a></p>
<p>What would happen if a witness invokes his right not to self-incriminate the judge deems it unreasonable and tells the witness to answer the question and by doing so it he does end up incriminating himself?</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>Canada has a similar protection. <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art13.html" rel="nofollow noreferrer">Section 13 of the <em>Canadian Charter of Rights and Freedoms</em></a> says that:</p>
<blockquote>
<p>A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.</p>
</blockquote>
<p>The person is protected against the use of their compelled testimony or any evidence derived therefrom in any subsequent criminal proceedings (other than for perjury).</p>


Tags: constitutional-law


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Question Title: Is it Illegal for me to refuse to hire a white child actor because the already selected parent is black and the child isn&#39;t adopted?


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Question Body: <p>Title VII of the Civil Rights Act of 1964 reads:</p>
<blockquote>
<p>&quot;It shall be an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin&quot;</p>
</blockquote>
<p>However, there is an exception made for BFOQs (Bona Fide Occupational Qualifications).  Specifically the law states</p>
<blockquote>
<p>&quot;It shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.&quot;</p>
</blockquote>


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</blockquote>
<p>Race and color are included in the first section, making it illegal to refuse to hire someone on those basis; However, the BFOQ exception does not apply to race or color.  Thus it would appear there is never a situation where one can choose an individual based off of their race.</p>
<p>So consider a situation where I'm casting for some play or movie and I've already picked the a black man and women for the main married couple.  I'm now trying to pick a child to play the biological son of these characters.  This would seem a clear case of a BFOQ if race were included in the exception, The audience is clearly going to notice if the child and parents were a different race and that is going to lead to either confusion or expectation that the child was adopted that could mess with the narrative, so the race of the child seems relevant.</p>


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<p>However, as I said, BFOQ exception doesn't appear to apply to race or color.  Does that mean that it would be illegal in the USA to refuse to hire a white child in this situation?</p>
<p>Assuming that it would be how does the TV and Movie industry manage to keep race of family members consistent without constantly having to pay out settlements to people who were excluded due to their race?</p>


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Answer 1: <p>Courts have not yet reached a final answer on whether the practice you've described would be illegal.</p>
<p>On its face, this practice seems to be a straightforward violation of the laws you've quoted. Refusing to hire someone because he is white is discrimination on the basis of race or color, and neither of those criteria can be bona fide occupational qualification.</p>
<p>Nonetheless, it seems to be generally accepted that this practice remains legal, though there remains some disagreement as to <em>why</em> it is legal.</p>


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<p>Nonetheless, it seems to be generally accepted that this practice remains legal, though there remains some disagreement as to <em>why</em> it is legal.</p>
<p>As noted in Just A Guy's answer, lawmakers appeared to believe that this practice would be legal because casting directors could limit their choices to people who &quot;appear&quot; to be of a certain race, rather than limiting themselves to people who <em>actually</em> are members of a race. But legislative commentary isn't actually controlling when it runs contrary to the text of the law, as this commentary is. After all, one cannot generally appear to be black without the color of his skin being black.</p>
<p>Arthur Larson, a professor at Duke Law, offered a similar approach:</p>
<blockquote>


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<blockquote>
<p>Perhaps the only way an employer could deal with this type of problem would be to cast his requirements in neutral terms so as to come within <em>Griggs</em> and its business necessity rule. The employer might, let us say, announce that he will consider applicants for the part of Henry VIII only if they bear a sufficient likeness to Henry VIII so that, with suitable make-up, they would present a convincing representation of the well-known monarch. This would rule out women, and many men too thin to be successfully padded out or too short to be adequately regal, as well as most blacks. As to black applicants, the employer could quite possibly contend persuasively that no amount of white make-up would do an adequate job of transformation, just as no amount of padding would save the day for a 110-pound white aspirant. Therefore, the neutral test of rough similarity to Henry might be successfully backed up by the business necessity rule.</p>
</blockquote>


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</blockquote>
<p>A. Larsen, Employment Discrimination, § 72.10.</p>
<p>Although this issue seems like it might pop up all the time, I was only able to find one case where it was actually litigated. And in that case, there was no real discussion of whether race was or was not a BFOQ, or whether there was some &quot;business necessity&quot; for limiting casting to white candidates.</p>
<p>Instead, the producers argued -- and the court agreed -- that casting decisions are protected by the First Amendment because they have expressive consequences and &quot;are a necessary component of any entertainment show's creative content&quot;:</p>
<blockquote>


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<blockquote>
<p>The producers of a television program, a movie, or a play could not effectuate their creative vision, as embodied in the end product marketed to the public, without signing cast members. The plaintiffs seek to drive an artificial wedge between casting decisions and the end product, which itself is indisputably protected as speech by the First Amendment. Thus, regulating the casting process necessarily regulates the end product. In this respect, casting and the resulting work of entertainment are inseparable and must both be protected to ensure that the producers' freedom of speech is not abridged.</p>
</blockquote>
<p><a href="https://casetext.com/case/claybrooks-v-am-broad-cos-inc" rel="nofollow noreferrer"><em>Claybrooks v. Am. Broad. Cos., Inc.</em>, 898 F. Supp. 2d 986, 999 (M.D. Tenn. 2012)</a>.</p>


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Answer 2: <p><strong>TL;DNR</strong>: Under Title VII, it would be illegal to require the actor to <strong>be black</strong>, but it would be legal to require the actor to <strong>look black</strong>.</p>
<p>As you say, the &quot;bona fide occupational qualification&quot; (BFOQ) exception does not apply in this case. Courts have consistently followed the express language of the <a href="https://www.law.cornell.edu/uscode/text/42/2000e-2#e" rel="noreferrer">statute</a>, and held that the BFOQ exception applies only to discrimination based on &quot;religion, sex or national origin.&quot; As the Equal Employment Opportunity Commission's &quot;Facts about Race/Color Discrimination&quot; <a href="https://www.eeoc.gov/laws/guidance/facts-about-racecolor-discrimination?renderforprint=1" rel="noreferrer">page</a> says, race can never &quot;be a bona fide occupational qualification under Title VII.&quot;</p>


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<p>To get around the wording of Title VII, casting directors rely on the distinction between &quot;is black&quot; and &quot;looks black.&quot; In theory this approach means a white actor could be hired to play the child of black parents, although as a practical matter, that seems unlikely.</p>
<p>This approach was first offered during the debates in Congress over Title VII. For example, in their &quot;<a href="https://www.congress.gov/88/crecb/1964/04/08/GPO-CRECB-1964-pt6-2-1.pdf#page=30" rel="noreferrer">Interpretive Memorandum,</a>&quot; the Senate floor managers say:</p>
<blockquote>


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<blockquote>
<p>Although there is no exemption in Title VII for occupations in which race might be deemed a bona fide job qualification, a director of a play or movie who wished to cast an actor in the role of a Negro, could specify that he wished to hire someone with the physical appearance of a Negro – but such a person might actually be a non-Negro. Therefore, the act would not limit the director's freedom of choice.</p>
</blockquote>


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</blockquote>
<p>PS For those who want more, <a href="https://www.skoler-abbott.com/2016/09/28/are-casting-calls-for-actors-of-certain-races-or-national-origins-illegal/#:%7E:text=To%20the%20first%20point%2C%20Title,BFOQ.%E2%80%9D%20To%20the%20second%2C" rel="noreferrer">there</a> are <a href="https://www.dhillonlaw.com/blog/race-discrimination-in-casting-hollywood-roles/" rel="noreferrer">plenty</a> of <a href="https://www.ohioemployerlawblog.com/2016/04/no-matter-what-producers-of-hamilton.html" rel="noreferrer">blog posts</a> and a smattering of scholarly articles. This <a href="https://core.ac.uk/download/pdf/216982742.pdf" rel="noreferrer">article</a>, asking whether there should be a BFOQ for entertainment, offers a thorough discussion that is fairly accessible and friendly to non-academics.</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;" rel="tag">england-and-wales</a></p>
<p>The <a href="https://en.wikipedia.org/wiki/Equality_Act_2010" rel="nofollow noreferrer"><strong>Equality Act 2010</strong></a> makes a specific exception for film and theatre actors as well as models. You can specify a range of pre-conditions including age, race, gender, etc.</p>
<blockquote>
<p>Part 1: Occupational requirements</p>
<p><strong>787.</strong> This paragraph provides a general exception to what would otherwise be unlawful direct discrimination in relation to work. The exception applies where being of a particular sex, race, disability, religion or belief, sexual orientation or age – or not being a transsexual person, married or a civil partner – is a requirement for the work, and the person whom it is applied to does not meet it.</p>


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<p><strong>789.</strong> <strong>The need for authenticity or realism might require someone of a particular race, sex or age for acting roles (for example, a black man to play the part of Othello) or modelling jobs.</strong></p>
<p><sub><Sup><a href="https://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/16/26/1" rel="nofollow noreferrer">c.15 &gt; Explanatory Notes &gt; Commentary on Sections &gt; Part 16 &gt; Schedule 9 &gt; Part 1</a></sub></Sup></p>
</blockquote>
<p><a href="https://i.stack.imgur.com/iabAHm.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/iabAHm.png" alt="enter image description here" /></a></p>


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Question Title: What is the legal situation if you perform a citizen&#39;s arrest on a security guard?


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Question Body: <p>The law on citizens arrest is <a href="https://www.legislation.gov.uk/ukpga/1984/60/section/24A" rel="nofollow noreferrer">here</a> and summarised by the police <a href="https://www.westyorkshire.police.uk/ask-the-police/question/Q508" rel="nofollow noreferrer">here</a>:</p>
<blockquote>
<ol start="2">
<li>How do I know if I can make a citizens arrest?</li>
</ol>
<p>You can make an arrest if the suspect is actually committing the offence or if you reasonably suspect them of committing it, or when the offence has been committed and you reasonably suspect them of having committed it.</p>
<p>There is no specific wording to use when making a citizens arrest. However you must inform the person you are arresting as soon as possible what you are doing, why you are doing it and what offence you believe the person has committed.</p>
</blockquote>


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</blockquote>
<p>Suppose one is physically restrained by security guards, <a href="https://www.theguardian.com/uk-news/2023/mar/23/boy-handcuffed-civilian-security-staff-shop-chichester-superdrug" rel="nofollow noreferrer">similar to that in this news story</a>.  At no point during the restraint do they inform you they are arresting you, why they are doing it and what offence they believe you to have committed.  After the 20 seconds or so that is shown here, you say &quot;I am performing a citizen's arrest upon you.  You are committing assault upon me and it is necessary to arrest you to prevent physical injury to myself&quot;.  Also assume that you have committed no offence, you sincerely believe that the security guards have and you are in immediate risk of physical injury.</p>
<p>What is the legal situation at this point?  Are the security guard required to submit to arrest?</p>


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Answer 1: <h2>Why do you think two people cannot arrest each other?</h2>
<p>If I &quot;reasonably suspect&quot; you of committing an offence (shoplifting) and you &quot;reasonably suspect&quot; me of committing an offence (assault), we can each arrest the other. As a practical matter, either or both of us can submit to the (alleged) arrest or resist the (alleged) arrest.</p>
<p>Whether either, both, or neither of us is right will be for the courts to decide at a latter date.</p>


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Answer 2: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p>At statute law (<a href="https://www.legislation.gov.uk/ukpga/1984/60/section/24A" rel="nofollow noreferrer">24A Police and Criminal Evidence Act 1984</a>):</p>
<blockquote>
<p>24A Arrest without warrant: other persons</p>
<p>(1) A person other than a constable may arrest without a warrant—</p>
<p>(a) anyone who is in the act of committing an indictable offence;</p>
<p>(b) anyone whom he has reasonable grounds for suspecting to be
committing an indictable offence.</p>
<p>(2) Where an indictable offence has been committed, a person other than
a constable may arrest without a warrant—</p>
<p>(a) anyone who is guilty of the offence;</p>


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<p>(2) Where an indictable offence has been committed, a person other than
a constable may arrest without a warrant—</p>
<p>(a) anyone who is guilty of the offence;</p>
<p>(b) anyone whom he has reasonable grounds for suspecting to be guilty
of it.</p>
<p>(3) But the power of summary arrest conferred by subsection (1) or (2)
is exercisable only if—</p>
<p>(a) the person making the arrest has reasonable grounds for believing
that for any of the reasons mentioned in subsection (4) it is
necessary to arrest the person in question; and</p>
<p>(b) it appears to the person making the arrest that it is not
reasonably practicable for a constable to make it instead.</p>
<p>(4) The reasons are to prevent the person in question—</p>
<p>(a) causing physical injury to himself or any other person;</p>
<p>(b) suffering physical injury;</p>
<p>(c) causing loss of or damage to property; or</p>
<p>(d) making off before a constable can assume responsibility for him.</p>


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<p>(b) suffering physical injury;</p>
<p>(c) causing loss of or damage to property; or</p>
<p>(d) making off before a constable can assume responsibility for him.</p>
<p>[F2(5) This section does not apply in relation to an offence under Part
3 or 3A of the Public Order Act 1986.]] (stirring up racial or religious hatred)</p>
</blockquote>
<p>Are the security guards committing an indictable offence? If they are committing assault occasioning actual bodily harm, or worse than that, then yes. Less than that, then likely no.</p>
<p>You can be reasonably confident they will call the police and wait for the police to attend. Therefore you don't need to make the arrest yourself, you can ask the police when they arrive. So this situation doesn't seem to satisfy a condition of the statute, unless you are suffering physical injury (but is that because of the guards behaviour or your resistance).</p>


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<p>Someone attempting to escape citizen's arrest commits the offence of escape from lawful custody and someone using force to resist or escape commits the offence of assault with intent to resist arrest. But I imagine it unlikely that there would be a prosecution in the circumstances described.</p>
<p>At common law any person has the power to arrest for a common law breach of the peace, which is far more broad.</p>
<p>Practically speaking the security guards are unlikely to stop restraining you just because you use some magic words. Generally it seems best for you to comply at the time (reducing the risk of injury to all involved) and (if you have a case against them) complain and sue later. If you try to use force you may well put yourself at legal risk (criminal or civil).</p>


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Question Body: <p>I was thinking about the <code>or later</code> part that is often used in licensing
software. When reading <a href="https://www.gnu.org/licenses/gpl-3.0.html" rel="noreferrer">https://www.gnu.org/licenses/gpl-3.0.html</a>, I've found
this:</p>
<blockquote>
<p>The Free Software Foundation may publish revised and/or new versions of the
GNU General Public License from time to time. Such new versions will be
similar in spirit to the present version, but may differ in detail to address
new problems or concerns.</p>
</blockquote>
<p>However, nowhere in the text of the license is specified what is &quot;The Free
Software Foundation&quot;. The wording would be satisfied if I registered entity
called &quot;The Free Software Foundation&quot; in Uruguay or somewhere and released
something called GPLv4.</p>
<p>Would that actually be legal? Reading the text of the license, it should be
enough, but since I have no legal background I'm not sure.</p>


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Answer 1: <p>In practice, it is abundantly clear to which entity the “Free Software Foundation” refers, even if the FSF were to change its name, even if there are unaffiliated organizations with the same name.</p>
<p>Version 3 of the GPL also contains a link to the FSF website, making it clear which organization this referred to in 2007 when the license text was published. If there are doubts about the identity of the FSF in the future, it will be possible to trace the identity back to the 2007 FSF e.g. through public filings that the FSF is required to make available as a non-profit.</p>
<p>Previous versions of the GPL contained an address for the FSF, which similarly disambiguates the identity of this entity at the time of writing.</p>


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<p>Previous versions of the GPL contained an address for the FSF, which similarly disambiguates the identity of this entity at the time of writing.</p>
<p>The FSF also holds a trademark for the brand &quot;Free Software Foundation&quot; in the US and EU, preventing an unaffiliated organization from using this name in an international context. Of course this doesn't affect an organization in Uruguay, but it's very clear that such an Uruguyan entity is not the FSF that wrote the GPL.</p>
<p>The interesting questions is what happens if the FSF is dissolved. Can it assign its responsibilities and rights as the GPL license steward to someone else? I assume it can, and that the subsequent license steward would be able to produce sufficient documentation to substantiate this claim. If not, those are likely to be some interesting court cases.</p>


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Answer 2: <p>Take a look at the very first line of the GPL text to which you linked:</p>
<blockquote>
<p>Copyright © 2007 Free Software Foundation, Inc. <a href="https://fsf.org/" rel="nofollow noreferrer">https://fsf.org/</a></p>
</blockquote>
<p>There really isn't any ambiguity over which &quot;Free Software Foundation&quot; entity the license refers to, given that they're the copyright holders of the license itself.</p>


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Answer 3: <p>GPL v3 is protected by copyright. Nobody but the copyright holder has any right to create a work derived from GPL v3. Mostly this happens so that people can’t create a license that looks superficially like GPL v3 and has some nasty bits hidden in some places.</p>
<p>I’m not sure if it would be legal to create a license that has nothing to do with GPL licenses at all, and call it GPL v4. It might be fraud if you try to hold me to the terms, or a trademark violation.</p>
<p>If FSF gets dissolved or sold, someone will end up with the assets, including the copyright of the GPL v3 license, and we are back to the start.</p>
<p>“The free software foundation may…” is only setting out which one of many legal things the FSF may choose to do in the future they say they may actually be doing, and likely isn’t legally binding.</p>


Tags: licensing, open-source-software, gpl


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Question Title: Compensation for custody awaiting trial resulting in acquittal?

Question Body: <p>I was accused of a crime and held in custody for 8 months then acquitted at court,  I missed the first 8 months of my only child's life, and lost both my job and my partner.  Could I be entitled to compensation? </p>


Answer 1: <p>In all but a few U.S. states the answer is that you are not entitled to any compensation. This is grossly unfair, but is the dominant rule by far in most jurisdictions in the U.S.</p>


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Answer 1: <p>In all but a few U.S. states the answer is that you are not entitled to any compensation. This is grossly unfair, but is the dominant rule by far in most jurisdictions in the U.S.</p>

<p>As a matter of legal doctrine this is justified on the grounds that a criminal prosecution requires proof beyond a reasonable doubt, and many people who are actually guilty may be acquitted anyway because the standard of proof in a criminal case is so high. The classic example of that distinction is the <a href="https://en.wikipedia.org/wiki/O._J._Simpson_murder_case" rel="noreferrer">O.J. Simpson murder case</a>, in which O.J. Simpson was acquitted of murdering his wife in a criminal prosecution, but was found liable for murdering her by the lower civil action preponderance of the evidence standard in a wrongful death lawsuit brought by her family.</p>


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<p>(In reality, most acquittals involve juries who think that the defendant was innocent, but that isn't reflected in the choice before them to convict or acquit a defendant.) </p>

<p>The only compensation to which you are entitled as a matter of law if you are acquitted of a crime, per the U.S. Supreme Court, is a refund of any fines or costs payable only upon conviction of a crime, which you paid or had taken from your assets, prior to your acquittal. <em>See <a href="https://supreme.justia.com/cases/federal/us/581/15-1256/opinion3.html" rel="noreferrer">Nelson v. Colorado</a></em>, 581 U.S. ___ (2017).</p>


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<p>There would an exception if you can show that a law enforcement officer intentionally brought charges without probable cause <a href="http://www.virginialawreview.org/sites/virginialawreview.org/files/Kossis_Book.pdf" rel="noreferrer">in a civil lawsuit you bring against the law enforcement officer</a>, which is realistically impossible in almost all cases. (<a href="https://en.wikipedia.org/wiki/Prosecutorial_immunity" rel="noreferrer">Prosecutors</a> and <a href="https://en.wikipedia.org/wiki/Judicial_immunity" rel="noreferrer">judges</a> and jurors (see, e.g. <a href="https://www.oregonlaws.org/ors/132.210" rel="noreferrer">here</a>)) have absolute immunity from liability for their official acts related to the court process.)</p>


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<p>There are a few jurisdictions where you could bring a civil lawsuit for compensation based upon "actual innocence", rather than law enforcement misconduct. In those places, you could receive compensation if you could prove by a preponderance of the evidence (or with a prosecutor's affirmation) that you were actually factually innocent, so you could get some compensation even in the absence of an intentional violation of your civil rights. Texas is one state that has such a scheme, with important limitations, as explained in <a href="https://www.prisonlegalnews.org/news/2009/dec/15/ex-prisoners-acquitted-for-insufficient-evidence-may-not-sue-texas/" rel="noreferrer">this linked case</a>.</p>

<p>You would probably have to hire a lawyer with your own funds to bring either kind of lawsuit, and realistically, you wouldn't have been incarcerated for eight months pending trial if you had enough money to do that, because you would have posted bond and been released pending trial.</p>


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<p>There may be one or two states (I can't recall any from memory) where there might be a right to compensation merely because you are acquitted, but this would be an extreme outlier in terms of U.S. law.</p>

<p>Outside the United States, outcomes could vary dramatically from one country to another. They relevant law in England and Wales is discussed in an answer to <a href="https://law.stackexchange.com/questions/23506/defendant-compensation-after-not-guilty-verdict">this question</a> at Law.SE. <a href="https://academic.oup.com/jicj/article/8/2/407/848174" rel="noreferrer">International human rights law</a> does not recognize a right to compensation in these circumstances.</p>


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Answer 2: <p><a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" aria-label="show questions tagged &#39;france&#39;" rel="tag" aria-labelledby="tag-france-tooltip-container">france</a></p>
<p>Losses suffered through pre-trial detention <em>(détention provisoire)</em> are supposed to be compensated: <a href="https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006071154/LEGISCTA000006182924/#LEGISCTA000021331517" rel="nofollow noreferrer">code de procédure pénale, article 149</a>:</p>
<blockquote>


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<blockquote>
<p>(...) la personne qui a fait l'objet d'une détention provisoire au cours d'une procédure terminée à son égard par une décision de non-lieu, de relaxe ou d'acquittement devenue définitive a droit, à sa demande, à réparation intégrale du préjudice moral et matériel que lui a causé cette détention. Toutefois, aucune réparation n'est due lorsque cette décision a pour seul fondement la reconnaissance de son irresponsabilité au sens de l'article 122-1 du code pénal, une amnistie postérieure à la mise en détention provisoire, ou la prescription de l'action publique intervenue après la libération de la personne, lorsque la personne était dans le même temps détenue pour une autre cause, ou lorsque la personne a fait l'objet d'une détention provisoire pour s'être librement et volontairement accusée ou laissé accuser à tort en vue de faire échapper l'auteur des faits aux poursuites (...)</p>
</blockquote>
<blockquote>


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</blockquote>
<blockquote>
<p>Whoever was put into pre-trial detention within a procedure that ended with a final dismissal of charges or acquittal is entitled to full compensation for the moral and material prejudice suffered through the detention. However, no compensation is due when:</p>
<ul>
<li>acquittal is due to penal irresponsibility <em>[i.e. &quot;insanity defense&quot;]</em>;</li>
<li>the subject was granted amnesty after the pre-trial detention;</li>
<li>the statute of limitations runs out after the subject, detained for another reason, is freed;</li>
<li>the subject freely and voluntarily accused themselves, or wrongly let themselves be accused, in order to allow the real culprit to escape prosecution.</li>
</ul>
</blockquote>


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<li>the subject freely and voluntarily accused themselves, or wrongly let themselves be accused, in order to allow the real culprit to escape prosecution.</li>
</ul>
</blockquote>
<p>Court cases relating to such compensation are heard by the appeals court, and can be appealed to the <em>Commission nationale de réparation des détentions</em>, a subcommittee of the Cour de Cassation (highest appeal court in criminal matters). The Cour de Cassation website <a href="https://www.courdecassation.fr/la-cour/les-procedures-devant-la-cour-de-cassation/la-commission-nationale-de-reparation-des" rel="nofollow noreferrer">has a helpful analysis of the CNRD jurisprudence</a> if you are interested.</p>


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Question Title: Can messenger chat be used as evidence in courts?

Question Body: <p>My roommate agreed that I don't need to pay rent for the days I am not in apartment. I have to go to Texas for a 6 month period. I informed my roommate before adding him as roommate. We had this communication in WhatsApp chat. Can I use this chat in court in case if he harasses me to pay half rent?</p>


Answer 1: <p>Online conversations are generally allowed evidence.</p>
<p>However, EVERYTHING in the chat should be considered, as well as any later actions.</p>
<p>Were there later conversations that said something different?<br>
Did the lease you signed have different terms?</p>
<p>One line in a WhatsApp does not make your case a &quot;slam dunk&quot;. It may only be one piece of evidence in a much larger context.</p>


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Answer 2: <p>Generally speaking, yes.</p>
<p>This issue arose in the trial of Michael Avenatti. There, Avenatti tried to exclude screenshots of his Whatsapp messages with Donald Trump, claiming that the government needed to use the original, electronic version of the messages that had been stored on his phone, and that the government had never produced that version to him. But the Court denied his motion and permitted the government to use the screenshots:</p>
<blockquote>


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<blockquote>
<p>Avenatti's first and third requests — to suppress the WhatsApp messages evidence and to compel immediate production of certain witnesses' prior statements — require comparatively little discussion. With respect to the first, the law is clear that the Government has an obligation to produce only what is in its possession, custody, or control — and the Government complied with that obligation here. Additionally, so long as the WhatsApp messages are properly authenticated at trial, they can be admitted even if they are not in their &quot;original, electronically stored&quot; format.</p>
</blockquote>
<p><a href="https://casetext.com/case/united-states-v-avenatti-16" rel="nofollow noreferrer"><em>United States v. Avenatti</em>, 559 F. Supp. 3d 274, 277 (S.D.N.Y. 2021)</a></p>


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</blockquote>
<p><a href="https://casetext.com/case/united-states-v-avenatti-16" rel="nofollow noreferrer"><em>United States v. Avenatti</em>, 559 F. Supp. 3d 274, 277 (S.D.N.Y. 2021)</a></p>
<p>So the main question for you would be whether you can authenticate those messages. The rules for authentication vary some from one jurisdiction to the next, but <a href="https://www.law.cornell.edu/rules/fre/rule_901" rel="nofollow noreferrer">Federal Rule of Evidence 901</a> is similar to what you'll see in most places:</p>
<blockquote>
<p>To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.</p>
</blockquote>


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</blockquote>
<p>So this just means that you have to have some evidence that the messages you're introducing in court are actually messages between you and the roommate. In most cases, you can just say under oath, &quot;These are screenshots of messages between me and my roommate.&quot;</p>


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Question Title: Can a person sell his own house in Idaho without any assistance from a broker or agent?

Question Body: <p>I've been studying real estate law lately for personal pleasure and to better understand the process of buying and selling because I happen to be selling right now. I opted to "sell by owner" using the popular site forsalebyowner.com. I opted for a package that includes an MLS number and posting to popular real estate sites.</p>

<p>After pulling the trigger, I find that apparently Idaho state law does not allow the sale of any property without a broker taking on the owner as a "customer". I learned this from a broker who called me. He was sent by forsalebyowner.com and is responsible for creating the MLS number. He quoted <a href="https://legislature.idaho.gov/statutesrules/idstat/title54/t54ch20/sect54-2086/" rel="nofollow noreferrer">Idaho code 54-2086</a>. The part that stands out:</p>


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<blockquote>
  <p>(3)  The duties set forth in this section are mandatory and may not be waived or abrogated, either unilaterally or by agreement.</p>
</blockquote>

<p>My impression until today was that neither a broker nor an agent was required for any real estate sale. The two parties could open escrow and proceed without them, though it is often advised to have a "real estate attorney" draft and review all documents before you sign them. Indeed, after reading nearly everything on forsalebyowner.com, this impression was reinforced. To the broker's credit, he conceded that Idaho is a bit unique.</p>

<p>Is this broker's claim and cite of Idaho code correct?</p>


Answer 1: <p>The cited law pertains to the regulation of real estate brokers and does not, itself, require the use of any broker. In fact, the preamble reads, in part,</p>


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Answer 1: <p>The cited law pertains to the regulation of real estate brokers and does not, itself, require the use of any broker. In fact, the preamble reads, in part,</p>

<blockquote>
  <p>If a buyer, prospective buyer, or seller is not represented by a
  brokerage in a regulated real estate transaction, that buyer or seller
  remains a customer, and as such, the brokerage and its licensees are
  nonagents and owe the following legal duties and obligations...</p>
</blockquote>

<p>It goes on to discuss various NON-oblgations of the NON-agents, but authorizes them to charge the "customer" fees for whatever services they do provide. This presumably includes such things as a Multiple Listing Service.</p>


Tags: real-estate


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Question Title: On what basis could the Federal Government legalize abortions?

Question Body: <p>Now that Roe vs. Wade is expected to be overturned, many politicians are calling for <a href="https://www.washingtonpost.com/politics/2022/05/03/abortion-roe-wade-codify-bernie-biden/" rel="noreferrer">legislation to protect the right to an abortion</a> to be passed on the federal level. But on what grounds could the federal government legalize abortions in all 50 states? Would they be forced to open federal &quot;abortion clinics&quot; to prevent state jurisdiction? Are there similar precedents of the Federal government legalizing something against the wishes of the states?</p>


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Answer 1: <p>The federal government has the power to regulate interstate commerce, and the current definition is incredibly broad -- certainly broad enough to include the provision of abortions.</p>
<p>If it were challenged, the government would likely rely on <a href="https://casetext.com/case/gonzales-v-raich" rel="noreferrer"><em>Gonzales v. Raich</em>, 545 U.S. 1 (2005)</a>. In <em>Gonzales</em>, two patients who used medical marijuana as authorized by state law challenged the federal government's laws prohibiting the use of medical marijuana. They argued that because they were growing their own marijuana, because it never left the state, and because it was for personal, noncommercial use, it was outside Congress' authority to regulate interstate commerce. But the Supreme Court rejected their arguments, holding that Congress could use its Commerce Clause authority to enact health-care laws regulating access to marijuana and pre-empt contradictory state health-care laws.</p>


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<p>The federal government's case for regulating abortions would be event stronger than its case in <em>Gonzales</em>: First, because obtaining an abortion is typically a commercial enterprise; it is likely covered by insurance, and even if it patient isn't charged, someone is likely paying the doctor money to perform it. Also, abortions more obviously implicate interstate commerce because patients frequently travel from state to another to obtain one, because clinics order supplies and services from outside the state, and because they rely on instrumentalities of interstate commerce (highways, telephone lines, the Internet) to do their job.</p>


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<p>Indeed, as far as I know, every court to consider the issue has concluded that regulating access to abortion is a straightforward application of the Commerce Clause. <em>See, e.g.</em>, <a href="https://casetext.com/case/terry-v-reno" rel="noreferrer"><em>Terry v. Reno</em>, 101 F.3d 1412, 1418 (D.C. Cir. 1996)</a> (“Violent and obstructive activity outside abortion clinics adversely affects interstate commerce in reproductive health services. In enacting the Access Act, Congress did not exceed its Commerce Clause power.”); <a href="https://casetext.com/case/cheffer-v-reno" rel="noreferrer"><em>Cheffer v. Reno</em>, 55 F.3d 1517, 1520-21 (11th Cir. 1995)</a> (“Congress found that doctors and patients often travel across state lines to provide and receive services, id.; in other words, there is an interstate market both with respect to patients and doctors. In addition, the clinics receive supplies through interstate commerce. ... Congress' findings are plausible and provide a


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there is an interstate market both with respect to patients and doctors. In addition, the clinics receive supplies through interstate commerce. ... Congress' findings are plausible and provide a rational basis for concluding that the Access Act regulates activity which &quot;substantially affects&quot; interstate commerce. Thus, the Access Act is a constitutional exercise of Congress' power under the Commerce Clause.”); <a href="https://casetext.com/case/us-v-wilson-537" rel="noreferrer"><em>U.S. v. Wilson</em>, 73 F.3d 675, 688 (7th Cir. 1995)</a> (“the Access Act may be viewed as a direct regulation of interstate commerce and confirms once again that the Act is well within Congress's power to legislate under the Commerce Clause.”).</p>


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<p>Reacting to <em>Dobbs</em>, then, Congress could write a law finding that existing state laws pose a threat to the interstate markets for providing and receiving reproductive services, and then rely on those findings to say that the only limits on abortion are X, Y, and Z, and that states may not impose any additional restrictions.</p>


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Answer 2: <p>Could Congress, by preempting state law, make abortion legal in all 50 states? The only thing thing that really matters is whether the Supreme Court would uphold such a law (and it would inevitably end up in front of the Supreme Court). I think it's unlikely, given the current conservative majority on the Court, that it would be upheld.</p>


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<p>It appears to be well-established that Congress has broad power to <em>ban</em> things, as long as the Supreme Court is persuaded that those things are a form of &quot;commerce&quot; (and the bar for this is not high). The constitutionality of the <a href="https://en.wikipedia.org/wiki/Partial-Birth_Abortion_Ban_Act" rel="nofollow noreferrer">Partial-Birth Abortion Ban Act of 2003</a> was upheld by the Supreme Court in <a href="https://en.wikipedia.org/wiki/Gonzales_v._Carhart" rel="nofollow noreferrer"><em>Gonzales v. Carhart</em></a>. The Opinion of the Court stated that Congress has the power under the Commerce Clause to &quot;regulate the medical profession&quot;. <a href="https://en.wikipedia.org/wiki/Gonzales_v._Raich" rel="nofollow noreferrer"><em>Gonzales v. Raich</em></a>, involving production and consumption of cannabis where no actual commercial activity occurred, and <a href="https://en.wikipedia.org/wiki/Wickard_v._Filburn" rel="nofollow noreferrer"><em>Wickard v.


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involving production and consumption of cannabis where no actual commercial activity occurred, and <a href="https://en.wikipedia.org/wiki/Wickard_v._Filburn" rel="nofollow noreferrer"><em>Wickard v. Filburn</em></a>, involving wheat production where no actual commercial activity occurred, are earlier cases on the same theme.</p>


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<p>But does anyone think that Congress could make cannabis <em>legal</em> in all states, preempting state laws to the contrary? Maybe for <em>medical</em> purposes, they could: at least one federal district court has concluded that state bans of FDA-approved prescription drugs are preempted by Federal Food, Drug, and Cosmetic Act. See <a href="https://scholar.google.com/scholar_case?case=951773783965811573" rel="nofollow noreferrer"><em>Zogenix v. Patrick</em></a>. But it is much harder to imagine that Congress could make <em>recreational</em> cannabis legal in all states and that the Supreme Court would uphold such a law against constitutional challenges. You could try to argue in front of the Court that the exact same power to regulate commerce that allowed Congress to ban cannabis in all states should, by the exact same reasoning, allow Congress to make cannabis legal in all states. I think the odds of this approach working with the conservative majority on the Court are pretty


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all states should, by the exact same reasoning, allow Congress to make cannabis legal in all states. I think the odds of this approach working with the conservative majority on the Court are pretty slim.</p>


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<p>Or, to give another hypothetical example, could Congress use its Commerce Clause power to make prostitution legal in all states, preempting state laws to the contrary?  Again, I think you'd find that the conservative majority on the Court would take a dim view on this. And while abortion is in no way comparable to prostitution, conservatives think that abortion is even worse, because it kills an unborn child. So I think it's unlikely that Congress could successfully preempt state-level bans on abortion.</p>
<p>If the Court had a different ideological composition, it would be really hard to say what outcome would be more likely. There is not a lot of relevant precedent.</p>


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Answer 3: <h2>Purse Strings</h2>
<p>The standard way to get near uniform state laws (or lack thereof) on an issue is to dangle bags of money in front of the states.  The states all have the power to set their legal driving and drinking ages, as well as their speed limits, to whatever they see fit, but yet these values were remarkably uniform for a time, with most driving ages being 16, most drinking ages being 21, and most highway speed limits being 65.  Congress has at various points used federal funding to make this happen; though some have been repealed or altered by this point, or had states decide they didn't wish to participate, resulting in a greater spread of values in the present day.  But in any case, by making certain funds contingent upon meeting conditions such as minimum ages, they can persuade states to meet those conditions to save themselves money.</p>


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<p>There are SCOTUS-imposed limits on how strong this &quot;persuasion&quot; can be.  The requirements have to be meaningfully related to what's being funded and the goal thereof (so putting abortion access requirements on environmental funding won't work), and it can't make up so large a portion of the state budget that it becomes impossible to pass up the funding.  Where the line on this is vague, I think it was last placed around .5%.</p>


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<p>On average, States spend about <a href="https://www.urban.org/policy-centers/cross-center-initiatives/state-and-local-finance-initiative/state-and-local-backgrounders/health-and-hospital-expenditures" rel="nofollow noreferrer">9-10% of their budget</a> on healthcare, with 9-10% of that coming from federal grants.  So approximately 1% of state budgets are predicated upon federal healthcare fundings.  Make at most half of those (on average) contingent upon meeting some minimum access to abortion care, and you may have yourself a SCOTUS-approvable way to constitutionally persuade, but not mandate, states to pass uniform sets of laws.  Some states may forgo this, and clearly with the current SCOTUS there's no telling what prior precedents they'll happily strike down, so there's no guarantees, but it otherwise creates financial pressures by offering alleviation of state budget issues.</p>


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Answer 4: <p>The Secretary of Health and Human Services wrote a letter to hospitals regarding the emergency treatment, required by the EMTALA act of 1986. According to the letter:</p>
<p>&quot;As frontline health care providers, the federal EMTALA statute rotects your clinical judgment and the action that you take to provide stabilizing medical treatment to your pregnant patients, regardless of the restrictions in the state where you practice.&quot; The letter is dated July 11, 2022. It provides support for emergency abortions that might not be allowed under state law.</p>
<p>See the letter at: <a href="https://www.hhs.gov/sites/default/files/emergency-medical-care-letter-to-health-care-providers.pdf" rel="nofollow noreferrer">https://www.hhs.gov/sites/default/files/emergency-medical-care-letter-to-health-care-providers.pdf</a></p>


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<p>There might be other regulations or directions that could be made under Federal regulations of health insurance, health insurors, or hospitals that serve Medicare or Medicare patients.</p>
<p>All these tools are indirect and limited in scope. It also seems that many such proposals would be struck down by the current courts.</p>


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Question Body: <p>A recent question asks whether one can <a href="https://law.stackexchange.com/questions/92303/avoiding-agreeing-to-or-amending-digital-contracts">escape the terms of an adhesion contract</a> by orally rejecting the terms while making a confirmation in writing.</p>
<p>It seems likely the answer is no, as the written confirmation is an objective manifestation of assent to the bargain.</p>
<p>But what if the customer doesn't actually provide written confirmation?</p>
<p>For instance, UPS stores ask customers to sign a digital contract as part of each transaction. It includes standard business-friendly terms for arbitration, class-action waiver, etc., and presents the customer with a signature box before proceeding to complete the transaction.</p>


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<p>So imagine the following: Buyer asks UPS deliver a package overnight. UPS offers overnight delivery for $50. Buyer agrees. Clerk processes the transaction and asks Buyer to agree to sign the agreement to standard UPS terms. Buyer reviews the terms and does not like them. Instead of signing in the signature box, Buyer takes the pen and writes something like:</p>
<ul>
<li>&quot;No.&quot;</li>
<li>&quot;Decline.&quot;</li>
<li>&quot;These terms are unacceptable.&quot;</li>
<li>&quot;I reject the arbitration clause.&quot;</li>
<li>Or &quot;I agree only to pay $50 in exchange for overnight delivery.&quot;</li>
</ul>
<p>The clerk either does not notice or does not care that Customer has not actually signed his name to the contract and completes the transaction.</p>
<p>UPS loses the package. Buyer sues. UPS moves to compel arbitration.</p>
<p>Must Customer arbitrate?</p>


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Answer 1: <h2>Option 1: The contract is not formed</h2>
<p>By writing a non-confirmation and explicitly denying the contract, the contract does not fulfil the <em>meeting of the minds</em>. There is no renegotiation, as the agent of the company is not allowed to negotiate.</p>
<p>In a strange fashion, UPS would not be entitled to $50, but the customer is not entitled to <strong>any</strong> delivery, storage of the parcel or even to leave it at the company - and can't sue for the loss of more than the $50 because that is the total extent of their damages: the unjustly paid fees.</p>
<h2>Option 2: The contract is still formed as offered by UPS</h2>


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<h2>Option 2: The contract is still formed as offered by UPS</h2>
<p>In the alternative, the contract <strong>has</strong> to be followed as written originally. In that case, the customer is obligated to arbitrate. In fact, the signing (or marking) of the terms of service might be simply <em>acknowledgment</em> of the standard contract, which was formed moments prior to the moment the customer handed over the package and paid.</p>
<p>The customer did not get any verification of the altered terms of service from the clerk - who couldn't negotiate those deals to begin with - and instead accepted the terms by not taking back the parcel.</p>


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<p>Would the customer truly want to deny the offered terms, he'd have canceled the transaction and taken the parcel. Instead, he left it with the clerk and paid the transaction, which in itself makes a contract formation <strong>by action</strong>, very much akin to how you form a contract under the standard terms of the store by paying at the cashier for a bottle of soda.</p>
<h2>Non-Option: altered deal</h2>
<p>The clerk is not tasked with negotiating or accepting different terms from those that UPS declares.</p>
<p>If the clerk just failed to notice the attempted altered deal, we are back to the two options above: either there is no deal, or the deal is as originally offered.</p>


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<p>If the clerk just failed to notice the attempted altered deal, we are back to the two options above: either there is no deal, or the deal is as originally offered.</p>
<p>Would the clerk has <strong>actively</strong> agreed to a deal that fall outside of his tasks, the whole situation collapses to a variation of Option 1, where there is no valid contract between UPS and the customer. However, in this case, the clerk is liable for the damage to the parcel and the damage to UPS.</p>


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Question Body: <p>I have been reading about Frank Harris's trial for contempt of court in February, 1914, and while there are a number of aspects that may strike us as odd now, such as that Harris was committed to prison for an &quot;indefinite period&quot; for the seemingly minor offence of printing comments about an ongoing divorce case in his magazine <em>Modern Society</em>, and then failing to offer a sufficiently abject apology, there is one thing that struck me in particular.</p>
<p>In court, Harris was represented by his barrister, Cecil Hayes, who, rather than apologising outright for the offence chose to seek to minimise it, offering an apology only for &quot;the little bits that had got in in a slipshod manner&quot; which would reflect on the character of Earl Fitzwilliam, one of the co-respondents named in the case. The Judge, Mr. Justice Horridge, was evidently not persuaded that this was an apology at all.</p>


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<p>My question is about where to place the blame for how Hayes conducted the case. If we assume he was following instructions from Harris, was he obliged to do so to the letter, or might he have decided, seeing how Horridge was inclined, to have interpreted his instructions in such a way that he apologised completely and unreservedly? Or was he absolutely obliged to follow his client's instructions as literally as possible, even if they were very unwise?</p>


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Answer 1: <h2>Barristers <em>must</em> represent their client as <a href="https://www.barstandardsboard.org.uk/for-the-public/finding-and-using-a-barrister/what-to-expect.html" rel="nofollow noreferrer"><em>they</em></a> see best</h2>
<blockquote>
<p>A barrister who is working for you must always think about what is best for you and do their job in a way that reflects that. <strong>This does not mean that a barrister can lie on your behalf, or that they must do everything you tell them.</strong> Their duty to the court comes above even their duty to you as their client and barristers must act with independence, honesty and integrity. This means, for example, that they cannot do anything for you that would go against their duty to the court.</p>
</blockquote>
<p>The barrister, not the client, is in charge of strategy and tactics.</p>


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</blockquote>
<p>The barrister, not the client, is in charge of strategy and tactics.</p>
<p>For the example you give, it’s quite likely that the barrister might have preferred to be more apologetic but they have a duty to the court that supervenes their duty to their client. If the client was not apologetic, the barrister can’t say they are.</p>


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Question Title: Is an image published in a book in Australia in 1925 public domain in the US?

Question Body: <p>I want to use an art image that was published in Australia in 1925 and publish it in the US.</p>
<p>Australian copyright law states that the image is protected for 70 years after the artist's death, who died in 1960. Therefore, the image will not be in the public domain in Australia until after 2030.</p>
<p>US public domain law states that the image is in the public domain in the United States since 2021, as it has been 95 years past the original publication date (1925). Is this a correct interpretation: that I am free to use and publish the image as a Public Domain image in the US, (but not Australia)?</p>
<p><a href="https://commons.wikimedia.org/wiki/Commons:Hirtle_chart" rel="nofollow noreferrer">https://commons.wikimedia.org/wiki/Commons:Hirtle_chart</a></p>


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Answer 1: <h2>No</h2>
<p>Or, at least, not on the basis you claim.</p>
<p>What matters is not the date it was first published in Australia, but the date it was first published in the United States. If it ever was - you might be the first.</p>
<p>First, all photographs taken before 1955 are public domain under Australian copyright <a href="https://www.nla.gov.au/using-library/copyright-library-collections/how-long-does-copyright-last" rel="nofollow noreferrer">law</a>. That’s because, before the US-Australia FTA in 2005, photographs had copyright for 50 years from creation. As part of the FTA, Australia adopted the (then and current) US period of death +70 years. However, this was not retrospective, works that were PD before 2005 - like this photograph since 1976 - remain PD.</p>
<p>But none of that matters for US copyright because the US does not follow the <a href="https://en.wikipedia.org/wiki/Rule_of_the_shorter_term" rel="nofollow noreferrer">rule of the shorter term</a>.</p>


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<p>To determine its status in the US, you need to find out when it (or a book or article containing it) was first legally published in the US, if it was, and apply the <a href="https://en.wikipedia.org/wiki/Public_domain_in_the_United_States" rel="nofollow noreferrer">law</a> applicable at that time as subsequently modified, including, if it was required to be registered, that it was registered.</p>


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Question Title: What is the Irish equivalent of a German UG entity?

Question Body: <p>I am looking at some options for eventually starting a small business in Ireland (several years from now, I'm at a very early stage).</p>
<p>In Germany, from what I understand, there is an entity type called a UG. It is smaller than a GmbH and requires less work/money to stay in compliant operation, but it's larger than a sole proprietorship and allows for both protection of personal assets and future growth. From what I understand, many people find UG entities good for small businesses -- think of a few employees, with the possibility to expand to a few dozen.</p>
<p>Is there an equivalent entity type in Ireland?</p>


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Answer 1: <p>You are likely looking for a <em>private company limited by shares</em> (Ltd).</p>
<p>The German UG and GmbH are certain kinds of limited companies. Here, &quot;limited&quot; means that liability is limited to the company's capital, thus protecting the company's owners. This is in contrast to a sole proprietor, who is liable with all their assets. In order to protect customers and business partners, German law expects the limited company (GmbH) to have a capital of at least EUR 25.000. The UG is a baby-GmbH, with equivalent bureaucracy requirements and similar liability protection, but requiring only a peppercorn as starting capital (at least EUR 1, typically at least a few hundreds so that it can actually start operations). The UG will however eventually convert to a GmbH because 25% of profits must be accumulated until the GmbH starting capital is reached.</p>


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<p>Irish Ltds do not have comparable minimal capital requirements, though public companies (PLCs) do. Ireland alternatively allows liability to be limited by a guarantee rather than having to invest money up front for shares.</p>


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Question Body: <p>I've tried googling this, but I'm not sure how to phrase it in a way that would catch the right legal terms.</p>
<p>As I understand it, in some states in the US, a minor (i.e. younger than 18) who is at least 16 years old, can petition the state for emancipation; i.e. legal separation from their parents, and allowed to enter the world as a legal adult, despite being younger than 18.</p>
<p>However, in order to be granted this, the minor must prove that they are capable of supporting themselves financially, that they have somewhere to live, and a few other things.</p>


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<p>However, in order to be granted this, the minor must prove that they are capable of supporting themselves financially, that they have somewhere to live, and a few other things.</p>
<p>My question is about the degree to which an unrelated adult could assist the minor in satisfying these requirements, in order to achieve emancipation. Obviously, the adult could adopt the minor. But, if either party did not want to go with full adoption, could the adult &quot;sponsor&quot; the minor in some way that would satisfy the legal requirements. So, the minor is still an independent legal adult, but has a guaranteed support network just in case.</p>
<p>For example, could the adult sign a contract sponsoring the minor until the age of 18; guaranteeing the minor room &amp; board in the adult's home, and/or will financially subsidize the minor's income up to a certain level if they wish to live on their own, etc.</p>


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<p>Is there a mechanism like this, or is this a custom situation that a judge might approve? or is something like this totally off the table?</p>


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Answer 1: <h3>What is emancipation of a minor?</h3>
<blockquote>
<p>As I understand it, in some states in the US, a minor (i.e. younger
than 18) who is at least 16 years old, can petition the state for
emancipation; i.e. legal separation from their parents, and allowed to
enter the world as a legal adult, despite being younger than 18.</p>
<p>However, in order to be granted this, the minor must prove that they
are capable of supporting themselves financially, that they have
somewhere to live, and a few other things.</p>
</blockquote>
<p>This is true in some places, but not others.</p>
<p>There are two different concepts for emancipation under U.S. law, and most states follow one or the other.</p>


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</blockquote>
<p>This is true in some places, but not others.</p>
<p>There are two different concepts for emancipation under U.S. law, and most states follow one or the other.</p>
<p>One concept is that emancipation is a factual reality that exists when a minor is self-supporting or supported by a spouse or significant other, and not living in the household of a parent. In states that follow this concept, such as Colorado, a court ruling that a minor is emancipated is simply a finding of fact about what is, rather than a grant of permission.</p>
<p>Another concept is that a minor is, as a matter of law, not emancipated until a court grants minor permission to deviate from the status implied by their age. My understanding that this is the concept used in California.</p>


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<p>In these jurisdictions, emancipation is granted only after an good faith attempt to give notice to the parents and a hearing, and involves an assessment of the capacity of the minor to be self-supporting without parental assistance and involvement. The question is focused on this concept, but it is not the only one and it is probably a close call as to which approach is the majority rule in U.S. states.</p>
<p>Even in &quot;permission&quot; states, however, entering military service or marriage usually results in emancipation as a matter of law without any formal court proceeding.</p>
<h3>Common fact patterns</h3>
<p>There are certainly cases in which the fact that a minor is married or living in the household of a significant other as a stay at home parent would establish emancipation.</p>
<p>Another fairly common fact pattern would be a employee whose employer also provides housing.</p>


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<p>Another fairly common fact pattern would be a employee whose employer also provides housing.</p>
<p>Another fairly common fact pattern is a situation in which the whereabouts of the minor's parents are unknown and the minor has, somehow, been managing. Sometimes you see this when a minor's parents die and the minor goes on in an isolated wilderness area, for example.</p>
<h3>Adoption is indeed not an option</h3>
<p>Adoption is not possible without a termination of the rights of the parents (or at least one of them in the case of a stepparent adoption).</p>
<h3>The legal guardianship option</h3>


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<p>Adoption is not possible without a termination of the rights of the parents (or at least one of them in the case of a stepparent adoption).</p>
<h3>The legal guardianship option</h3>
<p>The preferred arrangement when living basically as a child in a supportive adult's household would usually be a guardianship, to the detriment of the parent's role in most decision-making for the minor, rather than emancipation. Here are some quotes from <a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2023/22CA0402-PD.pdf" rel="noreferrer">a recent case from Colorado</a> (<em>In re Interest of A.D.</em>, 2023 COA 6 (January 19, 2023)), with that fact pattern:</p>
<blockquote>
<p>¶ 2 L.D. is the sole living parent of A.D., one of her three children.
A.D. was sixteen at the time of the guardianship proceeding. Although
L.D. and A.D. once shared a healthy relationship, it deteriorated
dramatically during the summer and fall of 2021. This deterioration


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L.D. and A.D. once shared a healthy relationship, it deteriorated
dramatically during the summer and fall of 2021. This deterioration
gave rise to Petitioners’ request for — and the district court’s grant
of — an unlimited guardianship over A.D. We turn to that history now.</p>
<p>¶ 3 In June 2021, A.D.’s car was vandalized while parked in front of
the family home. A.D. and his mother had a heated argument about why
it happened and who was responsible for cleaning it. Upset by this
conversation, A.D. went to stay at his girlfriend’s house. Although he
soon returned home, A.D. ran away from home five more times following
disagreements with L.D.</p>
<p>¶ 4 In early July 2021, L.D. gave A.D. an ultimatum: he could (1) go
to military school, (2) attend therapeutic boarding school, or (3)
abide by her house rules. A.D. ran away again that night, but this 2
time he spent over a month away from home, staying with his
girlfriend, couch surfing at friends’ homes, or sleeping in public


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abide by her house rules. A.D. ran away again that night, but this 2
time he spent over a month away from home, staying with his
girlfriend, couch surfing at friends’ homes, or sleeping in public
parks.</p>
<p>¶ 5 On August 7, 2021, A.D. was taken to the emergency room after
appearing to overdose while partying with friends at a park. The
hospital made a mandatory report to the Department of Human Services
(DHS). Once A.D. was stable, L.D. and V.T. (L.D.’s longtime colleague
and family friend) met with a DHS representative to discuss next
steps. L.D. agreed that, given the hostility between A.D. and herself,
and between A.D. and his two siblings (who both lived with L.D.), it
was in his best interest to stay with Petitioners.</p>
<p>¶ 6 On September 8, 2021, A.D. drove Petitioners’ car to L.D.’s house
for his first night back since early July. When he arrived, L.D.
became extremely upset that he had driven there. In her mind, A.D.’s


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for his first night back since early July. When he arrived, L.D.
became extremely upset that he had driven there. In her mind, A.D.’s
operation of a car — and Petitioners’ facilitation of it — violated
their agreement that he not drive until certain conditions were met.
The next morning, without notice to Petitioners or her son, L.D.
called the Division of Motor Vehicles (DMV) and withdrew her
permission for A.D.’s driver’s license. The DMV revoked his license
the next day.</p>
<p>¶ 7 A.D. became enraged when he learned that his mother had revoked
her consent and subsequently sent a series of angry texts to her. L.D.
then blocked A.D.’s number, thus preventing A.D.’s calls or texts from
coming through to L.D.’s phone (though texts came through on her
computer).</p>
<p>¶ 8 On September 24, 2021, DHS facilitated an “adults only” meeting
with L.D., Petitioners, and DHS representatives. That meeting resulted
in three shared priorities: (1) Petitioners were to provide regular


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with L.D., Petitioners, and DHS representatives. That meeting resulted
in three shared priorities: (1) Petitioners were to provide regular
updates about A.D. to L.D., who would, in turn, communicate with
Petitioners before making decisions affecting A.D.; (2) A.D.’s license
would be reauthorized within thirty days once to-be-defined conditions
were met; and (3) A.D. would be allowed to be on the high school
wrestling team, which all parties agreed was good for him.</p>
<p>¶ 9 Over the next month, Petitioners regularly emailed L.D. updates on
A.D. L.D. provided few, if any, responses to these updates.
Petitioners also sent L.D. a proposed plan for A.D. to get his license
back, but L.D. did not respond.</p>
<p>¶ 10 On October 20, 2021, Petitioners filed their petition for
appointment as A.D.’s guardians. L.D. objected to the petition, sought
dismissal of the action, and requested attorney fees.</p>
<p>¶ 11 On November 8, 2021, Petitioners requested that the court appoint


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dismissal of the action, and requested attorney fees.</p>
<p>¶ 11 On November 8, 2021, Petitioners requested that the court appoint
a guardian ad litem (GAL) to represent A.D.’s interests. Over L.D.’s
objection, the court appointed a GAL pursuant to section 15-14-115,
C.R.S. 2022, after concluding that, owing to their disagreement over
the guardianship, the parties could not represent A.D.’s best interest
in the guardianship proceedings. The GAL represented A.D.’s best
interest throughout the litigation, and the court also instructed the
GAL to provide a report about whether L.D. was “unable to exercise her
parental rights.”</p>
<p>¶ 12 On November 14, 2021, before Petitioners filed their reply, L.D.
— without consulting Petitioners or A.D. — revoked her permission for
A.D. to wrestle the day before the first day of practice. Why she took
this sudden action is unclear: L.D. testified it was because A.D. was
not maintaining passing grades, while another witness testified that


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this sudden action is unclear: L.D. testified it was because A.D. was
not maintaining passing grades, while another witness testified that
she wanted “leverage” over him to participate in family therapy.
Regardless, A.D. was devastated by the timing and nature of this
action.</p>
<p>¶ 13 While these motions were pending, Petitioners continued to care
for A.D. Petitioners asked L.D. for permission to talk to A.D.’s
teachers, coaches, and doctors about how to better care for him. Yet
from August to early December 2021, L.D. refused to grant Petitioners
permission to engage with these individuals. She ignored or outright
refused to allow such communications until December 8, 2021, when,
after repeated requests from a DHS representative, she allowed
Petitioners to attend — but not participate in — a meeting with A.D.’s
teachers.</p>
<p>¶ 14 L.D. also resisted Petitioners’ requests for financial support
for A.D.’s care. To her credit, L.D. provided A.D. with $25 per week


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teachers.</p>
<p>¶ 14 L.D. also resisted Petitioners’ requests for financial support
for A.D.’s care. To her credit, L.D. provided A.D. with $25 per week
for groceries. These funds came from A.D.’s $1,800 monthly
survivorship benefit, which was established following the death of
A.D.’s father when A.D. was three. Petitioners knew the benefit
existed and requested more financial support. L.D. did not respond to
these requests.</p>
<p>¶ 15 Except for the text exchange between L.D. and A.D. following the
revocation of L.D.’s consent for A.D.’s license, L.D. and A.D. never
communicated directly. Instead, all such communications went through
Petitioners or DHS.</p>
<p>¶ 16 Consistent with section 15-14-205(1), C.R.S. 2022, the district
court conducted a hearing on Petitioners’ guardianship motion. The
hearing spanned two days, with both sides calling numerous witnesses.</p>
<p>¶ 17 In a written order, the court granted Petitioners an unlimited


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hearing spanned two days, with both sides calling numerous witnesses.</p>
<p>¶ 17 In a written order, the court granted Petitioners an unlimited
guardianship over A.D. In so doing, the court concluded that
Petitioners had proved by clear and convincing evidence that L.D. was,
consistent with section 15-14-204(2)(c), “unwilling or unable” to care
for A.D. and that the guardianship was in A.D.’s best interest
notwithstanding his mother’s opposition to it.</p>
</blockquote>
<p>The linked appellate court decision then goes on to conduct legal analysis and affirms the trial court's ruling as correct. The official syllabus of the case summarizes that part of the opinion as follows:</p>
<blockquote>
<p>A division of the court of appeals reviews the guardianship
appointment for a minor under section 15-14-204(2)(c), C.R.S.


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<blockquote>
<p>A division of the court of appeals reviews the guardianship
appointment for a minor under section 15-14-204(2)(c), C.R.S.
2022. In so doing, the division adopts the analytical framework outlined in <em><a href="https://casetext.com/case/in-re-bj-22" rel="noreferrer">In re Parental Responsibilities Concerning B.J.</a></em>, 242 P.3d
1128 (Colo. 2010). Applying that framework to section 15-14-
204(2)(c), the division concludes that the moving party must prove, by
clear and convincing evidence, that the parent is (1) “unable or
unwilling” to exercise their parental rights, and (2) the guardianship
is in the best interest of the minor notwithstanding the parent(s)’
opposition to the guardianship. Moreover, in entering such an order,
the court must articulate the “special factors” it relies upon to justify this interference with parental rights. <em>See</em>


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opposition to the guardianship. Moreover, in entering such an order,
the court must articulate the “special factors” it relies upon to justify this interference with parental rights. <em>See</em>
<em>Troxel v. Granville</em>, <a href="https://supreme.justia.com/cases/federal/us/530/57/" rel="noreferrer">530 U.S. 57</a> (2000).</p>
<p>Utilizing that framework
here, the division concludes that the court did not err in appointing
a guardian for the minor.</p>
</blockquote>


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Question Title: Adverse possession between new owners

Question Body: <p>I purchased my property in 2016. My current neighbor purchased his in 2019. The current fence between our properties had been installed some time ago, presumably by the respective previous owners. I want to install a new fence along the correct property line, which would allow me to slightly expand my lot. I had a survey done confirming the location of the property line. Current owner is opposed to moving the fence, since it would disadvantage him. Adverse possession in my area is 15 years. Can the current owner make a successful claim of adverse possession on the fact that the fence likely existing like this for more than 15 years between the <strong>previous owners</strong>?</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>Can the current owner make a successful claim of adverse possession on
the fact that the fence likely existing like this for more than 15
years between the previous owners?</p>
</blockquote>
<p>Yes. This is called &quot;<a href="https://www.nolo.com/legal-encyclopedia/what-continuous-possession-property-means-adverse-possession-claim.html" rel="nofollow noreferrer">tacking</a>&quot;. Everyone in the current owners' chain of title is considered for purposes of an adverse possession period.</p>


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<p>If a preponderance of the evidence (or other burden of proof established under state law which varies from state to state) establishes that the fence is more than fifteen years old when the adverse possession/quiet title lawsuit is commenced, the adverse possession claim will probably prevail.</p>


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Question Body: <p>A general contractor is putting up a large office building for a customer. A sub-contractor is hired to install the dry wall and office doors. The work is essentially complete. More than 90 days has gone by and the sub-contractor has not been paid. The general contractor is close to handing title of the building to the customer.</p>
<p>The credit manager of the sub-contractor is unhappy that his firm has not be yet paid. He
would like to put a lien on the building but 90 days have passed since the work has stopped. He then notices that one of the terms of the contract says that the sub-contractor must deliver a garbage can for the lobby and his firm has failed to do so. So he buys a garbage can and delivers it to the new building. He then places a lien on the building.</p>


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<p>The general contractor's lawyer says that the lien is invalid because more than 90 days have passed. The credit manager says it is because the work was not complete until the garbage can was delivered. Who is right?</p>


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Answer 1: <p>The garbage can probably wouldn't work because it isn't a fixture or part of the property. But the bigger question doesn't have a general answer and has to be determined on a case by case basis by a judge interpreting the language of the mechanic's lien statute in light of experience and the evidence presented.</p>
<p>There are certainly cases where a subcontractor could do some work on a contract, pause work, and then do some more work on the contract, in order to benefit from the later &quot;last work done&quot; for mechanic's lien filing purposes.</p>
<p>The pertinent New Jersey Statute is <a href="https://law.justia.com/codes/new-jersey/2009/title-2a/2a-44a" rel="nofollow noreferrer">here</a>. The statutory section establishing the deadline states, with bolded language limiting the kind of conduct contemplated in the question:</p>
<blockquote>
<p>2A:44A-6.    Filing lien claim</p>


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<blockquote>
<p>2A:44A-6.    Filing lien claim</p>
<p>A lien claim shall be signed, acknowledged and verified by oath of the claimant or, in the case of a partnership or corporation,
a partner or duly authorized officer thereof, and filed with the
county clerk not later than 90 days following the date the last work,
services, material or equipment was provided for which payment is
claimed.  No lien shall attach, or be enforceable under the provisions
of this act and, in the case of a residential construction contract,
compliance with sections 20 and 21 of this act, unless the lien claim
is filed in the form, manner and within the time provided by this
section and section 8 of this act, and a copy thereof served on the
owner and, if any, the contractor and the subcontractor, against whom
the claim is asserted, pursuant to section 7 of this act.</p>
<p>For purposes of this act, <strong>warranty or other service calls, or
other work, materials or equipment provided after completion or


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the claim is asserted, pursuant to section 7 of this act.</p>
<p>For purposes of this act, <strong>warranty or other service calls, or
other work, materials or equipment provided after completion or
termination of a claimant's contract shall not be used to determine
the last day that work, services, material or equipment was
provided.</strong></p>
</blockquote>


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Question Title: I was overpaid by my company in California. Should I return the money?

Question Body: <p>Part of my signed agreement with my employer was that I will receive an extra sum of money for 5 months, but I've been receiving that for a year. Then the HR emailed me saying it's been overlooked by them and that I need to repay the money. My impression was that the extra sum was coming from another salary increase in the new year but it seems like they're right and it's been the original extra payment.
Am I required to return the money in this situation?</p>


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Answer 1: <h2>Yes</h2>
<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" aria-label="show questions tagged &#39;australia&#39;" rel="tag" aria-labelledby="tag-australia-tooltip-container">australia</a></p>
<p>The general common law rule is that you are only entitled to money that you earn through a contract or are given as a gift: a mistaken overpayment is neither.</p>
<p>Your employer is not entitled to take it from your pay unless you agree and they must accept a reasonable repayment plan. If you can’t agree, they can sue you and get a court order to garnishee your wages.</p>


Tags: california, employer, salary


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Question Title: Deduction of relocation payment from last paycheck of terminated employee

Question Body: <p>Can an employer deduct the payment of relocation expenses from the last paycheck of a terminated employee in Illinois?</p>
<p>Assume the employee is being terminated before the time period specified in the contract of employment for the repayment of relocation expenses.</p>


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Answer 1: <p>I've had a couple of employment contracts that involved relocation.
Every contract <em>can</em> be different, but <em>typically</em> they say that the relocation amount must be re-paid if the employee does not stay for a certain period (typically 1 to 2 years).</p>
<p>Often it must be repaid in full up to 1-year, and on a pro-rata basis for the second year.</p>
<p>Obviously, when the recruiter was telling you how awesome the company was, and you were excited to be relocated, they probably did their best to obscure the repayment clauses.  The real question is if they actively <strong>hid</strong> repayment terms from you.  If the repayment terms were not actually spelled out in the paperwork you signed, then you may not be responsible for them, regardless of &quot;company policy&quot;.</p>
<p>If the repayment terms were there in a signed document, but just buried 10 levels deep in fine print that you overlooked, then you may very well be on the hook.</p>


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<p>If the repayment terms were there in a signed document, but just buried 10 levels deep in fine print that you overlooked, then you may very well be on the hook.</p>
<p>Another angle may be that repayment of relocation funds may need to be made in some period (90 days or 6-months, or 1-year).  Since you just got laid off, you can try to demand your full paycheck now, and promise to fulfill the  repayment terms within the period specified.  That won't get you out of repaying the funds, but might buy you some time before you come up with the funds.</p>


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Answer 2: <h2>No</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>Deductions (other than tax) may only be made from an employee’s pay in <a href="https://www.fairwork.gov.au/pay-and-wages/deducting-pay-and-overpayments" rel="nofollow noreferrer">limited circumstances</a>. There’s no point in reiterating what they are, but repayment of relocation expenses are not one of them.</p>
<p>There’s nothing illegal about the arrangement but it can’t be withheld from wages. The employee has to be paid in full and the employee would have a debt due to the employer which could be pursued in the regular fashion.</p>


Tags: employment, illinois


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Question Title: What are some potential legal options when noise ordinances are not enforced for a particular local business (in Texas)?


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Question Body: <p>I live in a mixed use zone in the downtown area of a major metropolitan area in Texas.</p>
<p>A recent city ordinance requires bars and restaurants to maintain noise levels below a certain level at different times of the night.  The exact levels specified for our zone, which is &quot;Commercial/Mixed Use&quot; are:</p>
<ul>
<li>70 dBA or 10 dB above the background noise level, whichever is lower, from 7 AM to 10 PM</li>
<li>60 dBA or 5 dB above the background noise level, which ever is lower, from 10 PM to 7 AM.</li>
<li>5 dB shall be subtracted from the maximum Noise Level where the Noise Level includes &quot;impulsive noise&quot;</li>
<li>The most restrictive maximum Noise Level shall apply at the property where the noise level is audible.</li>
</ul>


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<li>The most restrictive maximum Noise Level shall apply at the property where the noise level is audible.</li>
</ul>
<p>Using different Android applications, I believe that a bar near our apartment is routinely skirting this ordinance by playing music that is audible beyond their property.  I have called the police at various times, but they either can't verify that the business is, in fact, violating the ordinance, or (more frequently) choose not to take any action, or sometimes just don't arrive to investigate in time.</p>


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<p>I understand that Android apps are not a professional instrument, but neither does the ordinance specify the accuracy of whatever is measuring the noise level.  The ordinance in question is <a href="https://content.civicplus.com/api/assets/c2939f92-0d2d-4901-b9f9-e0483bbc3974" rel="nofollow noreferrer">Plano City Ordinance 2021-12-6</a>.  I am considering purchasing professional equipment, but I also don't feel like I should have to bear unreasonable expenses to get some relief from this problem.</p>
<p>What might be my legal options?  Sue the business?  Sue the police?  What sort of evidence might I consider to prepare and what sort of remedies might I request?</p>


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Answer 1: <h2>You have verified nothing</h2>
<p>Your phone is not a calibrated decibel meter operated by a competent acoustic technician (unless you have qualifications you aren’t telling us about).</p>
<p>It’s also clear that you don’t understand what the ordinance says in a technical sense. You have measured “decibels” but you have not explained whether you have measured A, B, or C weighted readings and which of those the ordinance addresses.</p>
<p>Before you engage in any legal process you will need real expert evidence, which you can get by hiring a professional acoustic consultant to conduct a proper noise survey using calibrated equipment in accordance with the requirements of the ordinance.</p>
<h2>What are your legal options?</h2>
<p>If you can verify a breach of the ordinance you have several options:</p>
<ul>


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<h2>What are your legal options?</h2>
<p>If you can verify a breach of the ordinance you have several options:</p>
<ul>
<li>You could sue under the tort of nuisance to recover your losses. The evidence you have will help prove the nuisance but failing to comply with an ordinance does not ipso facto mean that the bar breached any duty of care it has to you. In any event, you would have to prove they owed a duty of care and prove your losses.</li>
<li>You could seek an injunction requiring the bar to comply with the ordinance. However, the ordinance itself may not give you standing to do this.</li>
<li>You could seek a writ of mandamus requiring the person responsible for enforcing the ordinance to do so.</li>
</ul>


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Answer 2: <p>The typical legal option exercised is to request enforcement of the local ordinance. The specific method will vary depending on location, but <a href="https://www.austintexas.gov/page/noise-and-amplified-sound-enforcement" rel="nofollow noreferrer">here</a> is what you do in Austin (&quot;call 311&quot;); in Dallas you could contact <a href="https://d2iofp6jntyrz5.cloudfront.net/index.html" rel="nofollow noreferrer">the Code Compliance Department</a> if they fix the page; in Houston you can read a council member's helpful <a href="https://www.houstontx.gov/council/4/faq.html" rel="nofollow noreferrer">list of suggestions</a> looking for item 15. El Paso police will do <a href="http://legacy.elpasotexas.gov/muni_clerk/agenda/02-26-19/23.1.3.pdf" rel="nofollow noreferrer">this</a> esp. if you call 311, and <a href="https://311.sanantonio.gov/kb/docs/articles/public-safety/noise-complaints" rel="nofollow noreferrer">here</a> is San Antonio's noise-complaint page.</p>


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<p>You can't sue the police. You can't sue the city council for not passing a tougher law. You might be able to sue the business if they have actually caused you damage, but you would have to prove unreasonable noise, that the business caused it, that it disturbed your quiet enjoyment of your home, and you have asked them to be quieter but they did nothing.</p>


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Answer 3: <p>Your question doesn't specify, but I would encourage you to ensure your measurements are at locations specified by the ordinance. And if the ordinance doesn't specify, that might be a manner by which to make this ordinance look nice on paper, but infeasible to enforce.</p>
<p>In New Jersey, the State has NJAC 7:29 which is the Noise Control Regulation and it is almost never enforced excepting for industrial uses who have sufficient funds to actually comply with it. Per NJAC 7:29, uses cannot generate noise levels in excess of 65 dBA during the day (defined as 7 am to 10 pm) and 50 dBA at night (defined as 10 pm to 7 am). The measure for the daytime is at a residential property line and the nighttime measure is at a residential building footprint.</p>


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<p>For a project I worked on recently, just the ambient noise of the nearby highway was enough to notably exceed these thresholds per the team's acoustics consultant. Frankly, a passenger car driving in front of your house would exceed the threshold as it's estimated to be 65 dBA from 50 feet away.</p>
<p>So what can you do? In general, this issue has to be handled by Code Enforcement.</p>


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<p>So what can you do? In general, this issue has to be handled by Code Enforcement.</p>
<p>However, be aware, such an issue can be tricky to address for a township. The project I referenced earlier was for a large warehouse project and thus had sufficient funds to conform with the noise ordinance requirements via the construction of some very large sound walls (&gt;$1M). Such an expense is not going to be viable for something like an Applebees. Also, you probably don't want to see a large sound wall instead of people eating dinner. I've never worked on any other jobs which required sound walls, even one that involved a small trucking facility. Municipalities are often loathe to enforce extremely costly mitigation measures like these, even if required by law, as it drives away commercial business.</p>


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<p>But the most effective legal option for you might be to just go over and talk to them, ideally with a solution that would be acceptable to you. I say the latter because such a complaint seems rather petty if you could just close your window. Perhaps they could have patrons come inside the building after 10 pm. If there's a house band, perhaps you could ask them to wrap it up at 10 pm.</p>


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Question Title: Why wasn&#39;t Trump criminally charged for sexually assaulting E. Jean Carroll?

Question Body: <p>E. Jean Carroll has sued Donald Trump for battery. But battery is also a crime. Is anything known, or can we make any reasonable inferences, about why New York State hasn't charged him for battery?</p>


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Answer 1: <p>E. Jean Carroll first sued Donald Trump in 2019 for defamation in connection with his statements in 2019 denying a prior assault upon her in the 1990s in response to her 2019 memoire asserted that he had done so in the 1990s. The statute of limitations in that case ran from the time that Trump made the statement. The first lawsuit is still pending because of issues over whether Presidential immunity from lawsuits applies to it:</p>
<blockquote>
<p>The Justice Department has argued Trump was acting as the president
while responding to Carroll’s allegations and said the United States,
rather than Trump himself, should be the defendant. If the courts
agree, it would probably torpedo Carroll’s claim because the
government cannot be sued for defamation.</p>
<p>The issue remains unresolved. The D.C. Court of Appeals heard
arguments on the case but essentially punted on the issue this month,
sending it to another court.</p>
</blockquote>


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<p>The issue remains unresolved. The D.C. Court of Appeals heard
arguments on the case but essentially punted on the issue this month,
sending it to another court.</p>
</blockquote>
<p>The criminal statute of limitations on this underlying conduct in the 1990s expired long before the lawsuit was filed. She did not press criminal charges at the time.</p>
<blockquote>
<p>Last year [i.e in 2022], Carroll filed a second lawsuit, this one
accusing Trump of battery and defaming her again after he left office.
That lawsuit, filed in the U.S. District Court for the Southern
District of New York, is the one scheduled to go to trial on Tuesday
[i.e. last week]. The suit was filed in November 2022 as a New York
law known as the <a href="https://en.wikipedia.org/wiki/Adult_Survivors_Act" rel="nofollow noreferrer">Adult Survivors Act</a> took effect. That law
allowed sexual assault victims to sue years later, which proponents
said was necessary because it can take considerable time for survivors


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allowed sexual assault victims to sue years later, which proponents
said was necessary because it can take considerable time for survivors
to feel ready to speak out.</p>
</blockquote>
<p>All of the factual statements in this answer, including all quotes material, are from an April 24, 2023 article in the <a href="https://www.washingtonpost.com/national-security/2023/04/24/e-jean-carroll-trump-rape-trial/?itid=ap_markberman" rel="nofollow noreferrer">Washington Post</a>.</p>
<p>As a practical matter, a final resolution of the second lawsuit will resolve essentially all issues in the first lawsuit except Presidential immunity (and arguably a slight amount of damages), under the doctrine of collateral estoppel (a.k.a. issue preclusion). A defense verdict from the jury in the pending case would render the Presidential immunity issue in the first case moot.</p>


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<p>Sources including <a href="https://today.westlaw.com/Document/I3b97cf141ce011ed9f24ec7b211d8087/View/FullText.html?transitionType=CategoryPageItem&amp;contextData=(sc.Default)&amp;firstPage=true" rel="nofollow noreferrer">this one</a> have concluded that the Adult Survivors Act (ASA) is likely to withstand a constitutional challenge. This is because a similar law passed on 2019, the Child Victims Act (CVA), was upheld as constitutional. The ruling in the CVA cases, in turn, relied heavily on a 9-11 related statute of limitations revival act which was upheld by New York State's highest court in 2017:</p>
<blockquote>
<p>Shortly after the passage of the CVA, lawsuits were filed with the
state and federal courts of New York arguing that the CVA was
unconstitutional under the Due Process Clause. Decisions have been
rendered in state and federal courts holding that the CVA was
constitutional.</p>
<p>Both courts relied on the legal standard enumerated by the <em>In re


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rendered in state and federal courts holding that the CVA was
constitutional.</p>
<p>Both courts relied on the legal standard enumerated by the <em>In re
World Trade Ctr. Lower Manhattan Disaster Site Litig.</em>, <a href="https://www.leagle.com/decision/innyco20171121360" rel="nofollow noreferrer">30 N.Y.3d
377</a>, 400 (2017). which established that for a revival statute to
be deemed constitutional under the Due Process Clause, there must
exist an identifiable injustice that moved the Legislature to act,&quot;
and second, &quot;in each case, the Legislature's revival of the
plaintiff's claims for a limited period of time was reasonable in
light of that injustice.&quot;</p>
</blockquote>


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Answer 2: <p><a href="https://www.thecut.com/2019/06/donald-trump-assault-e-jean-carroll-other-hideous-men.html" rel="nofollow noreferrer">In a New York Magazine article published in June 2019</a>, Carroll claimed the event occurred &quot;in the fall of 1995 or the spring of 1996&quot; - more than twenty years prior.</p>
<p>She claimed she did not report the event to the police.</p>
<p>At the time, the criminal statute of limitations on such accusations was five years.</p>
<p>If New York's authorities were not aware of it, that explains why Trump wasn't charged at the time or within the five years before the allegation became time-barred.</p>
<p>In June 2006 New York changed the law but the change did not retroactively apply to alleged crimes committed before 2006.</p>


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<p>In June 2006 New York changed the law but the change did not retroactively apply to alleged crimes committed before 2006.</p>
<p>Carroll could make a civil claim because of <a href="https://legislation.nysenate.gov/pdf/bills/2021/S66A" rel="nofollow noreferrer">the Adult Survivor's Act</a> which amended the civil statute of limitations to allow &quot;alleged victims of sexual offenses such as sexual assault and unwanted sexual contact in the workplace to file civil suits between November 24, 2022, and November 24, 2023&quot; (<a href="https://en.wikipedia.org/wiki/Adult_Survivors_Act" rel="nofollow noreferrer">Wikipedia</a>).</p>


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Question Title: Is it considered a breach of confidentiality if data is uploaded to a website which only makes that data available to the uploader?


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Question Body: <p>I'm a developer working at a company that handles sensitive banking information and recently, I've had troubles organising my code and thus posted it in a private repository on Github, which only I can access in any way.</p>
<p>A week later, I got a notice from management to delete everything and a general aura of &quot;you messed up&quot; is hanging around me. The only information I'm getting at the moment is &quot;check your contract&quot; which says the following:</p>
<blockquote>
<p>§ 8 Confidentiality</p>
<p>The Employee agrees to keep confidentially any business and trade secrets as well as operational matters
of a confidential nature which are
designated as such by the management in writing or orally or which are
apparently recognisable as such, not
to make them available to any third
parties without the prior approval of
the management, and to protect
them against unauthorized access.
This obligation shall continue even


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to make them available to any third
parties without the prior approval of
the management, and to protect
them against unauthorized access.
This obligation shall continue even
beyond the termination of the employment.</p>
</blockquote>
<p>To the best of my knowledge, I have respected said clause since I have not made it available to anyone but me. I'm just an intern freshly out of school so I might not fully grasp the details of this.</p>
<p>Would uploading the code to GitHub count as making it available to a third party?</p>
<p>EDIT : With hindsight, I was totally in the wrong. The code itself was Python/SQL scripts for data analysis and collection but no credentials were stored. While it wasn't a security breach since even with those no data could be accessed, it was not acceptable to store &quot;company owned&quot; code on a 3rd party. We are using Git internally now, so all is well.</p>


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Answer 1: <p><em>Assuming none of these terms are defined elsewhere in the contract</em>:</p>
<p>A <a href="https://www.law.cornell.edu/wex/third_party" rel="noreferrer">third party</a> is a party (a person or company) that is neither you nor the other party to the contract (here, presumably the company that hired you).</p>
<p>Since GitHub is neither you nor the company, it would therefore be a third party, and thus it would in fact violate that contract as written to upload the company's code there.  Keep in mind that GitHub is not an autonomous system with no humans involved; it's run by a company of people, many of whom could theoretically access the code in private repositories.</p>
<hr />


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<hr />
<p>That said, from a practical standpoint, most companies aren't going to fire someone for a mistake made in good faith, especially if actual disclosure to any humans is rather unlikely.  However, do remember that we don't know the company's rules, what training you may have received, what exactly you uploaded, or what regulatory/contractual rules they must comply with.</p>
<p>Any of that <em>could</em> affect their decision-making, so you should take this as a general answer and use your own judgement when applying it to your situation.</p>


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Answer 2: <p>As others have pointed out, you shared your code with a third party without getting the explicit okay from management. It doesn't matter what their stated policies are, you didn't give management the opportunity to review that policy first. Give that the company:</p>
<blockquote>
<p>handles sensitive banking information</p>
</blockquote>
<p>it's highly likely they would insist that their legal team vet any such policy along with discussions at the executive level before even okaying the use of an external repository.</p>
<p>Financial data is governed by very, very strict laws at the federal level and any risk to that data (including the unauthorized release of source code for platforms that manage it) is a reason for real concern. It affects trust relationships with clients as well as inviting extra scrutiny from the government up to and including an audit.</p>


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<p>Depending on what the code does, there's risk of exposure of confidential information embodied in the code as algorithms and numeric data related to those algorithms. That may be owned by the company you work for or it's clients depending on whether or not they do custom work for individual clients.</p>
<p>Consider yourself as very lucky your job has survived this to this point. That may change depending on the full evaluation of the risks associated with what happened.</p>
<p>In the future, I recommend you ask a more senior developer for advice on how to accomplish your goals in a way that fits company culture as well as your technical needs. That should be a very well understood part of their role - to provide mentoring to junior employees.</p>


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Answer 3: <p>In addition to the discovery that GitHub IS A THIRD PARTY in your setup (detailed in the other answers), there are some additional considerations in this regard:</p>
<ul>
<li>GitHub is not immune to <a href="https://portswigger.net/daily-swig/github-offers-post-mortem-on-recent-security-breach" rel="noreferrer">breaches</a>. It is not that anyone really is. In a case of breach, the third parties multiply by a great number.</li>
<li>Even if you delete the code from GitHub, chances are that it is also copied to backups, transaction logs and various other data handling mechanisms that could allow its retrieval at a later date. Law enforcement actions, backup restores, internal audits, software bugs, etc, etc... can expose whatever you deleted at any moment in the future.</li>
</ul>
<p>how about</p>
<blockquote>
<p>This obligation shall continue even beyond the termination of the employment.</p>
</blockquote>


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</ul>
<p>how about</p>
<blockquote>
<p>This obligation shall continue even beyond the termination of the employment.</p>
</blockquote>
<p>p.s. These things are considered basic knowledge in any security-sensitive environment, including, but not limited to, finances, military or government institutions.</p>


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Answer 4: <p>Your data is now on a website owned by a third party, stored on the servers of a third party. If I did that at my current or at my previous company, I’d actually expect my contract to be finished.</p>
<p>You claim that the data can only be accessed by you. That is unlikely to be true. GitHub can access your data, most likely. Police with a warrant can access it. Hackers may be able access it. And it’s you putting the data at risk.</p>
<p>There might be massive legal risks for your company. Allowing you to do what you did might actually be illegal. My previous company would have been in trouble if customers found out; the current one only wants its own secrets to stay secret.</p>
<p>All in all, what you did could easily and legally get you fired instantly.</p>


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Answer 5: <p>The best option is to reach out to your mentors/ senior developers and ask them what they do / what the policy is.  At our org (healthcare - so PHI issues) we publish to a Azure based git system (sorry this is not the right wording exactly - but we publish to an institution wide git system basically).  The major thing for US is - is patient information exposed, or trade secrets.  In my case the answer is no, so I could publish externally if I wanted to, but I did the right thing and reached out to infosec and asked.</p>


Tags: contract-law, software, legal-terms, germany


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Question Title: Is there any merit in continuing to fight a trial despite an overwhelming chance of losing and there being no plea deal?

Question Body: <p>For example, if the evidence is overwhelmingly against them and the defendant knows they are guilty and there is no chance for a lesser sentence or a plea deal (happens in certain jurisdictions), is there still any merit to continuing with a trial?</p>


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Answer 1: <p>Yes.</p>
<p>Juries aren't terribly accurate. There is an irreducible chance that no matter how clear the outcome should be that the jury will get it wrong. Based upon a review of the academic literature on wrongful convictions and inaccurate acquittals, I generally tell my clients that this is about 10%. Many people think that this is a low end estimate.</p>
<p>Also, sometimes a jury will acquit a defendant in a case where they think that the defendant was actually legally guilty because of extraordinary circumstances, and so the jury will disregard the law and acquit. This practice is called &quot;jury nullification.&quot;</p>
<p>And, as other answers have noted, sometimes the prosecution or the judicial system screws up for reasons that are unforeseeable, after a not guilty plea, in a way that makes proving your guilt difficult or impossible.</p>


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<p>Basically, if you &quot;roll the dice&quot; there is some non-zero chance you will be acquitted, while if you plead guilty, there is none.</p>
<p>Also, sometimes court decisions will change the law in way favorable to you after the trial, and as long as your case is still on direct appeal from the conviction, you can benefit from those changes in the law, which you cannot if you simply plead guilty without any concessions.</p>
<p>Likewise, if you are innocent and the evidence is currently strongly against you, but you wish to preserve the ability to later attack the conviction based upon future newly discovered evidence, not pleading guilty is generally necessary to preserve that option.</p>


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<p>Another circumstance where going to trial but losing can still be worth it, is where there are extenuating circumstances that make your conduct understandable, even if it is not a legally valid defense. Getting these facts in front of the judge in a fuller fashion, as a trial can make possible, can convince the judge that while you are legally guilty, that you deserve leniency.</p>
<p>Going to trial typically results in a longer sentence, even without a plea bargain, however, so going forward with a hopeless trial is rarely a good move.</p>


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Answer 2: <p>The defendant cannot be sure that the evidence will leave the trier of fact (judge or jury) with no reasonable doubt that the defendant committed the crime. Thus, the defendant can only &quot;know&quot; they are 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 prosecution'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>
<p>A person might simply desire to exercise their right to force the prosecution to prove their case. This can have important benefits to the accused's sense of dignity.</p>


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Answer 3: <p>In the English legal system you get a <a href="https://www.defence-barrister.co.uk/pleading-guilty-part-2#:%7E:text=If%20you%20plead%20guilty%20or,were%20found%20guilty%20at%20trial." rel="noreferrer">small bonus for pleading guilty early</a>. Since that might equate (in a murder trial) to less than a few months of additional jail time after a potential sentence of decades, it's often advantageous to go to trial and hope to win, despite the long odd of doing so, rather than pleading guilty.</p>


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<p><strong>Anecdote time.</strong> I saw a case in court a few months ago where the defendant had admitted during interview that he had stabbed someone in a bar fight, with the fight itself being captured on CCTV. The prosecution lost the interview recording in their computer system (along with the footage) and were relying on the interviewing officer and the victim to testify. When they failed to turn up, the CPS asked for a stay while their IT guys recovered the footage. As there had already been four delays the judge ended the trial and acquitted the defendant. The guiltiest man in history walked out of there a free man.</p>


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Question Body: <p>According to the 14th Amendment of the US Constitution,</p>
<blockquote>
<p>All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.</p>
</blockquote>
<p>I have questions concerning the latter type of citizenship (i.e., citizenship of a particular US state, not citizenship of the United States as a whole).  I suppose that the issue of state citizenship comes into play when someone wants to exercise certain state-specific rights (e.g., voting in state elections) and possibly also when the state imposes obligations (e.g., if a state, like the federal government, wants to impose income tax on its own citizens regardless of their residence).</p>


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<p>A plain reading of the 14th Amendment clause makes it clear that state citizenship is acquired by residence.  But the wording doesn't preclude the possibility of state citizenship being acquired by other means.  Are there any other circumstances under which state citizenship may be acquired?  Is it up to each individual state, or are there federal laws that come into play?  Even if it's up to each individual state, do most of them at least apply the same general rules?</p>


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<p>For example, do any states offer citizenship by descent (jus sanguinis) to persons who are residents of other states but who are the children and/or descendants of a state citizen? Do any states offer citizenship by place of birth (jus soli) to persons born in the state but who have since moved away? Do any states offer naturalization processes to become state citizens that do not require them to be residents? Is there any precedent for US citizens to have dual or multiple citizenship among the various states (e.g. dual citizen of NJ and NY, or citizen of TX by birth, OK and KS by descent, AZ by naturalization, and LA by residence)?</p>


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<p>The clause also says nothing about loss of state citizenship.  Again, is it up to each individual state when citizenship is lost, or does it always happen automatically when a citizen takes up residence in a new state?  I'm particularly interested to know whether it's possible for a person to hold multiple state citizenships simultaneously, and whether it's possible for a person to retain their state citizenship if they move to a new country (as opposed to moving to a new state within the US).</p>


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Answer 1: <p>Citizenship in a U.S. state is governed primarily by the first sentence of Section 1 of the 14th Amendment to the United States Constitution, which states (emphasis added):</p>
<blockquote>
<p>All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States <strong>and of
the State wherein they reside.</strong></p>
</blockquote>
<p>So, in the case of a natural person who is a U.S. citizen, the state in which you are domiciled is the state in which you are a citizen.</p>
<blockquote>
<p>The clause also says nothing about loss of state citizenship. Again,
is it up to each individual state when citizenship is lost, or does it
always happen automatically when a citizen takes up residence in a new
state? I'm particularly interested to know whether it's possible for a
person to hold multiple state citizenships simultaneously, and whether
it's possible for a person to retain their state citizenship if they


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person to hold multiple state citizenships simultaneously, and whether
it's possible for a person to retain their state citizenship if they
move to a new country (as opposed to moving to a new state within the
US).</p>
</blockquote>
<p>The notion of domicile or residence is singular in the case of a natural person. When you become a resident of a new state, you cease to be a resident of the old state, unless some other specific law applies. It is not generally possible for a natural person to hold multiple state citizenships simultaneous (in theory), and if a person is domiciled outside any U.S. state (e.g. if they are domiciled in the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, or France), they are not a citizen of any U.S. state.</p>


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<p>Common law domicile, which is relevant for constitutional law purposes, can be changes in a single day, not particular period of residence is required. If you leave your home in say, Georgia, and move into an apartment in say, Ohio with an intent to remain in Ohio indefinitely, your domicile switches to an Ohio domicile immediately.</p>


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<p>Common law domicile is generally what would control for diversity of citizenship jurisdiction purposes under 28 U.S. Code § 1332 and Article III of the United States Constitution. However, even though the U.S. Constitution clearly authorizes Congress to extent diversity of citizenship jurisdiction granting access to the federal courts to every lawsuit to which a non-U.S. citizen that resides in a state and a U.S. citizen that resides in a state, I do not know from memory if 28 U.S. Code § 1332 has been interpreted to have that effect in cases where the amount in controversy exceeds the statutory required $75,000, or if instead, a lawsuit between a non-citizens who reside in the same state as a U.S. citizen resident of a state is not subject to diversity jurisdiction in federal court pursuant to 28 U.S. Code § 1332 (diversity jurisdiction is concurred and not exclusive, so if someone tries a case in state court when diversity jurisdiction would have been available without trying to


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to 28 U.S. Code § 1332 (diversity jurisdiction is concurred and not exclusive, so if someone tries a case in state court when diversity jurisdiction would have been available without trying to remove it to federal court, the state court still has full jurisdiction over the case).</p>


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<p>This said, some state and local laws, and even some federal laws, create rights and obligations that arise from residency defined in a manner other than the constitutionally provided notion of state citizenship under Section 1 of the 14th Amendment, and there is both state and federal law governing the deemed citizenship of legal persons other than &quot;natural persons&quot; such as corporations and partnerships.</p>


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<p>For example, under the Uniform Child Custody Jurisdiction Act (a model law enacted as state law in every U.S. state) and Parental Kidnapping Protection Act, and a treaty governing international child custody cases, for purposes of child custody jurisdiction there is a definition of a concept called the &quot;home state&quot; of a child, which differs materially from the common law definition of the domicile of a child which previously informed jurisdiction in child custody cases. The statutory definitions aren't identical, but basically look back about six months from the present, rather than looking at the current instant only, to determine where a child resides for purposes of child custody jurisdiction.</p>


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<p>Under state and federal law respectively, there are certain changes in <em>de facto</em> place of residence that do not change legal domicile for purposes of eligibility to vote in federal, state, and local elections. Soldiers deployed away from the military base that is established as their home, e.g., in a foreign war or military base, remain citizens of the state where their home is even though they don't reside there on a day to day basis.</p>
<p>Students living in dormitories away from their parents' home only sometimes acquire a domicile and citizenship in the state where their dormitory is located - almost never in the case of an economically dependent minor present in another state with parental permission, and mostly based upon the subjective intent of the student in the case of a college student.</p>


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<p>Usually, prison inmates continue to be citizens of the state where they were domiciled at the time they were sentenced, even if they are housed in another state on a contract basis, or are convicted of a crime in a state where they did not reside at the time.</p>
<p>Historically, married women were, as a matter of law, deemed to be domiciled and to be state citizens of the state where her husband resided, but that rule has been abrogated. Now, the state citizenship and state of residence of married women is determined independently of the state citizenship and state of residence of her spouse.</p>
<p>Despite the common law rule, states have rather elaborate operational definitions of state residence for different purposes.</p>
<p>For voting in state and local elections, a residency period of thirty-days or so has been tolerated as a historical administrative necessity. Similarly state residency periods for eligibility to get divorced in a state are similar.</p>


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<p>State residency rules for purposes of in-state tuition, hunting and fishing license fees, park entrance fees, and the like, vary considerably, and the U.S. Supreme Court has largely chosen to rule that the privileges and immunities clauses of the U.S. Constitution and the 14th Amendment do not apply to these cases.</p>
<p>The privileges and immunities clauses became mostly a dead letter in U.S. Constitutional law as a result of the <em>Slaughterhouse Cases</em>, 83 US 36 (1873), in which judges seeking to limit the effect of the 13th and 14th Amendments passed in the wake of the U.S. Civil War interpreted them in a manner that gave them only a narrow effect.</p>
<p>And, unlike <em>Plessy v. Ferguson</em>, the U.S. Supreme Court ruling that authorized the segregated Jim Crow regime in the former slave states until it was overruled by <em>Brown v. Board of Education</em>, the <em>Slaughterhouse Cases</em> largely remain good law.</p>


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<p>It is largely because of a line of cases that started with the <em><a href="https://www.oyez.org/cases/1850-1900/83us36" rel="nofollow noreferrer">Slaugherhouse Cases</a></em> that very few rights and duties are defined as incident to either United States citizenship or state citizenship, rather than to state defined residency for a particular purpose or being a &quot;person&quot;, which, in turn, has made state citizenship such a limited concept that many civically well educated people do not even know that it exists.</p>
<p>The <em>Slaughterhouse cases</em> also caused the federal constitutional individual rights jurisprudence that incorporates these rights against state and local governments to develop mostly under the due process and equal protection clauses of the 14th Amendment, rather than its privileges and immunities protections.</p>


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<p>States are not permitted to limit admission to a licensed profession or occupation in the state to state residents only under the privileges and immunities clause, but can somewhat vary the rules that apply to state residents v. people who are not state residents.</p>
<p>For state income tax purposes, a majority of nights residing in a state normally controls in a simple two-state case. Some states are in interstate compacts (i.e. Congressionally approved interstate treaties) with each other about how income is allocated when a person resides in multiple states during the course of a tax year.</p>
<blockquote>
<p>But the wording doesn't preclude the possibility of state citizenship
being acquired by other means. Are there any other circumstances under
which state citizenship may be acquired? Is it up to each individual
state, or are there federal laws that come into play? Even if it's up
to each individual state, do most of them at least apply the same
general rules?</p>


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state, or are there federal laws that come into play? Even if it's up
to each individual state, do most of them at least apply the same
general rules?</p>
</blockquote>
<p>Many state and local government afford privileges usually only afforded to state citizens to state residents who are not U.S. citizens. This case include, most famously in the case of New York City local elections and in elections to special districts where property owners are entitled to vote, a right to vote in local elections that is afforded to people who are not U.S. citizens (federal law prohibits this in federal elections).</p>


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<p>Sometimes this is in the discretion of the state or local government. But, since immigration and naturalization law is vested solely and exclusive in the federal government under the U.S. Constitution, there are many circumstances in which non-citizen residents of a state or local government must be treated identically to citizen residents of a state or local government outside the few areas where federal immigration laws authorize a distinction and outside of the few areas where the benefits or privilege or obligation is expressly tied to citizenship as opposed to residency (e.g. jury duty).</p>
<p><strong>Footnote on the <em>Slaughterhouse Cases</em></strong></p>
<p>The following summary is from the link above:</p>
<blockquote>
<p>Facts of the case</p>
<p>Louisiana passed a law that restricted slaughterhouse operations in
New Orleans to a single corporation. Pursuant to the law, the Crescent
City Live-stock Landing and Slaughter-House Company received a charter


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New Orleans to a single corporation. Pursuant to the law, the Crescent
City Live-stock Landing and Slaughter-House Company received a charter
to run a slaughterhouse downstream from the city. No other areas
around the city were permitted for slaughtering animals over the next
25 years, and existing slaughterhouses would be closed. A group of
butchers argued that they would lose their right to practice their
trade and earn a livelihood under the monopoly. Specifically, they
argued the monopoly created involuntary servitude in violation of the
Thirteenth Amendment, and abridged privileges or immunities, denied
equal protection of the laws, and deprived them of liberty and
property without due process of law in violation of the Fourteenth
Amendment.</p>
<p>Question</p>
<p>Did the creation of the monopoly violate the Thirteenth and Fourteenth
Amendments?</p>
<p>Conclusion</p>
<p>5–4 DECISION FOR VARIOUS MAJORITY OPINION BY SAMUEL F. MILLER</p>


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<p>Question</p>
<p>Did the creation of the monopoly violate the Thirteenth and Fourteenth
Amendments?</p>
<p>Conclusion</p>
<p>5–4 DECISION FOR VARIOUS MAJORITY OPINION BY SAMUEL F. MILLER</p>
<p>The Privileges and Immunities Clause of the Fourteenth Amendment
applies to national citizenship, not to state citizenship.</p>
<p>The Court held that the monopoly violated neither the Thirteenth or
Fourteenth Amendments, reasoning that <strong>these amendments were passed
with the narrow intent to grant full equality to former slaves. Thus,
to the Court, the Fourteenth Amendment only banned the states from
depriving blacks of equal rights; it did not guarantee that all
citizens, regardless of race, should receive equal economic privileges
by the state. Any rights guaranteed by the Privileges or Immunities
Clause were limited to areas controlled by the federal government,
such as access to ports and waterways, the right to run for federal


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Clause were limited to areas controlled by the federal government,
such as access to ports and waterways, the right to run for federal
office, and certain rights affecting safety on the seas.</strong> Moreover,
the Court held that the butchers bringing suit were not deprived of
their property without due process of law because they could still
earn a legal living in the area by slaughtering on the Crescent City
Company grounds. Thus, the Court concluded that the Louisiana law was
constitutional.</p>
<p>Justice Stephen Johnson Field’s dissent argued that the Fourteenth
Amendment could not be construed as only protecting former slaves.
Rather, he believed that it incorporated strands of common-law
doctrine and needed to be interpreted outside the Civil War context.
This position would later become widely accepted.</p>
</blockquote>
<p>Later cases would also interpret U.S. Constitution, Art IV §2 Cl. 1, which states that:</p>
<blockquote>


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This position would later become widely accepted.</p>
</blockquote>
<p>Later cases would also interpret U.S. Constitution, Art IV §2 Cl. 1, which states that:</p>
<blockquote>
<p>The citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states.</p>
</blockquote>
<p>very narrowly, following the lead of the <em>Slaughterhouse cases</em>, mostly by holding that particular privileges and immunities other than a narrow core handful of state law rights and privileges and duties, were not associated with state citizenship <em>per se</em>.</p>


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Answer 2: <p>Art. II §2 cl. 1 of the Constitution says</p>
<blockquote>
<p>The judicial power shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States, and
treaties made, or which shall be made, under their
authority..--between a state and citizens of another state;--between
citizens of different states;--between citizens of the same state
claiming lands under grants of different states, and between a state,
or the citizens thereof, and foreign states, citizens or subjects.</p>
</blockquote>
<p>Art IV §2 Cl. 1 holds that</p>
<blockquote>
<p>The citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states.</p>
</blockquote>
<p>The 11th Amendment states:</p>
<blockquote>
<p>The judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the United States by citizens of another state, or by citizens


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extend to any suit in law or equity, commenced or prosecuted against
one of the United States by citizens of another state, or by citizens
or subjects of any foreign state.</p>
</blockquote>
<p>The Constitution in its original state doesn't say how one becomes a citizen, which resulted in substantial controversy and the Dred Scott decision (he was declared to be not a citizen of any state). The Fourteenth Amendment eliminated some of the controversy though the sentence &quot;All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside&quot;.</p>


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<p>To be a citizen of a state, you must first be born or naturalized in the United States (and subject to US jurisdiction, thus not an ambassador's offspring); or, you may be a citizen under federal statute depending on the citizenship of your parents (this is covered under sections <a href="https://www.uscis.gov/policy-manual/volume-12-part-h-chapter-3" rel="nofollow noreferrer">301, 309 of the Immigration and Naturalization Act</a>). Second, you must reside in some state – you gain Idaho citizenship by moving to and residing in Idaho, and you lose it by moving to and gaining residence in Washington. This kicks the can down the road by deferring the matter to a determination of residency. States respond by multiplying the number of cans, since &quot;residency&quot; is treated as a cluster of requirements. E.g. college tuition, in-state fishing license, welfare, public housing, voting, drivers license. SCOTUS has ruled (individually) on many of these requirements, but has never


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cluster of requirements. E.g. college tuition, in-state fishing license, welfare, public housing, voting, drivers license. SCOTUS has ruled (individually) on many of these requirements, but has never reached a unified theory of allowed residency requirements. However, when speaking of &quot;fundamental rights&quot;, any restrictions on residency would be subject to strict scrutiny, thus voting could not be limited to those who have been resident for two years (but: being a candidate for office can be subject a long residence requirement, see Oregon's Article V, § 2 requirement for 3 year residence to be eligible to hold the office of governor except through succession).</p>


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Answer 3: <p>State citizenship exists and is referred to in the Constitution and its amendments. For example, Article III gives the Supreme Court (or the federal judiciary in general) jurisdiction over a number of cases based on the state citizenship of parties:</p>
<blockquote>
<p><strong>Section 2</strong> ... The judicial power shall extend ... to controversies between two or more states; between a state and <strong>citizens of another state</strong>; between <strong>citizens of different states</strong>; between <strong>citizens of the same state</strong> claiming lands under grants of different states, and between a state, <strong>or the citizens thereof</strong>, and foreign states, citizens or subjects.</p>
</blockquote>
<p>Applied to the federal judiciary, these cases are often referred to as &quot;diversity of citizenship&quot;, as codified in <a href="https://www.law.cornell.edu/uscode/text/28/1332" rel="nofollow noreferrer">28 U.S. Code § 1332</a>.</p>


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<p>Such citizenship of a state for a natural person, for the purposes of the federal Constitution, is determined by domicile, that is, a relatively fixed and permanent place of abode.</p>
<p>For example, in <a href="https://casetext.com/case/chicago-northwestern-ry-co-v-ohle" rel="nofollow noreferrer">Chicago &amp; Northwestern Railway Co. v. Ohle (1886)</a>, the following jury instruction was upheld.</p>
<blockquote>
<p>Now, it is contended on the part of the defendant that he did not acquire citizenship in Chicago until he went there in March, 1884, after he had completed his schooling in Janesville. Now, if he did not, <strong>if that was the first time that he actually went to Chicago <em>with the intent to remain there and take up his citizenship and his residence there</em>, why then you would have to find that that was the time that he lost his citizenship in Iowa and acquired it in Illinois.</strong> ...</p>
</blockquote>


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</blockquote>
<p>For the purposes of the U.S. Constitution (with respect to e.g. the diversity requirement for federal judicial jurisdiction), the citizenship of a state is lost when the person no longer considers that state their home.</p>
<p>I don't think anything prevents a state to recognize &quot;citizens&quot; with various benefits and privileges within their own limits and law. A state could for example allow foreigners to vote in  a state election. However, once a federal law or the U.S. constitution is engaged, it is unlikely that the state has much power to affect the definition of citizenship applied by those laws. For example, a State is likely unable to prevent federal diversity jurisdiction simply by declaring the other party its citizen.</p>
<p>Of course, unlike the U.S. citizenship, it is essentially meaningless outside the U.S. and most of the times citizenship would mean a citizenship or nationality of a fully sovereign state.</p>


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Question Body: <p>Lets say hypothetically I got married and had a child. Five years later my wife sleeps with  several other men but I don't have proof of this. I wish to attempt to gain full custody of the child, avoid paying child support payments, and avoid paying alimony.</p>
<p>So, I have all my assets signed over my brother and all my income goes to my brother. Then, when I need money I request money from time to time from my brother.</p>
<p>Is this legal in the United States, in New York State for example? How then would child support, if any, be distributed?</p>


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<p>Is this legal in the United States, in New York State for example? How then would child support, if any, be distributed?</p>
<p>This hypothetical case is inspired by and similar to the one mentioned in <a href="https://hudsonreporter.com/2023/04/19/achraf-hakimis-ex-wife-denied-share-of-fortune-as-football-stars-assets-found-in-mothers-name/#:%7E:text=Hakimi%27s%20decision%20to%20register%20all,in%20Madrid%20to%20Tunisian%20immigrants" rel="nofollow noreferrer">an article</a> in the <em>Hudson Reporter</em> discussing a divorce of a sports star in Spain who diverted 80% of his income to his mother.</p>


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Answer 1: <p>For clarity, in a divorce case in New York State involving children, the judge typically decides: (1) child custody, (2) child support, (3) alimony, (4) division of the couple's property, and (5) allocation of attorney's fees and costs associated with the case. The judge also terminates the marriage if the jurisdictional requirements for doing so are met. In New York State, there is both no fault divorce and fault based divorce, and in a fault based divorce, the judge decides if fault was present. Divorces are handled by the New York State Supreme Court (not, as one might suspect, by the New York State Family Court), which is a trial court of general jurisdiction in New York State.</p>
<p>In a fault based divorce, marital fault is considered with regard to issues of property division and alimony, but not with regard to child custody or child support.</p>


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<p>In a fault based divorce, marital fault is considered with regard to issues of property division and alimony, but not with regard to child custody or child support.</p>
<p>If you are married and your wife has a child during the marriage, in New York State, you are presumed to be the father of the child. You can bring a lawsuit to prove that you are not the father of the child, but the deadline for doing so is fairly short after the child is born. After five years this statute of limitations would probably have run. But, it sounds like the infidelity is not alleged to have caused the wife to become pregnant, so that isn't really an issue.</p>
<p>The extreme levels you would have gone to in order to spite your spouse  and your hostility towards her, make it unlikely that the court would award you full custody or joint custody, although it would be required to award you some parenting time so long as you were legally presumed to be the father.</p>


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<p>If you are legally considered to be a parent of the child, custody will be allocated in the best interests of the child, and child support will be awarded based primarily on your income, your ex-wife's income, and the number of nights that the child spends with each parent.  In all likelihood, you would be awarded little parenting time given your conduct and statements, and full custody would be awarded to the wife who would get child support from you based upon your income. (Assets are rarely considered in child support awards.)</p>


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<p>If you sign assets over to your brother, the court will probably treat you as if you still owned those assets for purposes of property division upon the divorce. If your assets exceed those of your spouse, the court will probably award all remaining assets to your spouse and require you to pay a property equalization payment to your spouse to make up for your inability to pay a full amount to your pre-transfer share of assets to your spouse. If the transfer to your brother took place after the divorce was commenced, the court would probably also hold you in contempt of court and put you in jail.</p>
<p>Your transparent efforts to divest yourself of assets, and your unsubstantiated claim of infidelity would not in any way reduce you alimony obligation to your spouse, if under the facts and circumstances, such as the length of the marriage and the relative economic means of the parties, the court finds that an alimony award is appropriate.</p>


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<p>Unsubstantiated claims of infidelity will only make the court treat you more harshly. Most New York State divorces are no fault divorces in which infidelity is irrelevant, but New York State does have residual fault based divorces which could count against your ex-wife in a variety of ways (although not with respect to child custody or child support). But this is only if you can prove the infidelity in court.</p>
<p>In reference to the linked case in Spain, it is worth noting that a New York State divorce judge has much more power and discretion than a Spanish divorce judge. The New York State divorce judge is allowed to equitably divide the couple's property rather than merely adhering to formulaic community property rules, and the New York State divorce judge has contempt of court power which the Spanish divorce judge lacks.</p>


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Answer 2: <p>Divesting assets to avoid debts in the US is fraud.  Engaging in fraud would be a very poor way to gain custody of a child.</p>
<p>Assets gained during marriage would not be transferrable to a third party and the transfer would likely not be allowed by the courts.</p>
<p>So now you've lost the money <em>and</em> the child.</p>
<p>Best is to hypothetically get married and understand that half of the assets you gain are no longer yours no matter why.  Create a child and pay for its upbringing.</p>


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Answer 3: <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>
<p>Parenting time and parenting responsibilities (colloquially, &quot;custody&quot;) will be determined in accordance with the best interests of the child (see <em>Family Law Act</em>, <a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_04#section37" rel="nofollow noreferrer">s. 37</a>). Evidence regarding extra-marital affairs is irrelevant to a determination of the best interests of the child unless it bears upon a factor listed at s. 37(2)(a).</p>


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<p>Child support will be distributed according to the <a href="https://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/FullText.html" rel="nofollow noreferrer"><em>Child Support Guidelines</em></a> (<a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_11025_00_multi#section150" rel="nofollow noreferrer">s. 150</a>). The amount of support is dictated by the division of parenting time and the income of the paying parent.</p>
<p>Where it appears that a spouse has diverted income, the court can impute the income (<em>Child Support Guidelines</em>, s. 19(1)(d)). A spouse has an obligation to disclose their true income and provide relevant documentation (<em>Child Support Guidelines</em>, s. 21). Failure to do so can result in an adverse inference, imputation of income, and/or contempt orders against the spouse (<em>Child Support Guidelines</em>, ss. 21-23; <em>Family Law Act</em>, ss. 212-213)</p>


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Question Title: is it possible to override a provision regarding whether state or national law applies to a crime?


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Question Body: <p>if a law has the following provisions</p>
<blockquote>
<p>Where an act or omission constitutes an offence punishable under this Act and also under any other Central or State Act, then, notwithstanding anything contained in any other law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under such Act as provides for punishment which is greater in degree.</p>
</blockquote>
<p>Is there any legal principles or laws that could allow for the defendant/accused to be charged and punished under those laws that provide for a lesser punishment ?</p>
<p>so far the most relevant law I've found is the general clauses act 1897 section which states that</p>
<blockquote>
<p>Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.</p>


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Answer 1: <h2>No.</h2>
<p>The general clauses act of 1897 allowes to charge with <em>either</em> but <em>not both</em> laws that are possible, depending on the choice of the prosecutor.</p>
<p>The law you quoted <em>without source</em> is not circumventing that, it just alters the punishment tables for <strong>all</strong> involved laws to be the biggest of all involved laws.</p>
<p>Let's take a fictional set of laws:</p>
<ul>
<li>the state says that jaywalking is punished by 1 day in jail.</li>
<li>the central law says that jaywalking is punished by 1 week in jail.</li>
<li>the free streets act (FSA) says that jaywalking is punished by 1 month in jail <strong>and</strong> it has that provision.</li>
<li>the jaywalking prevention act (JPA) says that jaywalking is punished by 1 year in jail.</li>
</ul>


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<li>the jaywalking prevention act (JPA) says that jaywalking is punished by 1 year in jail.</li>
</ul>
<p>As a result, under any of the four laws, the punishment is <strong>always</strong> 1 year, never the lesser ones, because the FSA overrides the state and central law and even its own punishment by that of the JPA.</p>


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Question Body: <p>A company is advertising a sale stating that I will receive a discount site wide for 50% off. A hyperlink to the sale clearly shows the sale applies to all available products, further in each one of those products available durations (ex. 1,3 and annual). Finally, by clicking on a link I can take advantage of that sale as advertised (vs having to call and talk to someone). After the purchase, I have access to the product, I receive a receipt and other information clearly showing the sale is valid and final.</p>
<p>That being said... I call the same company prior to purchasing the product via the advertised sale link. A representative from that company verbally states the sale is really only available annually and not any other time frame (I'm not sure if it matters but he did not ask me to not purchase because of the error).</p>


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<p>The call ends, and I go ahead and purchase the product using the sale price (I took screenshots of the advertisement and the company's website showing the sale).</p>
<p>He calls me the next day and said that the purchase was done behind his back and that he told me it was only available annually. Therefore the advertised terms are not valid and his statement is.</p>
<p>Am I wrong or is what he saying will hold water? Can they just change their mind (I can't find any disclaimers) From what I've described is all of this bordering on false advertising?</p>
<p>I'm doing research to find a case as well. If someone has a case similar please let me know.</p>
<p>PS We are in different states.</p>


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Answer 1: <h2>Do you have a contract?</h2>
<p>It depends on the website’s terms but almost certainly not.</p>
<p>It is standard practice in e-commerce terms and conditions that your selecting “buy” and giving the vendor money does not create a contract; you are merely making an offer that the vendor can accept or reject. For example, Amazon’s terms are clear that the contract only comes into existence when they dispatch the goods, until then they are free to cancel your order and return your money.</p>
<p>Here the vendor rejected the offer.</p>
<h2>Is this false advertising?</h2>
<p>Maybe.</p>
<p>It would depend on the specifics of the ad and whether, overall, a reasonable person would be mislead or deceived. It’s possible you misunderstood but that doesn’t necessarily make it misleading or deceptive. I misunderstand a lot of things; that doesn’t mean they were objectively misleading or deceptive.</p>


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<p>Notwithstanding, a business does not have to make good on false advertising. An incorrect advertised price does not force the business to anccept offers of that price. It may force a correction and may require the item to not be sold until the price is corrected and it may expose the business to fines, but it does not give anyone the right to buy at that price.</p>


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Question Title: Are there any repercussions for my landlord having us sign the wrong lease?

Question Body: <p>When we moved in to our current house our landlord said our lease would be a year to year lease. We recently found out that they are selling the building and our housing situation isn't concrete anymore because it turns out our lease is a month to month instead. We asked the landlord to fix the issue and send us a new lease to sign but they are refusing to do so. Is there anything we can do about this situation?</p>


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Answer 1: <h2>You signed the lease</h2>
<p>In general, this is definitive of your intention to have a month-to-month lease.</p>
<p>Any correspondence that you have prior to you signing that you wanted or even agreed on a yearly lease is only evidence that such things formed part of the negotiations but, for whatever reasons, what was ultimately agreed was a month-to-month lease.</p>
<p>If you can prove <a href="https://en.wikipedia.org/wiki/Misrepresentation" rel="nofollow noreferrer">misrepresentation</a> you might be able to get what you want but the usual remedy is recission (ending) of the contract, not a change to the contract. However, given that the type of lease is such a fundamental feature and is usually prominent on the document, proving you were misled rather than agreeing to a month-by-month lease will be difficult.</p>


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Answer 2: <p>Depending on the state, depends on how much tenant protection you have. Eviction process and notice regulations can be months out. So yes it is not a yearly lease, but depending on state, this may not matter much. Check your local town/city laws, and your state laws for tenant bill of rights.</p>


Tags: landlord, tenancy-rules


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Question Title: copyrighted material used by a commercial entity

Question Body: <p>Can a copyrighted material be used by a company employees if it is not a part of a commercial product?</p>


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Answer 1: <p>There are two ways in which &quot;commercial&quot; is relevant to copyright. First, it might be a factor in a software license, for example &quot;may only be used for non-commercial purposes&quot;. This is most often found on free or discount software, so you would have to look at the exact wording of the license.</p>
<p>The second is, in the US, one can &quot;use&quot; (copy) protected items to a limited extent if that usage is &quot;fair use&quot;. For example, you can copy a sentence of two from a novel in a review of the novel, without obtaining permission of the copyright owner. The distinction between a non-commercial purpose and a commercial purpose figures into the determination of &quot;fair use&quot;, whereby a commercial use is less likely to be considered &quot;fair use&quot;. There isn't a distinction between the bosses use and an employee's use, that is, being the boss does not change your rights w.r.t. fair use.</p>


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<p>Whether or not a &quot;use&quot; potentially infringes copyright depends on the specific action that constitutes the use. Copyright restricts copying. You may use a printed book as a weight – that does not infringe copyright. If a computer has a program installed on it, anyone can &quot;use&quot; that copy, because they are not making another copy. You cannot freely use the installation media to install it on another computer without a license to do so, so you have to check whether e.g. only the boss can install the program on his computer, or can employees do likewise (an individual license vs. a site license).</p>


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Question Title: If I buy a domain, do I need to create an LLC?

Question Body: <p>So, I want to create a name and buy a domain for a website to use currently. However, in the future I would like it to be a business so that way I can self-publish. Do I need to create an LLC if I already own the domain? Can someone legally create an LLC with the same name as my domain? Just trying to understand what the difference is between an LLC and a business</p>


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Answer 1: <blockquote>
<p>Do I need to create an LLC if I already own the domain?</p>
</blockquote>
<p>No.</p>
<blockquote>
<p>Can someone legally create an LLC with the same name as my domain?</p>
</blockquote>
<p>Yes.</p>
<blockquote>
<p>Just trying to understand what the difference is between an LLC and a business</p>
</blockquote>
<p>An LLC, a &quot;limited liability company,&quot; is a kind of legal entity that has a separate identity from the members of the LLC.  The members' liability is limited with respect to the company's liability, hence the name.</p>
<p>A business is a commercial activity.  The two concepts are independent.  A person can have a business without forming a corporation, or indeed many businesses.  A single corporation can also have many businesses.</p>


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<p>Back to the question about someone forming an LLC using your domain name, this raises the issue of <a href="https://en.wikipedia.org/wiki/Trademark" rel="nofollow noreferrer">trademark protection</a>.  In the US, at least, you can't register a trademark unless it is &quot;in use in commerce&quot; (<a href="https://www.law.cornell.edu/uscode/text/15/1051" rel="nofollow noreferrer">15 USC 1051(a)(3)(C)</a>), which means explicitly that you cannot use the mark &quot;merely to reserve a right in&quot; it (<a href="https://www.law.cornell.edu/uscode/text/15/1127" rel="nofollow noreferrer">15 USC 1127</a>).</p>
<p>But there are many subtleties of trademark protection that are widely misunderstood by most people, so if you anticipate wanting trademark protection for a name, you will probably want to learn about how trademark protection works and likely talk to a trademark lawyer.</p>


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Question Title: I have found my email address online in a .txt file. What should be my next step?

Question Body: <p>A few days ago someone tried to log into my bank account, the attempt was unsuccessful but it was quite concerning. I’ve spent the past weekend moving my most important accounts to alternate emails and setting up TFA everywhere. I plan to get rid of my old email altogether since it was also used to sign up for some random websites and newsletters in the past weeks.</p>
<p>As a part of the clean up I’ve run a Google search for my email and found a .txt file online with my email and thousands of others. They were categorised as valid/invalid. The site was since taken down but I have screenshots.</p>
<p>I live in the E.U. and I’ve been thinking about a GDPR or a police report. The website owner was really easy to find and lives in the same country as me.</p>
<p>What should be a next step?</p>


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Answer 1: <ul>
<li>Just the email in such a list is annoying but not really concerning. There are millions of people who put their email into publicly available contact data, and after a couple of years of use <em>any</em> email is going to be exposed some way. That's why websites use passwords in addition to just the email and why mail programs have spam filters.</li>
<li>Your email was probably not used to <em>sign up</em> anywhere. Instead, spammers pretend that you signed up to slow attempts to prosecute them. A bit of a joke, really, considering how hard it is to prosecute spammers. The valid/invalid remark is used to facilitate spamming, no need to send mails to long-inactive addresses.</li>
<li>More concerning than a 'leak' of your email would be a leak of your email plus password. (Such things also happen, and they are a reason why one should use different passwords and 2FA/MFA on important sites.) If it is just the email, see my first bullet point.</li>


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<li>There is a significant likelihood that the 'website owner' you <em>think</em> you identified is another victim of the address trader. Getting to the real culprit will require significant forensic effort. That effort is unlikely to happen for <em>just</em> emails.</li>
</ul>


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Question Title: What effect does the coronation have after accession had already taken place upon the predecessor’s passing?

Question Body: <p>Does it have any actual consequence on the state of affairs for the monarch?</p>


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Question Body: <p>Does it have any actual consequence on the state of affairs for the monarch?</p>


Answer 1: <p>Other than the oath (see the <a href="https://www.parliament.uk/about/living-heritage/evolutionofparliament/parliamentwork/offices-and-ceremonies/collections/parliament-and-the-queen/coronation-oath-act/" rel="noreferrer">Coronation Oath Act</a>), nothing at the ceremony has any legal significance. The coronation is a &quot;symbolic formality.&quot; The reign begins at the moment of the preceding monarch's death.</p>
<blockquote>
<p>The Coronation Oath, in which the monarch swears to govern the peoples of the United Kingdom and the Commonwealth Realms “according to their respective laws and customs” is the only aspect of the ceremony which is required by law.</p>
</blockquote>
<p><a href="https://commonslibrary.parliament.uk/research-briefings/cbp-9412/" rel="noreferrer">https://commonslibrary.parliament.uk/research-briefings/cbp-9412/</a></p>


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Question Title: java microbenchmark harness and its impact on software licenses

Question Body: <p>JMH is released under the GPL2 license which is a viral license :-) If I use JMH (but only in tests) do I have to make my application available under the GPL2 license by definition?</p>
<p>I asked various test groups, but so far opinions are divided. I'm waiting for someone to give an answer best supported by some legal expertise :-)</p>


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Answer 1: <p>If you distribute your software together with tests and JMH, then it must be GPL licensed. If you distribute your software without these tests and without JMH, then it doesn't have to be GPL licensed.</p>
<p>You might be able to distribute your software, together with tests that are <em>designed to work</em> with JMH, but that don't actually work because you didn't distribute JMH. You can do that without a GPL license. You can then add instructions how to download JMH, how to combine it with the tests and how to run these tests.</p>
<p>If I follow these instructions, then I have tests that I can only distribute with the GPL license. But on the other hand I don't have your permission to distribute your tests, so as the logical consequence I cannot distribute these tests at all. (Or I might have your permission to distribute the tests, but no source code, which means I cannot meet my GPL license obligations, so I cannot distribute under GPL either).</p>


Tags: licensing


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Question Title: Asked in court about something you are not allowed to answer

Question Body: <p>Say you own a company in the USA that offers services via the internet. I read that in some situations, you are required to give personal data of a user to the US government and you are not allowed to tell anyone.</p>
<p>Now what happens if you are witness in a trial and questioned about this?</p>
<p>If you say you never gave user data to the government, you lie. If you say you are not allowed to answer, then it is clear that you did.</p>
<p>Or is such a question inadmissible in the first place?</p>


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Answer 1: <p><a href="https://en.wikipedia.org/wiki/National_security_letter" rel="noreferrer">National security letters</a> can compel the production of some kinds of (non-&quot;content&quot;) user data, and (according to Wikipedia) typically contain a nondisclosure requirement forbidding the recipient of the letter from disclosing it. I assume that a witness has received and complied with a national security letter, and a non-government party wants to ask the witness questions which outside the courtroom, the witness would be forbidden to answer by the national security letter.</p>


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<p>The witness, or the government if represented in the lawsuit in question, may object to the questions. The purpose which justifies the secrecy requirements of a national security letter is also likely to justify the exercise of <a href="https://en.wikipedia.org/wiki/State_secrets_privilege" rel="noreferrer">state secrets privilege</a>. If the judge thinks a statute might otherwise be violated, they might intervene in the absence of any objection, or consider alternative remedies like an <a href="https://en.wikipedia.org/wiki/In_camera" rel="noreferrer">in camera hearing</a>.</p>


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<p>If the court does not intervene to prevent the evidence being given, and the witness is charged with breaching the secrecy law, this would raise complex questions about the interpretation of the law imposing criminal penalties. The common law doctrine of <a href="https://www.jstor.org/stable/43950134" rel="noreferrer">absolute privilege for witnesses</a> giving evidence in judicial proceedings <a href="https://www.jstor.org/stable/1109136" rel="noreferrer">applies in the United States</a>, and could be raised in defence to any criminal charges.</p>


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Question Title: Is there any chance for a parent to get a joint custody without a legal status in the U.S.?


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Question Body: <ul>
<li>Jan 2020 - I came from Outside of U.S. (foreign citizen) on a fiancee visa.</li>
<li>Mar 2020 - I married my ex-wife (she is a U.S. citizen).</li>
<li>Sep 2020 - I got my 2 year temporary green card.</li>
<li>Mar 2021 - Our daughter was born.</li>
<li>May 2021 - We decided to divorce. She is the plaintiff.</li>
<li>Jun 2021 - The divorce is finalized. She is the primary custodian.</li>
<li>May 2022 - I applied to remove the conditional status from my green card. It was 3 months before the expiration. My application is still pending. I am worried that they might suspect as if there is immigration fraud or something. What is they want to take me to the deportation court or something.</li>
</ul>


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</ul>
<p>I was thinking to get a joint custody of our daughter. Do I have a chance? Or do I need to be able to provide a Legal Residence Status? Is my current status considered to be a Legal Status? Will the judge think it’s unstable status? I live in Arkansas. If possible to provide an answer with link to some official .gov references.</p>


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Answer 1: <p>Yes.</p>
<p>Citizenship and immigration status are not factors that are expressly considered under Arkansas law in an award of joint custody. <em>See</em> Arkansas Code Section 9-13-101. This is discussed in a previous answer is <a href="https://law.stackexchange.com/a/92200/9517">here</a>.</p>


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Answer 2: <blockquote>
<p>Or do I need to be able to provide a Legal Residence Status? Is my current status considered to be a Legal Status?</p>
</blockquote>
<p>You remain a conditional permanent resident for as long as your Removal of Conditions application (I-751) is pending. See <a href="https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-216/section-216.4#p-216.4(a)(1)" rel="nofollow noreferrer">8 CFR 216.4(a)(1)</a>:</p>
<blockquote>
<p>Upon receipt of a properly filed Form I–751, the alien's conditional permanent resident status shall be extended automatically, if necessary, until such time as the director has adjudicated the petition.</p>
</blockquote>


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</blockquote>
<p>(This section is about jointly-filed I-751s. You applied on a waiver basis on the basis of divorce, so it would be covered by <a href="https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-216/section-216.5" rel="nofollow noreferrer">8 CFR 216.5</a>, which doesn't have this sentence, but the same thing applies.)</p>


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<p>I-751 receipts now <a href="https://www.uscis.gov/newsroom/alerts/uscis-extends-green-card-validity-for-conditional-permanent-residents-with-a-pending-form-i-751-or" rel="nofollow noreferrer">serve as a 48-month extension letter</a>, meaning that the I-751 receipt, plus your expired green card, serves as valid proof of permanent residency for all purposes a green card can be used for, including entering the US, working in the US, etc., until 48 months after your green card expired. (The 48-month extension started in Jan 2023; previously, it was 24 months. They re-issued 48-month extension letters to people whose I-751s were pending as of Jan 2023.) Since your green card expired in Sep 2022, this extension letter plus expired green card serve as proof of your status until Sep 2026. If your I-751 is still pending at that time, or if you lose your green card or extension letter, you may call USCIS to get an I-551 stamp as further temporary proof of permanent residency.</p>


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<blockquote>
<p>What is they want to take me to the deportation court or something.</p>
</blockquote>
<p>You should not be put into removal proceedings while your I-751 is pending. If your I-751 is denied, you will be put into removal proceedings in immigration court. There, you can challenge the I-751 denial (potentially with a lawyer) with the immigration judge in immigration court, and if the immigration judge agrees with you, they can approve your I-751. So the removal proceedings basically function like an &quot;appeal&quot; of the I-751, even though it is not technically called an appeal. Both <a href="https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-216/section-216.4#p-216.4(d)(2)" rel="nofollow noreferrer">8 CFR 216.4(d)(2)</a> and <a href="https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-216/section-216.5#p-216.5(f)" rel="nofollow noreferrer">8 CFR 216.5(f)</a> say:</p>
<blockquote>


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<blockquote>
<p>No appeal shall lie from the decision of the director; however, the alien may seek review of such decision in removal proceedings.</p>
</blockquote>
<p>Your other questions:</p>
<blockquote>
<p>I was thinking to get a joint custody of our daughter. Do I have a chance? [...] Will the judge think it’s unstable status?</p>
</blockquote>
<p>I am not familiar with how family and custody law in your state views immigration status. But Removal of Conditions is a perfectly normal and routine procedure that people immigrating as spouses go through. The expectation is that your conditions will be removed and you will be able to remain in the US permanently. It doesn't make sense for you to be penalized for being a conditional permanent resident, unless there is reason to believe that your conditions won't eventually be removed.</p>


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Question Title: Ex-slaves not born in U.S. and 14th Amendment

Question Body: <p>The 14th Amendment states that &quot;All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.&quot;</p>
<p>Did cases ever arise in courts concerning any ex-slaves not born in the United States include arguments that the 14th Amendment did not apply to them?</p>


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Answer 1: <p>At least one such person was naturalized, according to Wikipedia, in 1868, a time at which I believe naturalization was conferred by district court judges.  Although this doesn't perhaps constitute a court case, as asked by the question, it does show that formerly enslaved people who has been born outside the United States were not automatically granted US citizenship.  <a href="https://en.wikipedia.org/wiki/Cudjoe_Lewis#Participation_in_American_institutions" rel="noreferrer">Wikipedia says</a>:</p>
<blockquote>
<p>Although native-born American former slaves became citizens upon the passage of the Fourteenth Amendment to the United States Constitution in July 1868, this change in status did not apply to the members of the Clotilda group, who were foreign-born. Cudjo Kazoola Lewis became a naturalized American citizen on October 24, 1868.</p>
</blockquote>


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</blockquote>
<p>The passage cites <em>Dreams of Africa in Alabama: The Slave Ship Clotilda and the Story of the Last Africans Brought to America</em> by Sylviane A. Diouf</p>


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Answer 2: <blockquote>
<p>Did cases ever arise in courts concerning any ex-slaves not born in
the United States include arguments that the 14th Amendment did not
apply to them?</p>
</blockquote>
<p>As the <a href="https://law.stackexchange.com/a/92237/9517">answer from phoog</a> notes, this did happen. But, it was very rare because international slave trade was made illegal under U.S. law many decades before the 14th Amendment was adopted and many decades before the U.S. Civil War.</p>


Tags: united-states, constitutional-law, slavery


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Question Body: <p><a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_13_14_00005_201232_1517807323686&amp;sectionId=12864&amp;sectionno=15&amp;orderno=15" rel="nofollow noreferrer">Section 15</a> Protection of Children from Sexual Offences Act, 2012 includes this:</p>
<blockquote>
<p>Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction with imprisonment of either description which shall not be less than three years which may extend to five years, or with fine, or with both and in the event of second or subsequent conviction, with imprisonment of either description which shall not be less than five years which may extend to seven years and shall also be liable to fine.</p>
</blockquote>
<p>Storing and possessing includes viewing and browsing it too or having it in your browser history.</p>


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</blockquote>
<p>Storing and possessing includes viewing and browsing it too or having it in your browser history.</p>
<p>In India there are online communities that reccomend and share links and advertise for sale various manga which involves various sexually explicit content involving child characters (large amount of manga are like this) and some of those sites have advertisements running on them too. would they be liable under this law?</p>


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Answer 1: <p>No</p>
<p><a href="https://en.m.wikipedia.org/wiki/Manga" rel="nofollow noreferrer">Manga are comics or graphic novels</a> so do not meet the definition of child pornography at <a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_13_14_00005_201232_1517807323686&amp;orderno=2" rel="nofollow noreferrer">section 2(1)(da)</a>, POCSO</p>
<blockquote>
<p>&quot;child pornography&quot; means any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image <strong>indistinguishable from an actual child</strong> and image created, adapted, or modified, but <strong>appear to depict a child</strong></p>
<p>[<em>my emboldenment</em>]</p>
</blockquote>


Tags: india, definition, interpretation, sexual-offences, child-porn


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Question Title: Why is there a consort coronation for female consorts but not for male ones in the United Kingdom?


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Question Body: <p><a href="https://en.wikipedia.org/wiki/Coronation_of_Charles_III_and_Camilla" rel="nofollow noreferrer">Wikipedia:</a></p>
<blockquote>
<p>Charles's wife, Camilla, will be crowned alongside him as queen consort. (...) This will be the first coronation of a consort since that of his grandmother Queen Elizabeth (later known as the Queen Mother) in 1937.</p>
</blockquote>
<p>In addition to this, wives of Kings of England are styled as &quot;queen consort&quot;, while husbands of Queens of England are styled as &quot;prince consort&quot; - and it seems that Philip of Edinburgh even had to be specifically made prince by Elizabeth II, i.e. it wasn't automatic due to their marriage (prince <em>of Britain</em> I mean, since he was already prince in other monarchies).</p>
<p>What are the rules when it comes to the coronation of a consort in the UK, and what are all the differences relating to the sex of said consort? Where do there these differences come from?</p>


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Answer 1: <h2>There has only been one <a href="https://en.wikipedia.org/wiki/Prince_consort#King_consort" rel="nofollow noreferrer">Prince Consort</a></h2>
<p><a href="https://en.wikipedia.org/wiki/Albert,_Prince_Consort" rel="nofollow noreferrer">Albert</a>, the husband of Victoria, was the only Prince Consort in post-conquest English/UK history. It was a title created specifically for him because the establishment and the country didn’t like him very much.</p>
<blockquote>


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<blockquote>
<p>The titles of the five pre-Victorian male consorts varied widely. Mary I of England's husband Philip was declared king <em>jure uxoris</em> and given powers equal to his wife while she reigned, but Queen Anne's husband Prince George of Denmark received no British titles other than the Dukedom of Cumberland (his princely title being Danish). Meanwhile, the official title of the three husbands of Mary, Queen of Scots was never fully resolved. At least one (Henry Stuart, Lord Darnley), was declared king consort, and both he and his predecessor Francis II of France sought recognition as king <em>jure uxoris</em> (under a proffered theory of the &quot;Crown Matrimonial of Scotland&quot;), but the title and powers of the consort were a constant issue during Mary's reign and remained unresolved when Mary was captured and executed.</p>
</blockquote>


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</blockquote>
<p>Philip was not Prince Consort, he was made a <a href="https://en.wikipedia.org/wiki/British_prince" rel="nofollow noreferrer">British Prince</a> - the same title held by his sons.</p>
<h2>The only legal requirement is the <a href="https://www.legislation.gov.uk/aep/WillandMar/1/6" rel="nofollow noreferrer">oath</a></h2>
<p>The Coronation Oaths Act 1688 requires the oath to be taken by the Monarch and specifies its form. This is the only thing required to make the coronation legal.</p>
<p>Everything else is due to religion, tradition, and choice.</p>
<h2>It is not true that all Queen consorts have been crowned</h2>
<p>In general, when the King was married at the time of the coronation, the Queen consort was also crowned. However, there have been exceptions.</p>
<p>When the King married after the coronation, sometimes there was a coronation for the Queen consort but often there wasn’t.</p>


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Question Body: <p>GDPR Section 2 Recital 18 (?) reads:</p>
<blockquote>
<p>Not Applicable to Personal or Household Activities</p>
<p>This Regulation does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity. Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities.</p>
</blockquote>
<p>What information do we have to determine what counts as &quot;a purely personal or household activity&quot;?</p>


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<p>Data processing tools available to the individual have become much more powerful in recent years, and it seems this is likely to increase rapidly in the near future.  Last year I thought the most powerful tools available to anyone that had the potential to break the GDPR were <a href="https://www.bellingcat.com/resources/2022/09/19/identifying-suspicious-businesses-reddit-analysis-and-tracking-russian-propaganda-here-are-the-results-of-bellingcats-first-ever-hackathon/" rel="nofollow noreferrer">bellingcat's</a> <a href="https://www.bellingcat.com/resources/2022/10/06/automated-map-searches-scam-busting-tools-and-twitter-search-translations-here-are-the-results-of-bellingcats-second-hackathon/" rel="nofollow noreferrer">tools</a> for building personal network graphs from public information such as social media and Companies House.  However in the last month open source tools derived from <a href="https://ai.facebook.com/blog/large-language-model-llama-meta-ai/" rel="nofollow


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such as social media and Companies House.  However in the last month open source tools derived from <a href="https://ai.facebook.com/blog/large-language-model-llama-meta-ai/" rel="nofollow noreferrer">Meta’s LLaMA</a> Large Language Model have improved to the point that they are competitive with the best in the world and <a href="https://natural20.com/google-ai-documents-leak/" rel="nofollow noreferrer">Google expects them to eclipse this performance in coming months</a>.</p>


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<p>For example <a href="https://lmsys.org/blog/2023-03-30-vicuna/" rel="nofollow noreferrer">Vicuna-13B</a> runs on a reasonable gaming computer and when asked &quot;tell me about [FIRST SURNAME] from [INSTITUTION]&quot; will provide a mostly inaccurate paragraph that includes some true personally identifiable information.  This works for me and some others who have a web presence such as have published peer reviewed literature but are not in any way famous.  <a href="https://chat.lmsys.org/" rel="nofollow noreferrer">They have an online demo that requires no registration, you can try it yourself here</a>.</p>


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<p>It seems at the very least it would be challenging to justify the use of such a tool under the GDPR.  As I understand it all the information within the network is used to answer every question, even if just as far as &quot;do not use this bit of the network&quot;.  Therefore any use could be classed as the processing of personal data.  Therefore if one wanted to download and experiment with such a model the easiest way would be to rely on the Household Activities exception.  However it is not totally clear what would and would not be counted.  What information could we use to try and determine if such a use was legal, and what the limits would be?</p>
<p>Previous Reaserch</p>


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<p>Previous Reaserch</p>
<p><a href="https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/exemptions/" rel="nofollow noreferrer">The ICO has a page on the exceptions</a> but that explicitly does not cover domestic purposes: &quot;This is simply because they are not covered by the UK GDPR&quot;. It gives the topic two sentences, the first repeats the law and the second give a couple of examples that are not relevant here.</p>


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<p><a href="https://ico.org.uk/media/action-weve-taken/decision-notices/2019/2615778/fs50807165-1.pdf" rel="nofollow noreferrer">There is a denied FOI request</a> for &quot;any policy, guidance, lines-to-take or other material you hold on the scope of the exemption contained in GDPR art 2(2)(c) and/ or recital 18&quot; with the denial based on this information appearing in guidance including &quot;a final published version&quot;.  However I cannot find this guidance with either Google or the ICO website search.</p>
<p><a href="https://www.fff-legal.com/the-household-exemption-in-gdpr/" rel="nofollow noreferrer">There is a case from the Netherlands</a> that excludes posting photos of one's child on social media from the household use exception.  While this may not directly relate to my question, it does illustrate the the exception can be interpreted quite narrowly.  It rather surprised me as posting photos of one's children seems to be quite a big bit of social media.</p>


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Answer 1: <p>The household exemption is part of Art 2 GDPR, which lays out the subject matter scope. Clearly, the use of LLMs and other technologies can be GDPR-covered processing of personal data, unless this is done “by a natural person in the course of a purely personal or household activity”. You cited Recital 18, which provides a bit more background, and gives correspondence, keeping addresses, and some social media use as examples of personal or household activities.</p>
<p>There is some CJEU case law on the GDPR household exemption.</p>
<p>In <em>Lindqvist</em> (C-101/01), the court noted:</p>
<blockquote>
<p>47. That exception must therefore be interpreted as relating only to activities which are carried out in the course of private or family life of individuals, which is clearly not the case with the processing of personal data consisting in publication on the internet so that those data are made accessible to an indefinite number of people.</p>
</blockquote>


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</blockquote>
<p>That case was about a personal blog about the lives of coworkers. It would likely have been fine for that person to keep a personal diary of those matters, but here the problem was publication to the internet. Since <em>anyone</em> could read it, the blog was not purely personal.</p>
<p>A decade later in <em>Rynes</em> (C‑212/13), the court noted that the legislators' use of the word &quot;purely&quot; requires this exception to be interpreted narrowly:</p>
<blockquote>
<p>30. The fact that Article 3(2) of Directive 95/46 falls to be narrowly construed has its basis also in the very wording of that provision, under which the directive does not cover the processing of data where the activity in the course of which that processing is carried out is a ‘purely’ personal or household activity, that is to say, not simply a personal or household activity.</p>
</blockquote>


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</blockquote>
<p>Such a narrow interpretation is also necessary to maintain the data subject's fundamental rights.</p>
<p>Note that Directive 95/46 is the old Data Protection Directive which was replaced by the GDPR. It contains a household exception that is worded virtually identically to the one in the GDPR, so these old CJEU judgments remain directly applicable. They also remain relevant in the UK, as all of this predates Exit Day.</p>


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<p>To my knowledge there has not been any further guidance on the household exception, neither by the ICO nor by the EDPB.  This is also because these data protection agencies do not make law or policy, but merely apply it. It is up to courts to correctly interpret the household exception. In the Dutch case you mention (for <a href="https://gdprhub.eu/index.php?title=Rb._Gelderland_-_C/05/368427" rel="nofollow noreferrer">GDPRHub has more details</a> and the <a href="https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:RBGEL:2020:2521" rel="nofollow noreferrer">original judgement is here</a>), the court does not explain why exactly the household exemption wouldn't apply, but the narrow interpretation seems in line with the CJEU case law. I want to highlight in particular that the defendant in that case failed to demonstrate that the personal data in question wasn't accessible to an &quot;indefinite number of people&quot;, to borrow the expression from the Lindqvist case.</p>


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<p>My personal opinion is that this &quot;indefinite number of people&quot; aspect provides the clearest criterion for whether the household exception might apply. If processing activities are not shared at all, or only made available to close friends and family, there's a good chance the exception might apply. In the LLM context, to the degree that their use constitutes processing of personal data, running such models for personal amusement or out of personal curiosity is probably fine. It might also be OK to share such outputs in a closed chat group. But creating them for non-personal purposes (e.g. employment purposes) or disseminating them to the public could cause GDPR to apply. LLMs are far from the only scenario where such difficult questions arise. Another fun topic is the degree to which the use of LinkedIn is GDPR compliant (since no one uses that platform for purely personal purposes), or how large a friend group's Discord server can grow while still counting as


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the degree to which the use of LinkedIn is GDPR compliant (since no one uses that platform for purely personal purposes), or how large a friend group's Discord server can grow while still counting as &quot;purely personal&quot;.</p>


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<p>If the household exception doesn't apply, this means that data processing activities have to be performed in compliance with the GDPR. This doesn't generally means that they would be illegal. However, the use of AI models does pose some potential challenges:</p>
<ul>
<li>What is the legal basis for <em>training</em> the models? Perhaps there is a <em>legitimate interest</em> for using publicly available data, maybe not. Can an unlawfully trained model still be used lawfully?</li>
<li>What is the legal basis for using the models for <em>inference</em>? This will depend massively on the <em>purpose</em> for which the models are used.</li>
<li>How does the use of (potentially wrong) AI output interact with the Art 5(1)(d) accuracy principle and the Art 22 restrictions on automated individual decision-making?</li>
<li>To which degree are <em>prompts</em> other people's personal data? How does this interact with the legal basis used for inference? Whose personal data is the output?</li>


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<li>To which degree are <em>prompts</em> other people's personal data? How does this interact with the legal basis used for inference? Whose personal data is the output?</li>
</ul>


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Question Title: Under what circumstances can a low/midlevel employee be personally sued for a corporate act?

Question Body: <p>Let's say, for instance, that the issue at hand was the <a href="https://en.wikipedia.org/wiki/Exxon_Valdez" rel="nofollow noreferrer">Exxon Valdez Oil Spill</a>. Exxon was sued of course, and I would imagine that its then chairman would have, or at least could have been, sued.</p>

<p>The perpetrator of the accident was one <a href="https://en.wikipedia.org/wiki/Joseph_Hazelwood" rel="nofollow noreferrer">Captain Joseph Hazelwood</a> of the vessel. From what I understand, he was sued, even though he was a "mid level" employee. Was it his tie to the incident that allowed him to be sued?</p>


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<p>Change the facts some. A janitor or plumber working for a contracting agency in "servicing" a client negligently flipped a switch that caused the client's building to be burned down. I would imagine that the agency could be sued. Can that person also be sued, or is s/he too "low level" for this?</p>

<p>Put another way, my understanding is that a person needs to have "standing" in order to be a plaintiff in a case. Is it true that someone (even if low level), similarly needs to have "standing" (or its equivalent) to be a defendant, and if so, what constitutes such "standing?"</p>


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Answer 1: <p>The fact that the employer has vicarious liability for acts of its employees "within the scope of employment" does not mean the employees are not also liable for their own acts. In reality, however, the employer is more likely to have insurance for such "acts or omissions" of employees.  The plaintiffs can "sue everyone in sight" and let them figure out who actually pays when they are found liable.</p>

<p>That way, when the employee's actions are (for instance) ruled a "personal frolic" or otherwise outside the scope of the employer's liability (in tort or contract), the case doesn't get dismissed for failure to name all the proper parties.</p>

<p>One policy goal is to place financial liability as close as possible to the person most likely to have been able to avoid the harm, thus discouraging such risks, without placing the entire burden on individuals employed in hazardous occupations and without artificially limiting potential sources of compensation.</p>


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Answer 2: <p>Other answers have pointed out that the <strong>employer and employee can both be sued</strong>, and the employer is more likely to be insured, or able to pay, for damages. But why would the employer pay to insure the liabilities of its employees? What happens if a negligent employee is wealthy and the employer company is insolvent?</p>
<p>The plaintiff can recover solely from the employee. This follows from the other answers. But the employee may also be able to recover <strong>contribution</strong> or an <strong>indemnity</strong> from the employer. Conversely, an employer may seek contribution from a wealthy employee or well-resourced subcontractor. Because an employer may be partly or wholly liable for its employees' negligence, even if the plaintiff chooses not to sue the employer, it is rational for the employer to insure this risk.</p>


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<p>Whether contribution and indemnity are available depends on your jurisdiction, but you can get a high-level view of the general principles in the US and UK by reading old American law review articles, like Bohlen, '<a href="http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1371&amp;context=clr" rel="nofollow noreferrer">Contribution and indemnity between tortfeasors</a>' (1936) <strong>21</strong>:4 <em>Cornell Law Review</em> 552. It would be better to look at a textbook or cases from your jurisdiction, but they usually cost money. According to Bohlen, writing  in 1936:</p>
<blockquote>


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<blockquote>
<p>The rule which, except as modified by statute, is accepted law in every common-law jurisdiction other than Minnesota, Pennsylvania, Wisconsin, and, probably, Oregon  is that <strong>there can be no contribution between joint tortfeasors</strong> ... the idea that the burden of bearing the loss caused by the tortious misconduct of two or more persons should not be determined by the choice of the injured person, but by a fair distribution among all those responsible for it, has led not only to the enactment of more or less, but generally less, <strong>effective acts allowing contribution in England, in many of the Canadian provinces, and in twelve American states</strong>, but also to an express rejection of the rule in <em>Merryweather v. Nixan</em> [<a href="http://www.commonlii.org/uk/cases/EngR/1799/670.pdf" rel="nofollow noreferrer">(1799) 88 TR 186; 101 ER 1337</a>] by direct decision in Minnesota, Pennsylvania, and Wisconsin, and by a strong dictum in Oregon.</p>


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</blockquote>
<p><strong>Contribution</strong> refers to the right of a joint tortfeasor (somebody who is jointly liable with another for a tort such as <a href="https://en.wikipedia.org/wiki/Negligence" rel="nofollow noreferrer">negligence</a>, such as the employee and employer) to recover a financial contribution from a co-tortfeasor. <strong>Indemnity</strong> simply refers to the right to claim 100% contribution from the co-tortfeasor. Bohlen explains why the doctrine of contribution breaks with the history of common law torts:</p>
<blockquote>


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<p>... the denial of contribution and the concept of tort liability upon which that denial is itself founded have greatly handicapped the intelligent development of the law of torts, and particularly the law of negligence. Had the right to contribution been recognized, particularly had it been made effective through a process by which the one of two co-tortfeasors against whom a separate action was brought could bring the other into court as a co-defendant, the burden of bearing the cost of the liability to which they were both subject could have been fairly divided between them. Had this been done, it would have been more than possible that <strong>the instinctive reaction of the bulk of mankind, that in some way or other the later of two wrongdoers is the more responsible for an accident of which both wrongdoings are a substantial cause, would have found a proper expression by requiring the later of the wrongdoers to pay a larger part of the damages than the earlier</strong>. Not


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of which both wrongdoings are a substantial cause, would have found a proper expression by requiring the later of the wrongdoers to pay a larger part of the damages than the earlier</strong>. Not only would all the intricacies and uncertainties of what the English lawyers call the doctrine of &quot;<em><a href="https://en.wikipedia.org/wiki/Breaking_the_chain" rel="nofollow noreferrer">novus actus interveniens</a></em>&quot; have been avoided, but a far more equitable result would have been attained.</p>


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</blockquote>
<p>It is a principle in <a href="https://en.wikipedia.org/wiki/Equity_(law)" rel="nofollow noreferrer">equity</a> and <a href="https://en.wikipedia.org/wiki/Admiralty" rel="nofollow noreferrer">admiralty</a> and, according to Bohlen, of the common law 'that those who stand in equal risk should bear the burden equally.' So, in many jurisdictions, there is a statute which prescribes a method of adjusting liability between joint tortfeasors whether or not all are sued by the injured party. Local civil procedure may allow defendants to join co-tortfeasors as defendants or third parties to the principal action.</p>
<h3>Is it true that someone (even if low level), similarly needs to have &quot;standing&quot; (or its equivalent) to be a defendant, and if so, what constitutes such &quot;standing?&quot;</h3>


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<p>Generally, a defendant does not need to have standing. However, a civil claim must plead a <a href="https://en.wikipedia.org/wiki/Cause_of_action" rel="nofollow noreferrer">cause of action</a> against each defendant. For example, an employee might be named as a defendant because he or she was personally negligent, and the employer might be named on the basis of its vicarious liability for the employee's negligence. If no cause of action exists, even assuming the facts asserted by the plaintiff, then the defendant may be able to <a href="https://en.wikipedia.org/wiki/Demurrer" rel="nofollow noreferrer">demur</a> to the claim or seek <a href="https://en.wikipedia.org/wiki/Summary_judgment" rel="nofollow noreferrer">summary judgment</a>, depending on the relevant court's <a href="https://en.wikipedia.org/wiki/Civil_procedure" rel="nofollow noreferrer">civil procedure</a>.</p>


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Answer 3: <p>This is an interesting question that highlights the nature of liability for low- and mid-level employees for a corporate act, which I have been researching. In this case, with Captain Joseph Hazelwood being charged with negligent discharge of oil, the charges are so because an employee can be liable for their own actions even if the employer has liability for acts of its employees. </p>

<p>In most cases, the employer will insure acts or omissions while not insuring personal frolic or cases of serious neglect. However, the employee can recover indemnity from the employer, just as an employer can seek contribution from a wealthy employee. As a result, it's rational for employees to insure the risk of employee negligence, since the employer can be partly or wholly liable as well.</p>


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<p>More complex issues arise when a court tries to find whether the employee is liable or whether they were simply following the orders of their superior. If that employee does not have the money or insurance to pay, as the employer likely would, then litigation will likely not be worthwhile. In the case of Hazelwood, there was evidence that his own contributed to the 1989 oil spill, though his conviction of a lesser charge and fine of $50,000 is relative to his wealth and resources, which were less than that of his employer at the time.</p>


Answer 4: <p>Employer and employee are both liable, and can both be sued. However, there are two problems with suing the employee: One, the employee may be found not liable if all he did was following the orders of his boss. Two, winning a case is not enough if you are after money - you need to win a case against someone who has either money or an insurance that will pay. </p>


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<p>So the employee can be sued, and sued successfully (in principle), but often one would not bother. </p>


Answer 5: <p>The employee can be sued if the employee personally participated in committing a tort, or entered into a contract as an undisclosed agent of the corporation. </p>

<p>While this is rarely an issue for a solvent large corporation, employees are often the more desirable defendant in a thinly capitalized closely held corporation in which the wealth owner of the corporation does a lot of the work in do it yourself manner.</p>

<p>This could include a breach of a legal duty owed by an officer or director that ran directly to a shareholder (although most such duties run only to the corporation and not to individual shareholders and could only be enforced by the corporation or by shareholders bringing a derivative action).</p>


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<p>An employee is not liable for breach of contract when entering into a contract as a disclosed agent of the corporation. Similarly, an employee could not be held liable purely as a consequence of a corporation's ownership of property (e.g. potentially responsible party liability under CERCLA, the Superfund law).</p>

<p>Fraud is a tricky area. The <em><a href="https://www.supremecourt.gov/opinions/10pdf/09-525.pdf" rel="nofollow noreferrer">Janus</a></em> case held that for purposes of federal securities laws, an employee or agent who knowingly drafts a false offering statement issued in the name of the company and not any employee or agent, that only the company has federal securities law liability, but the rule is the opposite in most cases for state common law fraud liability, under which both the named author of the fraudulent statement and anyone who participated in drafting it could be held liable.</p>


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<p>An employee could also be held liable on a fraudulent transfer theory if the employee was given corporate property by the corporation when it was insolvent that was not supported by reasonably equivalent consideration.</p>

<p>Certain statutes also create personal liability for employees. For example. under the Internal Revenue Code a person who is responsible for writing checks withholding taxes from employees has personal liability to the U.S. government if the tax is not withheld as required by law.</p>

<p>Even when an employee is not liable to a third party, an employee or agent can be liable to a company for breaching a duty owed to the company (e.g. a duty not to disclose trade secrets pursuant to a non-disclosure agreement).</p>


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<p>An employee or agent can also be responsible to a company for causing a company to be bound to an agreement because the employee or agent has "apparent authority" to do so, even though the employee or agent didn't have actual authority to do so, if the overstepping of the employee or agent's boundaries causes harm to the company.</p>

<p>The rules are different for government employees who have sovereign immunity for most of their acts not specifically excepted by statute unless they constitute intentional violations of civil rights for which they have no qualified immunity.</p>

<blockquote>
  <p>The perpetrator of the accident was one Captain Joseph Hazelwood of
  the vessel. From what I understand, he was sued, even though he was a
  "mid level" employee. Was it his tie to the incident that allowed him
  to be sued?</p>
</blockquote>

<p>He would have liability as a consequence of his own personal negligence.</p>


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<p>He would have liability as a consequence of his own personal negligence.</p>

<blockquote>
  <p>Change the facts some. A janitor or plumber working for a contracting
  agency in "servicing" a client negligently flipped a switch that
  caused the client's building to be burned down. I would imagine that
  the agency could be sued. Can that person also be sued, or is s/he too
  "low level" for this?</p>
</blockquote>

<p>Yes. The employee whose negligent act caused the problem could be sued.</p>

<blockquote>
  <p>Put another way, my understanding is that a person needs to have
  "standing" in order to be a plaintiff in a case. Is it true that
  someone (even if low level), similarly needs to have "standing" (or
  its equivalent) to be a defendant, and if so, what constitutes such
  "standing?"</p>
</blockquote>


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<p>There is no equivalent to standing for defendants. They either have liability under a theory brought by a plaintiff (which generally requires a causal connection pursuant to a breach of duty by the defendant), or one doesn't. Standing need not be shown to raise an affirmative defense.</p>


Tags: united-states, corporate-law, litigation


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Question Title: How to find out if photocopying a marriage certificate is legal in my state?

Question Body: <p>For my insurance, I must submit a copy of my marriage certificate. The insurance specified that an unofficial photocopy would suffice, but also gave a warning that it is illegal to photocopy this in some states.</p>
<p>So my next question was: Am I in a state allows photocopying or not? Googling didn't lead me to an obvious answer, so I called up the probate court and asked them. The person answered &quot;I don't know&quot; and couldn't make a recommendation on who to contact to find out.</p>
<p>Is there a quick and easy way to determine if my state (in the USA) allows photocopying of a marriage certificate?</p>


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Answer 1: <p>There are quick and easy ways, and reliable ways. Hiring a lawyer is reliable. Googling &quot;can I copy a marriage certificate in ___&quot; is quick and easy, and unreliable. <a href="https://www.sccwi.gov/713/Protect-your-Vital-Records" rel="nofollow noreferrer">St. Croix county WI</a> claims that &quot;It is illegal for anyone, including you, to copy Wisconsin vital records&quot;. There are a few other Wisconsin governmental sites that support that claim <a href="https://dpi.wi.gov/sites/default/files/imce/sspw/pdf/birthrecord.pdf" rel="nofollow noreferrer">like this</a>. What you really want is to see the actual statute, which you might get by Googling &quot;wisconsin statutes copy vital records&quot;, which will lead you to <a href="https://docs.legis.wisconsin.gov/statutes/statutes/69/i/21" rel="nofollow noreferrer">the actual statute</a>. Then read 69.21.</p>


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<p>One thing you will note is that there are requirements for certified copies of records, but no prohibitions: that is, the statute does not say &quot;It is forbidden to photocopy a certified copy of a vital record&quot;. But wait: a couple of paragraphs down, 69.24 lists penalties, mentions that &quot;if you do X, you will be penalized&quot;. Specifically, it is a felony if</p>
<blockquote>
<p>Other than as authorized under ss. 69.21 (2) (d) and 69.30 (3),
prepares or issues any paper or film which purports to be, or carries
the appearance of, an original or a copy of a vital record, certified
or uncertified, except as provided under this subchapter or s. 610.50
and except for any hospital which issues any written announcement of
the birth of a person to the parents of the person if the announcement
contains plain notice that the announcement is not for official use.</p>
</blockquote>


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the birth of a person to the parents of the person if the announcement
contains plain notice that the announcement is not for official use.</p>
</blockquote>
<p>So it turns out to be true in Wisconsin, but it's not quick and easy to verify the claim. In <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=70.58.082" rel="nofollow noreferrer">Washington</a>, &quot;No person may prepare or issue any vital record that purports to be an original, certified copy, or copy of a vital record except as authorized in this chapter&quot;, which means that you have to read the chapter to see if there is authorization for you to make a photocopy of an uncertified copy, for insurance purposes. As far as I can determine, nothing specifically allows making your own copy. The general rule is, look for actual citations of statutes and not unsupported conclusions about what the law says.</p>


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Question Body: <p><a href="https://www.gov.uk/police-powers-of-arrest-your-rights" rel="nofollow noreferrer">From the UK Government website:</a></p>
<blockquote>
<p>The police arrest procedure</p>
<p>If you’re arrested the police must:</p>
<ul>
<li>identify themselves as the police</li>
<li>tell you that you’re being arrested</li>
<li>tell you what crime they think you’ve committed</li>
<li>explain why it’s necessary to arrest you</li>
<li>explain to you that you’re not free to leave</li>
</ul>
</blockquote>
<p><a href="https://www.bbc.com/news/uk-65507435" rel="nofollow noreferrer">From the current news of the protests over the coronation:</a></p>
<blockquote>
<p>Anti-monarchy group Republic's chief arrested at Coronation protest</p>
<p>Six demonstrators, including Mr Smith, were arrested by police while unloading placards near the Coronation procession route, the group said.</p>
<p>Republic posted photos of officers taking details from them on Twitter.</p>


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<p>Republic posted photos of officers taking details from them on Twitter.</p>
<p>&quot;So much for the right to peaceful protest,&quot; the group said, adding the officers would not give the reasons for their arrest and confirmed their CEO was among them.</p>
</blockquote>
<p>Given that the police identify themselves as the police, tell you that you’re being arrested and explain to you that you’re not free to leave but do not tell you what crime they think you’ve committed or explain why it’s necessary to arrest you even after that information is requested and enough time has past that any other urgent business has been conducted, is that a legal arrest or not?</p>


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<p>A similar case where it was ruled the the arrest was not legal would be <a href="https://www.walesonline.co.uk/news/wales-news/youre-clever-little-internet-freak-25191236" rel="nofollow noreferrer">Police inspector Dean Gittoes</a> where a police officer was found guilty of assault for making an unlawful arrest.  This would indicate the officers involved could face legal consequences if the arrest was not legal.</p>


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Answer 1: <p>I have not read the news report so cannot comment on the alleged offences and police conduct, but what I can say is that the information to given on arrest may be found at <a href="https://www.legislation.gov.uk/ukpga/1984/60/section/28?timeline=false" rel="nofollow noreferrer">section 28</a> Police and Criminal Evidence Act 1984 (PACE):</p>
<blockquote>
<p>(1) Subject to subsection (5) below, where a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest.</p>
<p>(2) Where a person is arrested by a constable, subsection (1) above applies regardless of whether the fact of the arrest is obvious.</p>
<p>(3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, <strong>or as soon as is practicable after, the arrest.</strong></p>


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<p>(4) Where a person is arrested by a constable, subsection (3) above applies regardless of whether the ground for the arrest is obvious.</p>
<p>(5) Nothing in this section is to be taken to require a person to be informed—</p>
<ul>
<li><p>(a) that he is under arrest; or</p>
</li>
<li><p>(b) of the ground for the arrest,if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given.</p>
</li>
</ul>
</blockquote>
<p>Note the provisions at subsection (3) do not require anyone else to be told the grounds (reasons) at the time of arrest - including members of the public, protesters, bloggers or the press. Kerb-side debates can seriously or significantly distract the officer from ensuring e.g. public safety or preventing e.g. an escape from custody.</p>


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<p>Also, depending on what else is going on e.g. say in a dynamic and volatile crowd control or public order situation, the person under arrest does not need to told immediately if it would be impractical to do so.</p>
<p>The operative phrase being <strong>as soon as is practicable</strong>, which is not defined by statute as each case needs to be considered individually according to its own set of circumstances.  The relevant case law is <em>DPP v Hawkins [1988] 1 WLR 1166</em>, but the only detailed commentary I can find online is behind the <a href="https://www.pnld.co.uk/" rel="nofollow noreferrer">PNLD paywall</a><sup>1</sup>.</p>


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<p>Succinctly, the magistrates initially dismissed the case against Hawkins for assaulting four police officers who kept him under arrest without giving the grounds as required by s.28(3) PACE. The DPP appealed, and the Court of Appeal sent the case back to the magistrates saying, <em>inter alia</em>, although there is an obligation under s.28(3) to tell a prisoner of the reason for his arrest as soon as possible (<em>sic</em>) after his arrest, a constable was also under an obligation to maintain that arrest <strong>until it was practicable to do so.</strong></p>
<hr />
<p><sup>1</sup>Or free to law enforcement officers</p>


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Question Body: <p>Would a contract (such as an NDA or non-disparagement agreement) be enforceable if it prevents a person from talking to the authorities such as:</p>
<ol>
<li>the police</li>
<li>the labour board</li>
<li>starting a lawsuit</li>
<li>responding to a subpoena</li>
</ol>
<p>I noticed a common phrase in contracts is &quot;You aren't allowed to do x y z unless required by law&quot;. For example <a href="https://www.nolo.com/legal-encyclopedia/sample-confidentiality-agreement-nda-33343.html" rel="noreferrer">from here</a></p>
<blockquote>
<p>Receiving Party's obligations under this Agreement do not extend to
information that is...is disclosed as required or ordered by a court,
administrative agency, or other governmental body.</p>
</blockquote>
<p>Or another example from <a href="https://www.lawinsider.com/contracts/bNZgtBK8w0#non-disparagement" rel="noreferrer">here</a>:</p>
<blockquote>
<p>Notwithstanding the foregoing, nothing in this Agreement shall


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<blockquote>
<p>Notwithstanding the foregoing, nothing in this Agreement shall
preclude Executive from making truthful statements that are required
by applicable law, regulation or legal process.</p>
</blockquote>
<p>What is the point of such statements? Without them would it be breach of contract for the signer to do something they are legally required to do? Or is the intent of such statements to limit the amount of term found to be unenforceable?</p>


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Answer 1: <h2>No enforceable contract can contain illegal clauses and work</h2>
<p>Contracts can not remove some rights and never can bypass obligations. Talking to the police at times <strong>is</strong> a requirement by law, as is taking to the labor board. Responding to a subpoena is <em>legally forced</em> by the court. An NDA might limit the <em>amount</em> what you can say, and a contract might limit <em>who</em> you can sue, but can not ban you from suing at all.</p>


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<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>, a contract that tries to curtail such requirements would be <strong>Sittenwidrig</strong> and make all clauses that try to limit the rights <em>fully</em> Void and nill <em>ab initio</em> - in fact, it can be used as evidence against the drafting party that they tried to do so. So to stay legal and keep the clause working in the limited fashion where it is not demanded, the clause cuts the contract to explicitly exclude such situations.</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>


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<p>The point of such verbiage is to distinguish legal from illegal disclosures. A contract can prevent a party from disclosing information, and that can include &quot;disclosure to the government&quot;. However, government power to compel disclosure is superior to such contract disclosure. Therefore, for example, a company can be contractually prevented from disclosing information, <em>unless</em> ordered to do so via the courts. Example: I cannot get the name and address of a website owner from an ISP <em>unless</em> I have a subpoena, because the company has promised to not disclose that information otherwise. A legally-forbidden disclosure becomes legally-mandatory by court order. The contract might not specifically limit disclosures to those demanded by the courts, it could also allow disclosures when <em>requested</em> by a government agency, such as the police. Ordinarily, it is legal to not comply with a request for information made by the government, or any other party. It


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disclosures when <em>requested</em> by a government agency, such as the police. Ordinarily, it is legal to not comply with a request for information made by the government, or any other party. It becomes illegal, when it involves disobeying a lawful order. It then comes down to the conditions under which you must comply with a government or third-party interest. You can see this in your examples, from words like &quot;require&quot; and &quot;order&quot;.</p>


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Answer 3: <p>If a contract just said &quot;you cannot do X&quot;, someone bound by such a contract might try to claim that they are prevented by contract when they are legally compelled to do X.</p>
<p>The people who want them to do X (say, the police) would then have to take them to court to get a judge to enforce the law requiring them to do X. The judge would have to rule on what happens when someone is under these two conflicting obligations.</p>


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<p>We all expect that legal obligation like answering formal police questions would take precedence over a contract, and the judge would order the person to comply. It's <em>possible</em> the judge would simply rule that in this specific circumstance that clause of the contract should be ignored and still otherwise applies; this would make the clause have the same effect as if it included &quot;unless required by law&quot; anyway. But it's also possible the judge could rule that the prohibition in the contract was simply invalid, as it was requiring the contracted party to do something illegal (refuse a legal obligation). That would mean the person no longer has any contractual obligation not to do X in other contexts either (or technically never had any obligation, if the provision was ruled to have been invalid from the beginning). Or perhaps the whole contract would be ruled invalid!<sup>1</sup></p>


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<p>The company drafting the contract does not want this. If they also expect that a legal obligation to do X cannot be stopped by a contract, then they don't care about trying to prohibit you from doing X in those circumstances (they know it won't work). The point of adding &quot;unless required by law&quot; is to make sure that the contract doesn't impose obligations that conflict with other laws in the first place. If the conflict can't arise then a judge can't resolve it by throwing out (part or all of) the contract, so the person's obligations under the contract will continue to be enforceable in other circumstances.</p>
<hr />
<p><sup>1</sup> Most contracts I have signed contained provisions saying that the parties agreed that if any provision of the contract was found to be unenforceable that the rest would stand, which I assume is specifically to try to avoid the scenario where the whole contract is deemed invalid.</p>


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Answer 4: <p>You can certainly answer a query from police or a subpoena by responding that you are contractually prohibited from answering that question due to your contract with the other party, who you also identify clearly. That won't silence their query of course.</p>
<p>If it is a civil matter and not a criminal investigation, you also notify that party or their legal team... and then the querent and the other party can fight it out amongst themselves.</p>
<p>If it's a criminal matter, you can't leak that to a defendant, so seek advice from <em>your</em> attorney to keep you out of an edge conditon where you breach your contract because you answer a query an overzealous officer was not entitled to make.</p>


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Answer 5: <p><a href="/questions/tagged/italy" class="post-tag" title="show questions tagged &#39;italy&#39;" aria-label="show questions tagged &#39;italy&#39;" rel="tag" aria-labelledby="tag-italy-tooltip-container">italy</a></p>
<p><a href="http://www.senato.it/sites/default/files/media-documents/ROSSA_Costituzione_testo%20vigente_agg_7_11_2022.pdf" rel="nofollow noreferrer">Italian Constitution</a> prohibits this. In particular there are the following articles that deal with it:</p>
<blockquote>
<p>Art. 23.</p>
<p>Nessuna prestazione personale o patrimoniale
puo` essere imposta se non in base alla legge.</p>
<p>Art. 24.</p>
<p>Tutti possono agire in giudizio per la tutela dei
propri diritti e interessi legittimi.
La difesa e` diritto inviolabile in ogni stato e
grado del procedimento.
Sono assicurati ai non abbienti, con appositi
istituti, i mezzi per agire e difendersi davanti ad
ogni giurisdizione.
La legge determina le condizioni e i modi per la


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grado del procedimento.
Sono assicurati ai non abbienti, con appositi
istituti, i mezzi per agire e difendersi davanti ad
ogni giurisdizione.
La legge determina le condizioni e i modi per la
riparazione degli errori giudiziari.</p>
<p>Art. 25.
Nessuno può essere distolto dal giudice natu-
rale precostituito per legge.
Nessuno puo` essere punito se non in forza di
una legge che sia entrata in vigore prima del fatto
commesso.
Nessuno può essere sottoposto a misure di sicu-
rezza se non nei casi previsti dalla legge.</p>
</blockquote>
<p>Translation (taken from the <a href="http://www.senato.it/sites/default/files/media-documents/Costituzione_INGLESE_2023.pdf" rel="nofollow noreferrer">official English translation</a> available on Italian Senate website).</p>
<blockquote>
<p>Article 23</p>
<p>No obligation of a personal or financial nature
may be imposed on anyone except by law.</p>
<p>Article 24</p>
<p>Anyone may bring cases before a court of law


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<blockquote>
<p>Article 23</p>
<p>No obligation of a personal or financial nature
may be imposed on anyone except by law.</p>
<p>Article 24</p>
<p>Anyone may bring cases before a court of law
in order to protect their rights under civil and
administrative law.
Defence is an inviolable right at every stage and
instance of legal proceedings.
The poor are entitled by law to proper means
for action or defence in all courts.
The law shall determine the conditions and
forms regulating damages in case of judicial
errors.</p>
<p>Article 25</p>
<p>No one may have their case removed from the
court seized with it as established by law.
No one may be punished other than by virtue of
a law in force at the time the act was committed.
No one may have their liberty restricted save for
as provided by law.</p>
</blockquote>


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No one may be punished other than by virtue of
a law in force at the time the act was committed.
No one may have their liberty restricted save for
as provided by law.</p>
</blockquote>
<p>So in general these article prohibit that a private agreement could go against the law, even if all the parties involved sign a contract without being under duress or coercion.</p>
<p>In particular our civil code has an article <a href="https://www.brocardi.it/codice-civile/libro-quarto/titolo-ii/capo-xi/art1418.html" rel="nofollow noreferrer">(art.1418)</a> that explicitly regulates when a contract is intrinsically void (sorry for not being able to cite the text, but it links to a host of other articles of the code and general law concepts).</p>
<p>For example, one of those articles is <a href="https://www.brocardi.it/codice-civile/libro-quarto/titolo-ii/capo-ii/sezione-iii/art1346.html" rel="nofollow noreferrer">art.1346</a> which states:</p>
<blockquote>


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<blockquote>
<p>L'oggetto del contratto deve essere possibile, lecito, determinato o determinabile.</p>
</blockquote>
<p>Translation by me (emphasis mine):</p>
<blockquote>
<p>The object of the contract must be possible, <strong>licit</strong>, determinate or determinable.</p>
</blockquote>
<p>So this article renders void contracts where you, for example, renounce a civil right.</p>
<p>NDAs are possible, though, if their object is <em>determinate</em>. In other words, you can legally agree to avoid disclosing informations (e.g. specific trade secrets), but you cannot agree to renounce your free-speech right or to renounce the right to call the authorities if you discover some illegal behavior covered by the terms of the contract.</p>


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Question Title: How are parole boards formed?

Question Body: <p>Are they legally trained? Do they have oversight, like in the form of avenues for appeal from their decisions?</p>
<p>Are they selected from the lay public like a jury?</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>This is a matter of state law in the United States and varies considerably from state to state, with the parole board being particularly powerful in states with indeterminate sentencing as their primary option.</p>
<blockquote>
<p>Are they selected from the lay public like a jury?</p>
</blockquote>
<p>No.</p>
<blockquote>
<p>How are parole boards formed?</p>
</blockquote>
<p>Typically, a parole board is provided for either in the state constitution as implemented in a state statute, or entirely in a state statute.</p>


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<p>How are parole boards formed?</p>
</blockquote>
<p>Typically, a parole board is provided for either in the state constitution as implemented in a state statute, or entirely in a state statute.</p>
<p>Typically, parole boards are appointed in a manner set forth in a statute for fixed year terms, often, but not always, by a state governor, with or without legislative ratification of that decision.</p>
<blockquote>
<p>Do they have oversight, like in the form of avenues for appeal from
their decisions?</p>
</blockquote>
<p>Very little.</p>
<p>If a parole board fails to follow a procedural requirement of the law or ignores a mandatory statute, an adversely affected inmate can seek relief in a court of law.</p>


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<p>Very little.</p>
<p>If a parole board fails to follow a procedural requirement of the law or ignores a mandatory statute, an adversely affected inmate can seek relief in a court of law.</p>
<p>For example, if the relevant statute says that a parole hearing must be held within 60 days of parole eligibility and then at least once every two years thereafter, and no hearing is held by an applicable deadline, an inmate might bring a lawsuit to compel the parole board to conduct a parole hearing for the inmate.</p>
<p>But, discretionary decisions of parole boards on the release or non-release of an inmate are reviewed only for the most extreme abuse of discretion.</p>
<p>Judicial review of a parole board decision is generally not in the nature of an appeal the way that an appeal of a trial court decision would be. Instead, typically, a new lawsuit alleging misconduct by the parole board would be filed.</p>


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<p>In some states, a parole board decision can be overridden by a Governor's decision to pardon an inmate or commute the inmate's sentence, but in many states that have parole boards the Governor's decision to pardon or parole someone must involve the parole board which is a board of pardons and paroles.</p>
<blockquote>
<p>Are they legally trained?</p>
</blockquote>
<p>Most parole board members are not legally trained, but some may be. Legal training is generally not a requirement to serve on a parole board.</p>
<p>Often parole board members will have a mix of backgrounds including law enforcement, corrections, and mental health services, as well as prominent members of the general public, such as current or former politicians.</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>The Parole Board of Canada members are <a href="https://federal-organizations.canada.ca/profil.php?OrgID=PBC&amp;t=2&amp;lang=en" rel="nofollow noreferrer">listed here</a> and are <a href="https://appointments.gc.ca/prsnt.asp?menu=2&amp;page=gicIntro&amp;lang=eng" rel="nofollow noreferrer">appointed by the Governor in Council</a> for periods of membershp of up to ten years.</p>


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<p>The Parole Board of Canada (which is an administrative board) has an internal Appeal Division. An offender can apply for judicial review of the Parole Board Appeal Division's decision in Federal Court. See generally &quot;<a href="https://www.canada.ca/en/parole-board/corporate/publications-and-forms/conditional-release-appeal-of-a-pbc-decision.html" rel="nofollow noreferrer">Appeal of a PBC Decision</a>.&quot;</p>


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Answer 3: <p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="tag-new-south-wales-tooltip-container">new-south-wales</a></p>
<blockquote>
<p>As at March 2022, the SPA consists of 8 judicial officers, 6 official members (4 serving police officers and 3 community corrections officers) and 16 community members.</p>
</blockquote>
<p>So, yes, the judicial officers are legally trained. The police and corrections officers also have training in policing and imprisonment respectively. The community members are not.</p>
<blockquote>
<p>The SPA sits in panels of five members for every private parole meeting and every public review hearing.</p>
</blockquote>
<blockquote>
<p>Each panel of five members comprises is a judicial officer, police officer, community corrections officer and two community members.</p>
</blockquote>
<blockquote>


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</blockquote>
<blockquote>
<p>Each panel of five members comprises is a judicial officer, police officer, community corrections officer and two community members.</p>
</blockquote>
<blockquote>
<p>Decisions do not need to be unanimous but must be a majority vote of the members.</p>
</blockquote>
<p>If the SPA decides not to grant parole, it must notify the offender of its decision and that the opportunity for a hearing is available to review the decision.</p>
<p>Following that hearing, avenues of appeal are <a href="https://criminalcpd.net.au/wp-content/uploads/2016/09/Parole_FAQ__Bharan_Narula.pdf" rel="nofollow noreferrer">limited</a>:</p>
<blockquote>
<p>There is no automatic appeal from a decision of the SPA on merits. There are two
avenues of appeal:</p>
<ol>
<li><p>If the SPA has made a decision based on false, misleading or irrelevant
information, an inmate can apply to the Supreme Court for a direction to be given
to the SPA. See s. 155 and s. 176 of the Act.</p>
</li>


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information, an inmate can apply to the Supreme Court for a direction to be given
to the SPA. See s. 155 and s. 176 of the Act.</p>
</li>
<li><p>Prerogative relief pursuant to s. 69 of the Supreme Court Act if the SPA has
made an error of law. See for example <em>Esho v Parole Board Authority of NSW</em>
[2006] NSWSC 304 per Rothman J.</p>
</li>
</ol>
</blockquote>
<p>&quot;The Act&quot; being the Crimes (Administration of Sentences) Act 1999 (NSW)</p>


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Question Body: <p>I know someone who went to purchase a brand new car from a dealer in the US. The customer came in with an internet ad and asked to test drive the car listed. After the test drive, she paid for it. But when she returned outside, and got in the new car, she found inside was different. Less features. Less comfortable wheel and seats.</p>
<p>The dealer argued they make an honest mistake with the test drive, but they sold the customer the car they asked for, the one from the internet ad. They think the buyer must have been aware the car they test drove was too nice.</p>
<p>The customer though thinks they deserve the car from the test drive, even if it was a mistake, because they first tested it and immediately paid five minutes later.</p>
<p>Update 1: To clarify, this was a brand new car, not a used car.</p>


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<p>Update 1: To clarify, this was a brand new car, not a used car.</p>
<p>Update 2:  The VIN on the contract matches the VIN of the car the customer received. The customer didn't expect she'd get a different car, so didn't think to check VINs before signing the paperwork.</p>
<p>Update 3: The customer remembered the test drive car's mileage, as it was a unique number. Weirdly, <em>the contract lists the mileage of the test driven car, not the mileage of the car she received.</em> When she was signing the paperwork, this just supported her idea that everything was fine.</p>
<p>Was this a breach of contract? Is the customer entitled to the online ad car or the one in the test drive? What law supports this?</p>


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Answer 1: <p>As described, this may be a form of illegal bait-and-switch advertising, but not breach of contract. The contract states the specific vehicle to be sold, which does not match the test-driven car. If the dealer had listed the better car's VIN in the contract but supplied a different car, that would be breach of contract.</p>


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<p>Whether it is illegal advertisement depends on the representations and disclaimers made by the dealer. To the extent that the dealer supplied indications that there was a difference between the test model and the purchase model, or to the extent that the customer should have known that the test car had features not found in the specific model that the customer believed he was buying and paying for, the dealer was being non-deceptive. To the extent that the dealer holds that selling model X instead of model Y is an &quot;honest mistake&quot; on their part, the dealer was being deceptive (or, was plainly in breach of contract). It's hard to see what &quot;honest mistake&quot; the dealer might have made, but perhaps the mistake was &quot;not being clearer to the customer that they had test-driven a fancier model, not the one that they were actually buying&quot;.</p>


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<p>The customer's attorney could pursue this matter and either get the better car, or get a better financial deal, but it really hinges on who said / wrote what (and has a more believable story about what was said).</p>


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Answer 2: <p>Simplistically, here in the UK it's rather clear that if a customer acts on information you provided; more so in a professional capacity then what goes wrong is your responsibility.</p>
<p>Logically, the same should be true everywhere and if it's not, the why of that is beyond me, for one.</p>


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Answer 3: <p>No way in heck you are going to enforce performance and get the car you test drove when you signed a contract for another car, but no way they can make you pay for the car you didn’t think you were getting either.</p>
<p>I hope your friend refused to take possession of it and isn’t driving it now and hoping it will just “get fixed” because that tends to indicate acceptance of the contract they signed.</p>
<p>You can demand a refund and to void the contract and you would have an excellent case for that.  If they don’t agree and your friend can show that there was every reason to believe they were getting the car they test drove, that won’t go well for them especially if there is an error on the odomoeter reading.</p>


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<p>Your friend can also report them to the BBB and to their state’s attorney general for trying to pull a bait and switch.   Individual states may also have special laws for situations like this.   You don’t mention what state your friend lives in, but I’m not a lawyer anyway so they probably want to talk to one after doing some googling.</p>


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Question Title: Is it legal for a company to enforce price minimums in the USA?

Question Body: <p>When exporting from Europe to the USA but not sourcing directly from the manufacturer, it is common to receive communications from companies along the lines</p>
<p>(1) in the USA we have a minimum price policy, which you are breaking/you have to source from our US supplier</p>
<p>(2) We forbid export of this product to the USA/it can only be done through authorized channels.</p>
<p>Is it the case that a company is allowed to prevent export of an identical product from a different country. Or is this anticompetitive behaviour which legislation prevents?</p>


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Answer 1: <p><strong>It didn’t work for Nintendo</strong></p>
<p>Nintendo used to have a policy of setting minimum retail prices for its products. If retailers didn’t comply, Nintendo would decrease or eliminate their supply.</p>
<p>In 1991, the FTC investigated Nintendo for price fixing, and Nintendo agreed to pay some money back and to reframe the minimum price as more of a “suggestion.”</p>
<p>Technically, this was a settlement, so the courts didn’t actually rule against (or in favor of) Nintendo. But being investigated by the FTC is already pretty serious.</p>
<p><a href="https://www.upi.com/amp/Archives/1991/04/10/Nintendo-gives-coupons-to-settle-price-fixing-case/5169671256000/" rel="nofollow noreferrer">https://www.upi.com/amp/Archives/1991/04/10/Nintendo-gives-coupons-to-settle-price-fixing-case/5169671256000/</a></p>


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Answer 2: <p>It may be legal. Before <a href="https://supreme.justia.com/cases/federal/us/551/877/" rel="nofollow noreferrer">Leegin Creative Leather Products, Inc. v. PSKS, Inc.</a>, 551 U.S. 877 (2007) it was illegal since 1911 under <a href="https://supreme.justia.com/cases/federal/us/220/373/" rel="nofollow noreferrer">Dr. Miles Medical Co. v. John D. Park &amp; Sons Co.</a>, 220 U. S. 373 which held that minimum pricing was <em>per se</em> illegal. Leegin overturned that ruling. The basic engine behind this decision is antitrust legislation (§1 of the Sherman Antitrust Act), and the premise that manufacturer price controls might reduce competition. Now the matter must be decided on the basis of judged based on the <a href="https://en.wikipedia.org/wiki/Rule_of_reason" rel="nofollow noreferrer">rule of reason</a>, which is a doctrine saying how that act is to be interpreted. Now,</p>


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<p>The accepted standard for testing whether a practice restrains trade in violation of §1 is the rule of reason, which requires the factfinder to weigh &quot;all of the circumstances&quot;. This</p>
<blockquote>
<p>rule distinguishes between restraints with anticompetitive effect that
are harmful to the consumer and those with procompetitive effect that
are in the consumer’s best interest. However, when a restraint is
deemed &quot;unlawful per se,&quot; ibid., the need to study an individual
restraint’s reasonableness in light of real market forces is
eliminated. Resort to per se rules is confined to restraints &quot;that
would always or almost always tend to restrict competition and
decrease output.&quot; Thus, a per se rule is appropriate only after courts
have had considerable experience with the type of restraint at issue</p>
</blockquote>
<p>Bear in mind that states can also have separate antitrust laws.</p>


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have had considerable experience with the type of restraint at issue</p>
</blockquote>
<p>Bear in mind that states can also have separate antitrust laws.</p>
<p>A manufacturer could independently make price guidelines part of their agreement with retailers, and can stop dealing with sellers who do not follow the policy, on a &quot;take it or leave it&quot; basis. Violating a price-suggestion is not directly actionable, but can legally result in a &quot;we won't deal with you anymore&quot; response. Antitrust issues arise if manufacturers conspire to get a result, or if retailers conspire. On the face of it, forbidding importation to the US except through a specific channel smells strongly of anticompetitive behavior.</p>


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Question Title: Would returns from investing in stocks cause one to reach the tax barrier on a student visa?


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Question Body: <p>As far as I understand, one can earn about 850ish euros per month (as of 2023) without tax on a student visa <a href="https://www.ue-germany.com/news-centre/blog/how-much-am-i-allowed-to-earn-as-a-student" rel="nofollow noreferrer">source</a>. Also, I learned that investing while on a student visa as a non EU international is something which is <a href="https://www.reddit.com/r/germany/comments/q7wm12/can_noneu_internation_students_invest_in_germany/" rel="nofollow noreferrer">commonly done</a>. So, I want to ask the question, suppose I earn 850 euros a month from the gains on investing (probably not going to happen, I know), then would this mean all further income I may earn from part time is taxed?</p>
<p>I would believe the answer is yes, because I think stock profit is considered under income tax, but I haven't found anywhere explicitly stating this, hence the question.</p>


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Answer 1: <p>There is no limit on how much you can earn. There is a limit on how many hours you can work, though. Student visas require that you have given proof of sufficient means prior to coming to Germany, generally via a blocked account. As a foreign student in Germany, you are typically allowed to work up to 120 full days per calendar year (or 240 part-time days). See also the <a href="https://www.reddit.com/r/germany/wiki/studying/financing/#wiki_working" rel="nofollow noreferrer">r/germany wiki on working as a student</a>.</p>


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<p>Of course, that work is then subject to German rules. There is the &quot;working student&quot; privilege that exempts the employer from social security contributions if you're primarily a student, i.e. work at most 20 hours per week during lecture periods. Income will be taxed normally, which means that &quot;minijobs&quot; have simplified deduction rules that make them effectively tax-free for you. Regardless of how you earn income, the first ~10k have a 0% tax rate.</p>
<p>And you can also make money from capital gains (e.g. sales, dividends, and holding accumulating funds). The tax is not going to be the problem here (only the profit is taxed. First ~1k per year are tax-free. Beyond that, taxed with a flat rate of 25%, or optionally with your income tax rate, which is likely to be better). Rather, the problem is going to be filing the taxes correctly. Potential complicating factors:</p>
<ul>


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<ul>
<li>holding assets with a non-German broker (German brokers will generate a suitable summary of your capital gains for you)</li>
<li>holding non-EU funds (EU funds (e.g. using the UCITS legal structure) have drastically simplified taxation)</li>
<li>declaring losses</li>
<li>trading non-stock assets such as crypto (different tax rules)</li>
<li>having US residency or citizenship (most banks don't want to work with you)</li>
<li>double taxation issues</li>
</ul>


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Question Body: <p>State: Arkansas.</p>
<p>A parent wishes to obtain joint custody for a 3-year-old child. What are the minimum requirements for the following:</p>
<ol>
<li><strong>Apartment:</strong> Is it necessary for a parent to have a 2-bedroom apartment, or is a 1-bedroom apartment sufficient?</li>
<li><strong>Employment:</strong> Must a parent be employed, or is being unemployed acceptable?</li>
<li><strong>Income:</strong> Is there a minimum income requirement for a parent?</li>
<li><strong>U.S. Residency:</strong> Does a parent need to possess legal U.S. residency status (e.g., a green card), or is it acceptable for a parent to be a foreign citizen with a pending USCIS application that may or may not be approved?</li>
<li><strong>Budget:</strong> Must a parent demonstrate that their total monthly expenses are lower than their total monthly income?</li>
<li><strong>Transportation:</strong> Is it necessary for a parent to possess a car and be able to drive?</li>


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<li><strong>Transportation:</strong> Is it necessary for a parent to possess a car and be able to drive?</li>
<li><strong>Language:</strong> Must a parent be fluent in English?</li>
<li><strong>Housing:</strong> Is it acceptable for a parent to reside in a location designated as temporary housing for low-income individuals, and not intended for permanent residence?</li>
<li><strong>Address Disclosure:</strong> Is it required for a parent to disclose their address to the other parent, or can it be withheld from the other joint custody parent?</li>
<li>Are there any other minimum conditions?</li>
</ol>
<p><strong>If possible, kindly provide official &quot;.gov&quot; links for reference.</strong></p>


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Answer 1: <h3>Short answer</h3>
<blockquote>
<p>What are the minimum requirements for obtaining joint custody in
Arkansas?</p>
</blockquote>
<p>To slightly oversimplify:</p>
<ol>
<li><p>The child has two legally recognized parents who both participate in the court case regarding custody.</p>
</li>
<li><p>Neither parent of the child has engaged in domestic violence or committed a sex offense.</p>
</li>
<li><p>The party seeking joint custody does not consent to a different custody arrangement.</p>
</li>
<li><p>Admissible, clear and convincing evidence that joint custody is contrary to the best interests of the child is not presented to the judge in the custody hearing.</p>
</li>
</ol>
<h3>Long answer</h3>
<p>You understanding of the framework of what matters as a matter of law, and what the law actually says, only vaguely overlap.</p>


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</li>
</ol>
<h3>Long answer</h3>
<p>You understanding of the framework of what matters as a matter of law, and what the law actually says, only vaguely overlap.</p>
<p>Custody in Arkansas and every other U.S. state is determined based upon &quot;<strong>the best interests of the child</strong>&quot; and discretion to decide what is in the best interests of the child is vested almost entirely in a single divorce court judge to decide on a case by cases basis.</p>
<p>Two different judges hearing exactly the same facts in the same courthouse could enter dramatically different orders regarding child custody. There is no one correct answer to child custody questions even if all of the facts are undisputed. Completely different child custody orders could each be affirmed on appeal  and wouldn't even plausibly constitute an abuse of discretion (which is the standard by which appellate courts evaluate trial court custody decisions on appeal).</p>


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<p>There are extreme cases where joint custody either legally can't, or almost never will in practice be granted, such as conduct that is close to child abuse or child neglect, but is not so severe as to give rise to a termination of parental rights. Domestic violence or just extremely contentious relationships between the spouses will also strongly disfavor a joint custody award.</p>
<p>But, in the lion's share of cases, the judge is told to &quot;do the right thing&quot; and does his or her best to do so based upon the evidence marshaled by the parties to the case (and sometimes a guardian ad litem to represent the child or children).</p>
<p><strong>Since July 28, 2021 in Arkansas</strong>, however, due to the enactment of what is commonly known by its session law number &quot;Act 604&quot;, <strong>there is a presumption in favor of joint custody that can only be rebutted by clear and convincing evidence and a few other quasi-criminal factors.</strong></p>


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<p>There is one other overarching factor, which is allowed but not mandated by the case law, that goes beyond (1) &quot;do the right thing&quot; and (2) the presumption in favor of joint custody. This factor is that some judges prefer to establish post-separation custody arrangements that show similarity, to the extent practically feasible, to the arrangements that were in place prior to the separation.</p>
<p>There is no list of factors of the kind suggested in the question. Not in the statutes, not in regulations or formally adopted policies, not even in case law. In particular, factors (1)-(9) of the question are not specifically legally recognized factors in child custody determinations, although there are among the vast range of considerations that could be admitted into evidence to help the judge make a custody determination.</p>
<h3>The text of the relevant Arkansas statute</h3>


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<h3>The text of the relevant Arkansas statute</h3>
<p>The text of the relevant parts of the statute with editorial headings in brackets in bold inserted by me for ease of reading, is as follows:</p>
<blockquote>
<p><strong>[General rules for child custody determinations]</strong></p>
<p>(a)(1)(A)(i) <strong>In an action for divorce, the award of custody of a
child of the marriage shall be made without regard to the sex of a
parent but solely in accordance with the welfare and best interest of
the child.</strong></p>
<p>(a)(1)(A)(ii) In determining the best interest of the child, the court may
consider the preferences of the child if the child is of a sufficient
age and mental capacity to reason, regardless of chronological age.</p>
<p><strong>[Presumption of joint custody]</strong></p>
<p>(a)(1)(A)(iii) <strong>In an action for divorce, an award of joint custody is favored
in Arkansas.</strong></p>
<p>(a)(1)(A)(iv)(a) <strong>In an action concerning an original child custody


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<p>(a)(1)(A)(iii) <strong>In an action for divorce, an award of joint custody is favored
in Arkansas.</strong></p>
<p>(a)(1)(A)(iv)(a) <strong>In an action concerning an original child custody
determination in a divorce or paternity matter, there is a rebuttable
presumption that joint custody is in the best interest of the child.</strong></p>
<p><strong>(a)(1)(A)(iv)(b) The presumption that joint custody is in the best interest of the child may be rebutted:</strong></p>
<p><strong>(a)(1)(A)(iv)(b)(1) If the court finds by clear and convincing evidence that joint custody is not in the best interest of the child;</strong></p>
<p><strong>(a)(1)(A)(iv)(b)(2) If the parties have reached an agreement on all issues related to custody of the child;</strong></p>
<p><strong>(a)(1)(A)(iv)(b)(3) If one (1) of the parties does not request sole, primary, or joint  custody; or</strong></p>


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<p><strong>(a)(1)(A)(iv)(b)(3) If one (1) of the parties does not request sole, primary, or joint  custody; or</strong></p>
<p><strong>(a)(1)(A)(iv)(b)(4) If a rebuttable presumption described in subsection (c) or subsection (d) of this section is established by the evidence.</strong></p>
<p><strong>(a)(1)(A)(iv)(c) The circuit court may enter an order to reduce areas of conflict in a manner determined appropriate by the court.</strong>
. . . [(a)(2) to (a)(4) omitted]</p>
<p><strong>(a)(5) As used in this section, “joint custody” means the approximate and reasonable equal division of time with the child by both parents
individually as agreed to by the parents or as ordered by the court.</strong></p>
<p>(b)(1)(A)(i) When in the best interest of a child, custody shall be
awarded in such a way so as to assure the frequent and continuing
contact of the child with both parents consistent with subdivision
(a)(1)(A) of this section.</p>


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awarded in such a way so as to assure the frequent and continuing
contact of the child with both parents consistent with subdivision
(a)(1)(A) of this section.</p>
<p>(b)(1)(A)(ii) To this effect, <strong>the circuit court shall consider awarding joint
custody of a child to the parents in making an order for custody.</strong></p>
<p>(b)(1)(A)(iii) If, at any time, the circuit court finds by a preponderance of
the evidence that one (1) parent demonstrates a pattern of willfully
creating conflict in an attempt to disrupt a current or pending
joint-custody arrangement and the circuit court is unable to enter an
order that will reduce areas of conflict caused by the disruptive
parent, the circuit court may deem such behavior as a material change
of circumstances and may change a joint custody order to an order of
primary custody to the nondisruptive parent.</p>
<p><strong>[Special rules for deployed military personnel]</strong></p>


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of circumstances and may change a joint custody order to an order of
primary custody to the nondisruptive parent.</p>
<p><strong>[Special rules for deployed military personnel]</strong></p>
<p>(b)(1)(A)(iv) If a modification of a child custody decree is based on
the active duty status of a parent as a member of the United States
Armed Forces deployed outside of the United States or the federal
active duty status of a parent as a member of a state National Guard
or reserve component: (a) Any modification of the child custody decree
shall: (1) Be temporary; and (2) Revert back to the previous child
custody decree at the end of the deployment or federal active duty
unless both parties consent to a modification that continues after the
deployment or federal active duty; and (b) The deployment or federal
active duty status shall be considered the equivalent of daily parental presence and parental involvement with the child.</p>


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deployment or federal active duty; and (b) The deployment or federal
active duty status shall be considered the equivalent of daily parental presence and parental involvement with the child.</p>
<p><strong>[Child support in joint custody cases]]</strong></p>
<p>(b)(1)(A)(v) Child support under a joint custody order is issued at the
discretion of the court and shall: (a) Be consistent with Supreme
Court Administrative Order No. 10 -- Arkansas Child Support
Guidelines; or (b) Deviate from Supreme Court Administrative Order No.
10 -- Arkansas Child Support Guidelines as permitted by the rule.</p>
<p><strong>[Redundant statement of general rule]</strong></p>
<p>(b)(1)(A)(vi) A court shall consider the best interest of the child when making
a child custody determination.</p>
<p><strong>[Parenting time for parents without joint custody, sole custody, or primary custody]</strong></p>
<p>(b)(1)(A)(vii)(a) A parent who is not granted sole, primary, or joint custody


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<p><strong>[Parenting time for parents without joint custody, sole custody, or primary custody]</strong></p>
<p>(b)(1)(A)(vii)(a) A parent who is not granted sole, primary, or joint custody
of his or her child is entitled to reasonable parenting time with the
child unless the court finds after a hearing that parenting time
between the parent and the child would seriously endanger the
physical, mental, or emotional health of the child.</p>
<p>(b) At the request of a party, a court shall issue a written order
that:</p>
<p>(1) Is specific as to the frequency, timing, duration, condition, and
method of scheduling parenting time with a parent who is not granted
sole, primary, or joint custody of his or her child; and</p>
<p>(2) Takes into consideration the developmental age of the child.</p>
<p>. . . [(b)(2) omitted]</p>
<p><strong>[Minimum standards for custody orders when there is not an agreed resolution]</strong></p>


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<p>. . . [(b)(2) omitted]</p>
<p><strong>[Minimum standards for custody orders when there is not an agreed resolution]</strong></p>
<p>(b)(3) After a hearing on the merits of a child custody action, if a
court determines that the presumption in subdivision (a)(1)(A)(iv)(a)
of this section is rebutted, the court shall enter a written order
that includes the following:</p>
<p>(A) Facts, findings, and conclusions of law concerning the basis for
the court's determination; and</p>
<p>(B) A parenting time schedule that: (i) Maximizes the amount of time
that each parent has with the child; and (ii) Is consistent with the
best interest of the child.</p>
<p><strong>[Special rules in domestic violence cases]</strong></p>
<p>(c)(1) If a party to an action concerning custody of or a right to
visitation with a child has committed an act of domestic violence
against the party making the allegation or a family or household
member of either party and such allegations are proven by a


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visitation with a child has committed an act of domestic violence
against the party making the allegation or a family or household
member of either party and such allegations are proven by a
preponderance of the evidence, the circuit court must consider the
effect of such domestic violence upon the best interests of the child,
whether or not the child was physically injured or personally
witnessed the abuse, together with such facts and circumstances as the
circuit court deems relevant in making a directive pursuant to this
section.</p>
<p>(2) There is a rebuttable presumption that it is not in the best
interest of the child to be placed in the custody of an abusive parent
in cases in which there is a finding by a preponderance of the
evidence that the parent has engaged in a pattern of domestic abuse.</p>
<p><strong>[Special rules for sex offenders]</strong></p>
<p>(d)(1) If a party to an action concerning custody of or a right to


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<p><strong>[Special rules for sex offenders]</strong></p>
<p>(d)(1) If a party to an action concerning custody of or a right to
visitation with a child is a sex offender who is required to register
under the Sex Offender Registration Act of 1997, § 12-12-901 et seq.,
the circuit court may not award custody or unsupervised visitation of
the child to the sex offender unless the circuit court makes a
specific finding that the sex offender poses no danger to the child.</p>
<p>(2) There is a rebuttable presumption that it is not in the best
interest of the child to be placed in the care or custody of a sex
offender or to have unsupervised visitation with a sex offender.</p>
<p>(3) There is a rebuttable presumption that it is not in the best
interest of the child to be placed in the home of a sex offender or to
have unsupervised visitation in a home in which a sex offender
resides.</p>
<p><strong>[Guardian <em>Ad Litem</em> appointments]</strong></p>


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have unsupervised visitation in a home in which a sex offender
resides.</p>
<p><strong>[Guardian <em>Ad Litem</em> appointments]</strong></p>
<p>(e)(1) The Director of the Administrative Office of the Courts is
authorized to establish an attorney ad litem program to represent
children in circuit court cases in which custody is an issue.</p>
<p>(2) When a circuit judge determines that the appointment of an
attorney ad litem would facilitate a case in which custody is an issue
and further protect the rights of the child, the circuit judge may
appoint a private attorney to represent the child.</p>
<p>. . . [(e)(3) to (e)(8) omitted]</p>
</blockquote>
<p><strong>Arkansas Code Section 9-13-101</strong> (omitting the provisions of the same section related to grandparent custody claims to simplify the statute to the issue presented by the question and administrative provisions related to court appointed professionals).</p>


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<p>I have not provided a link to the statute and instead provided all of the relevant text of that statute, because the non-paywalled online links I could find to Ark. Code § 9-13-101 pre-dated Act 604 which heavily amended the old statutory language. I founds a link to the full text of Act 604, but that would have to be cut and pasted into the pre-amendment language of the statute to make sense of it.</p>


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Question Body: <p>In the US, bribing federal or state legislators to vote the way you want them to is illegal. But donating (or not donating) to their election campaigns is legal, as is telling them what you want them to do.</p>
<p><strong>Is there any legal way to adopt a policy of political donations designed to encourage a legislature as a whole to make &quot;correct&quot; decisions? Or would any such scheme necessarily be bribery if it were effective?</strong></p>


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<p>For example, say I adopt a policy of downloading all the legislators' votes, determining what I think was the correct vote on each item, and then splitting my pot of political donations in proportion to the number of correct votes. This policy clearly dispenses money to politicians in exchange for votes, so it's bribery, right? But it's also merely allocating my money towards legislators who have demonstrated that they agree with me and away from legislators who don't. So would this be allowed or not? Why would this be bribery but donating to, say, all the legislators who voted such that they weren't thrown out of the Republican party not be bribery?</p>


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<p>Would the calculus change if I took steps to make sure that everyone knows that this is how I allocate my donations, and what my political preferences are? Or if I started publishing some or all of what the &quot;correct&quot; votes on particular bills would be in advance? Would it somehow be legal to allocate donations like this but only if I keep it a secret from the legislators to prevent a <em>quid pro quo</em> relationship?</p>
<p>Why, legally, would a mathematical system of donating to legislators who do the things I want qualify as bribery, while a seemingly equivalent fuzzier system of telling legislators what to do, liking the ones who listen to me, and then donating to the legislators I like, would not be? In either case the legislators can predict my behavior and anticipate that they will receive donations only if they carry out my political preferences.</p>


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Answer 1: <p>See <em>McCormick v. United States</em>, 500 U.S. 257 (1991). A political contribution is only vulnerable as a bribe under the <em>Hobbs Act</em> if the payments are made &quot;in return for an explicit promise or undertaking by the official to perform or not perform an official act.&quot;</p>


Tags: legislature, politics, bribery, campaign-finance


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Question Title: Would an online article suggesting readers to perform piracy constitute &quot;Incitement&quot; under any jurisdition?


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Question Body: <p>This question came to mind while discussing in the Arqade.SE chat rom about some recent scandals related to an online gaming news site.</p>
<p>Back in October 2021 said media posted an article about a recent videogame release, going into details about how to emulate it and how emulation provided a better experience than playing the game on the actual console due to increased resolution and other similar benefits.</p>
<p>The article is fully visible on the Way Back Machine <a href="http://web.archive.org/web/20211009211511/https://kotaku.com/metroid-dread-is-already-running-great-on-switch-emulat-1847833403" rel="nofollow noreferrer">here</a>. Following are the main passages.</p>
<p><a href="https://i.stack.imgur.com/R95oj.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/R95oj.png" alt="enter image description here" /></a></p>


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<p><a href="https://i.stack.imgur.com/R95oj.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/R95oj.png" alt="enter image description here" /></a></p>
<p><a href="https://i.stack.imgur.com/64KoZ.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/64KoZ.png" alt="enter image description here" /></a></p>
<p><a href="https://i.stack.imgur.com/pYcYs.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/pYcYs.png" alt="enter image description here" /></a></p>
<p>So...</p>
<ul>
<li>the first passage jokes about the article being something that could cause them troubles with a &quot;lawyer&quot;</li>


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<p>So...</p>
<ul>
<li>the first passage jokes about the article being something that could cause them troubles with a &quot;lawyer&quot;</li>
<li>the second passage claims that &quot;all you need is a PCand an emulator&quot;. But that is not true: you need also a copy of the game and a modded Switch (since making the &quot;ROM backup&quot; yourself is the only legal way to get a ROM afaik, and even that probably isn't true in every country). The only way to just need an emulator is if you download the game from a pirate site.</li>
<li>the final paragraph takes the prize with the &quot;Thank God for pirates&quot; line</li>
</ul>
<p>Basically the whole article looks like it just advocating for piracy and suggesting that customers should <strong>commit a crime</strong> to &quot;pay less&quot;.</p>
<p>The article caused a lot of controversy, to the point that it was edited just a day later.</p>


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<p>The article caused a lot of controversy, to the point that it was edited just a day later.</p>
<p><a href="https://i.stack.imgur.com/TuURR.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/TuURR.png" alt="enter image description here" /></a></p>
<p>The article was edited again and again, and currently it ends with these notices.</p>
<p><a href="https://i.stack.imgur.com/HzKPY.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/HzKPY.png" alt="enter image description here" /></a></p>
<p>I guess that thanks to Nintendo own involvement things went just &quot;too fast&quot; for actual law enforcers to get on the case, but after the same site was recently involved in another scandal about posting info on a yet-to-be released title that was leaked and thus available illegally on the web I had some exchanges with other users on SE that lead to this question.</p>


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<p>Would the original version of the Metroid article be enough to be consider &quot;Incitement to piracy&quot; and thus be an explicit violation of law in any country? And even if this specific example would not be enough to be acted on, would an hypothetical article that makes the &quot;suggestion&quot; even more explicit violate the laws?<br />
Personally I don't see the original version of the article to be defensible in any way due to the considerations I made before, in my opinion there is no way to interpret the article as anything else than an incitement to pirate the game. But since I am not a lawyer nor a student in laws I would like for a more based view from users with more experience in the area.</p>
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<p>Small clarification: while I have mentioned the revised article for sake of context, please ignore it when answering. My actual question is if the original version without any revision would constitute &quot;Incitement&quot; and in case it would not if a made-up even more direct article could.</p>


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Answer 1: <p>In the US, this might be very defensible.  One could make the argument that the article is critical of Nintendo practices of not releasing old titles unless they were huge sellers and the line &quot;Thank God for Piracy&quot; might be a jab at the fact that Nintendo is leaving money on the table by ignoring an audience that wants to play a legacy title that they decided not to release, and most people don't have the money to buy a legacy system that can play the games they want to play.  It's a provocative statement, which is why Kotaku put the two addendums up at Nintendo's request, but they are stating in the first one that the opinion of the article does not represent the views of Kotaku.</p>


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<p>It's actually understood that many people who enjoy a work would gladly pay for a copy because a strong sale actually shows support for the work.  That is most people would want to purchase something rather than pirate it.  However, if the publisher refuses to release it for a new system, that money is not going to come in.  Whether the fan buys it second hand and plays it on a legacy system OR the fan pirates it on an emulator, that's money that Nintendo won't ever see.</p>
<p>I do agree, the initial read is advocacy of piracy.  However, as an opinion, and one that was cleared up with two corrections to state that Kotaku is not advocating for piracy, it's likely moot for any legal action.</p>


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Question Title: Do governments with Rule of Law sometimes (too broad of word?) hand over their citizens even without extradition treaties?

Question Body: <p>Prompted by <a href="https://law.stackexchange.com/questions/92116/is-it-possible-for-india-to-extradite-its-own-citizens">this question</a>.</p>
<p>For example, officials from Cuba or Iran (or even friendly countries like Taiwan, Ukraine, etc) officials go to US officials, present evidence that one of their nationals committed a crime in the source country then legally (how is irrelevant) entered the US for the long term.</p>
<p>To make it juicy, lets say it was a heinous crime with lots of solid evidence.</p>
<p>Would the US say &quot;sorry, wish we could help, but legally impossible&quot;, or could they arrest him and start extradition proceedings anyway (under some legal theory which I'm unaware of)?</p>


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Answer 1: <p>There are circumstances in which countries that are <a href="https://en.m.wikipedia.org/wiki/Rule_of_law#Status_in_various_jurisdictions" rel="nofollow noreferrer">generally recognized to follow the rule of law</a> will extradite in the absence of a treaty.</p>
<p>For example, the U.S. generally will not extradite absent a treaty, and there are many countries with which the U.S. does not have an extradition treaty. Regardless, <a href="https://www.law.cornell.edu/uscode/text/18/3181" rel="nofollow noreferrer">18 U.S. Code §§ 3181</a> and <a href="https://www.law.cornell.edu/uscode/text/18/3184" rel="nofollow noreferrer">3184</a> leave the executive with the authority to extradite</p>
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<p><strong>without regard to the existence of a treaty</strong>, persons (other than citizens, nationals or permanent residents of the United States), who have committed crimes of violence against nationals of the United States in foreign countries.</p>


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<p>U.S. Department of Justice Manual, <a href="https://www.justice.gov/jm/jm-9-15000-international-extradition-and-related-matters#9-15.100" rel="nofollow noreferrer">9-15.100 -  General Principles Related to Obtaining Fugitives from Abroad</a></p>
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Answer 2: <p>Extradition from the United Kingdom, under the <a href="https://www.legislation.gov.uk/ukpga/2003/41" rel="nofollow noreferrer">Extradition Act 2003</a>, normally happens in the context of an treaty between the UK and the other country, coupled with an official designation by the UK government of that country as either a &quot;Category 1&quot; or a &quot;Category 2&quot; territory. If there isn't such an agreement, ad-hoc arrangements are still possible for a specific proposed extradition. Section 194 of the Act allows the government to deem that place to be a Category 2 territory (possibly with some modifications to the rules) for the purposes of that request only.</p>


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<p>This recently happened for Japan, which wanted to extradite three people from the UK for alleged robbery of a jewellery shop in Tokyo in 2015. This is apparently the first time Japan has proposed such an extradition, and there is no treaty. Instead, the UK government concluded a &quot;memorandum of cooperation&quot; with Japan and issued the  certificate required by Section 194. The three people challenged the legality of the UK government's actions in a judicial review, but lost; <a href="https://www.bailii.org/ew/cases/EWHC/Admin/2022/3281.html" rel="nofollow noreferrer"><em>R (Chappell and Others) v SSHD</em> [2022] EWHC 3281 (Admin)</a>.</p>
<p>For an alleged crime which took place outside the UK, it's also possible in some circumstances for an arrest and prosecution to happen in the UK. That is another potential avenue, aside from extradition, where another country passes information to the UK police and hopes that they will proceed.</p>


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<p>British law would not allow somebody to be arrested and handed over, other than by the process laid down in statute. It is a basic principle that the state is not allowed to detain people outside of the legal structure. Aside from such statutes as the <a href="https://www.legislation.gov.uk/aep/Cha2/31/2" rel="nofollow noreferrer">Habeas Corpus Act 1679</a>, which enacted a general prohibition on the sending of prisoners &quot;into any Parts Garrisons Islands or Places beyond the Seas&quot; and which only another statute could supersede, modern human rights law would not permit this sort of action. In a reverse example, where somebody was abducted from South Africa and brought to the UK outside of a formal extradition process, the House of Lords found that the abduction was such a grave abuse of power that the prosecution could not be allowed to proceed (<em>R v Horseferry Road Magistrates' Court, ex parte Bennett</em> [1994] 1 AC 42).</p>


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Question Body: <p>The media have been reporting on the contents of Justice John Paul Stevens' documents, which have now been made public. <a href="https://edition.cnn.com/2023/05/03/politics/clinton-paula-jones-john-paul-stevens-papers-political-supreme-court/index.html" rel="noreferrer">This article</a> for instance includes excerpts from what seem to be correspondence between the justices—sometimes with an informal tone, clearly not meant to be released.</p>
<p>I'm curious how these documents are produced, and how they are distributed practically. It would otherwise seem like an email exchange between people who work remotely. I've always imagined them as nine people working in the same office building. Do the nine justices continually send written letters to one another? (Is this because they don't always work in proximity to one another?) Are there assistants typing up each person's notes and sending them to the other eight Justices?</p>


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Answer 1: <p>The Justices communicate by exchanging written memoranda, or at least they did during Justice Stevens’ time. See Jeffrey Toobin, <a href="https://en.wikipedia.org/wiki/The_Nine_(book)" rel="noreferrer"><em>The Nine: Inside the Secret World of the Supreme Court</em></a> (2007), p 48:</p>
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<p>Outsiders tend to be surprised by how rarely Supreme Court justices speak to each other, one on one. Under Rehnquist, the nine spent a good deal of time together as a group. Argument days, most Mondays and Wednesdays when they were in session, were preceded by the traditional thirty-six handshakes, each justice with every other, and they had lunch together most of these days as well. There were also conference discussions every Friday during these weeks. <strong>After the conference, however, the justices tended to communicate with one another through memos, which were often drafted by their law clerks.</strong> (After e-mail became ubiquitous, the memos also circulated electronically, but always with paper copies as well; among the justices, only Thomas and Breyer, and eventually Stevens, were fully comfortable communicating by e-mail.)</p>
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<p>Some further detail about the distribution of these memos appears later in an anecdote about <em>Bush v. Gore</em> (p 170):</p>
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<p>Stevens drafted an order of just a few sentences remanding the case to the Florida Supreme Court for the setting of a statewide standard to continue the recount. He sent his messenger scurrying down the marble hallway to Kennedy and the rest of the justices. He heard nothing back, except from Ginsburg, who said she would join if it was a way of bringing the whole Court together. (The rush of events in Bush v. Gore strained the Court's technology, which was, in 2000, still rather primitive. As a security precaution, the e-mail system circulated only within the building. Plus, there was only a single, communal computer from which the justices and clerks could obtain access to the Internet. Because only Thomas and Breyer used computers regularly at the time, there was little pressure from the justices to update. For the most part, the justices communicated with one another by hand-delivered memos, which were typed by their secretaries.)</p>
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Question Title: Is it possible for India to extradite its own citizens?

Question Body: <p>The <a href="https://www.indiacode.nic.in/handle/123456789/1440?sam_handle=123456789/1362#:%7E:text=India%20Code%3A%20Extradition%20Act%2C%201962&amp;text=Long%20Title%3A,connected%20therewith%20or%20incidental%20thereto" rel="nofollow noreferrer">Extradition Act</a> deals with extradition in India.</p>
<p>But in its Sections it doesn't have any such provisions or details. and can State High court of India enquire into such extraditions?</p>


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Answer 1: <p>In general,</p>
<ol>
<li>A country X can extradite people in X to country Y, at the request of Y and to the extent authorised by X's own law.</li>
<li>Typically, there will be an <em>extradition agreement</em> between X and Y (a kind of treaty) concerning how this will happen. X's domestic law will take account of the agreement, when it comes to extraditing any specific person. An agreement is not always required - it depends on X's law.</li>
<li>Several countries refuse to extradite their own citizens. So Y could ask X to extradite a citizen of Y who is in X, or indeed a citizen of a third country Z who is in X, but not a citizen of X. Typically, for this situation, an extradition agreement between X and Y would include a provision saying that X could prosecute in place of Y, within X, rather than sending the person to Y.</li>


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<li>India is <em>not</em> such a country. It does allow its citizens to be extradited to other countries, in principle. By policy, if the other country Y objects to extraditing its own citizens (i.e. sending a citizen of Y, currently in Y, to India), then India will reciprocally refuse extradition of Indian citizens from India to Y.</li>
<li>Aside from the possible nationality bar, there are plenty of other considerations for whether a proposed extradition would take place.</li>
</ol>
<p>For example, the extradition treaty between India and Türkiye specifies in its <a href="https://www.latestlaws.com/bare-acts/central-acts-rules/criminal-laws/the-extradition-act-1962/extradition-agreement-between-the-government-of-the-republic-of-india-and-the-government-of-the-republic-of-turkey" rel="nofollow noreferrer">Article 8(1)</a> that</p>
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<p>The nationals of a Contracting State shall not be extradited to the other Contracting State provided that the Requested State shall submit the case to its competent authorities for prosecution if the act committed is also considered as an offence under the laws of the Requested State.</p>
</blockquote>
<p>That is, Indian citizens in India would not be extradited to Türkiye, but instead could be prosecuted in India. Provisions of the Extradition Act mean that the offence is treated as if it had occurred in India, for such a prosecution. This does not stop an Indian citizen in Türkiye from being extradited to India, or the reverse situation.</p>


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<p>On the other hand, the agreement between India and the United States says in <a href="https://www.latestlaws.com/bare-acts/central-acts-rules/criminal-laws/the-extradition-act-1962/extradition-treaty-between-the-government-of-the-republic-of-india-and-the-government-of-the-united-states-of-america/" rel="nofollow noreferrer">Article 3</a> that</p>
<blockquote>
<p>Extradition shall not be refused on the ground that the person sought is a national of the Requested State.</p>
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<p>which alongside the general obligation in Article 1 means that Indian citizens in India could be extradited to the USA, assuming all other conditions are met.</p>


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<p>which alongside the general obligation in Article 1 means that Indian citizens in India could be extradited to the USA, assuming all other conditions are met.</p>
<p>Regarding the High Court question: While the extradition proceedings must take place before a magistrate, they can be challenged by way of judicial review. The same applies to decisions made by central government as part of the process. In India this is called &quot;writ jurisdiction&quot; and can be exercised before a High Court, or the Supreme Court. It is limited in scope and usually would only apply if there has been some procedural irregularity, irrationality in decision-making, or violation of fundamental rights.</p>


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Answer 2: <p>In answer to the title's question: <strong>Yes</strong></p>
<p>The <a href="https://www.indiacode.nic.in/handle/123456789/1440?sam_handle=123456789/1362" rel="noreferrer">Extradition Act 1962</a> does not differentiate a fugitive criminal's citizenship,
(<a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_10_10_00009_196234_1517807322487&amp;sectionId=4220&amp;sectionno=2&amp;orderno=2" rel="noreferrer">Section 2(f,)</a>) but the procedures vary depending whether or not a formal treaty is in place.</p>
<p>An example of an Indian being extradited <em>from</em> India is <a href="https://www.google.co.uk/amp/s/m.timesofindia.com/nri/man-extradited-from-india-on-murder-rape-charges-sentenced-to-life-in-uk/amp_articleshow/77668172.cms" rel="noreferrer">Aman Vjas</a>: a serial rapist, as reported <a href="https://indiankanoon.org/doc/114963330/" rel="noreferrer">here</a></p>


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<p>And an example of an Indian citizen being extradited <em>to</em> India is Sanjeev Chawla which was <a href="https://www.google.co.uk/amp/s/blog.ipleaders.in/india-uk-extradition-treaty/%3famp=1" rel="noreferrer">India’s first successful extradition since the treaty was signed with the UK in 1992</a></p>
<p>Also, for interest and further reading, this <a href="https://www.mondaq.com/india/human-rights/948934/india39s-recent-successes-in-extraditing-fugitives-from-the-united-kingdom" rel="noreferrer">Motaq</a> article gives some background regarding India - UK extradition.</p>


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Question Title: Can having sex with a partner ever be considered a rape?

Question Body: <p>Does a partner must seek permission each time he/she wants to have sex?</p>
<p>Is there any act of husband or wife which can be considered as rape?</p>


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Answer 1: <p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></p>
<blockquote>
<p>Is there any act of husband or wife which can be considered as rape?</p>
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<p>The paragraph for sexual offences is <a href="https://www.gesetze-im-internet.de/stgb/__177.html" rel="nofollow noreferrer">§177 StGb</a>. Obviously there are nuances between those offences, not everything is &quot;rape&quot;, but all of it is illegal.</p>
<p>To answer your question, yes, the same acts that are considered rape when they are not husband and wife. While marriage had been an exception, this was considered archaic by many and this exception was removed in 1997:</p>
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<p>Vergewaltigung in der Ehe ist seit Juli 1997 strafbar. Mit dem 33. Strafrechtsänderungsgesetz wurde das Merkmal außerehelich aus dem Tatbestand der Vergewaltigung, § 177 StGB, gestrichen, sodass seitdem auch die eheliche Vergewaltigung als ein Verbrechen geahndet wird.</p>
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<p>Translation:</p>
<blockquote>
<p>Marital rape has been punishable since July 1997. With the 33rd Criminal Law Amendment Act, the characteristic &quot;extramarital&quot; was removed from the definition of rape, § Section 177 of the Criminal Code, so that since then marital rape has also been punished as a crime.</p>
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<p>There is no mention of how consent is to be expressed or even that it needs to be expressed explicitely.</p>


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Answer 2: <p><a href="/questions/tagged/switzerland" class="post-tag" title="show questions tagged &#39;switzerland&#39;" aria-label="show questions tagged &#39;switzerland&#39;" rel="tag" aria-labelledby="tag-switzerland-tooltip-container">switzerland</a></p>
<p>There's just a large political debate going on about an update of the relevant article 190 of the Swiss criminal code. The debate is mainly about the destinction between &quot;only yes means yes&quot; and &quot;no means no&quot;. I think it's mostly a philosophic question, but in the core it's about whether permission must be <em>explicitly</em> given or if an explicit no of a partner is required to refuse sex. (<a href="https://action.amnesty.ch/de/nur-ja-heisst-ja/" rel="nofollow noreferrer">Article on the debate here</a> - note that the comment there might be biased)</p>


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<p>Additionaly (and as far as I know mostly undisputed) a change will be made that allows a rape investigation against all sexes. So far, in Switzerland, only men could be convicted for rape.</p>


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Question Body: <p>I stumbled across this news article: &quot;<a href="https://metro.co.uk/2014/08/19/shops-posts-hilarious-august-peanut-sale-poster-to-circumvent-bottled-water-ban-4837709/" rel="nofollow noreferrer">Shop posts ingenious 'August peanut sale' poster to circumvent bottled water ban</a>&quot;</p>
<p>The article describes a music festival that was not allowed to sell bottled water to patrons, so they sold peanuts for $1.50 each and provided a &quot;free&quot; bottle of water with the purchase. The overall result is that the customer has paid $1.50 for a bottle of water and a peanut, but because the money was ostensibly exchanged for the peanut, nothing illegal has taken place.</p>
<p>In fact, the placeholder purchase is not required, because each person could claim that they gave away the money or the item of their own free will, independent of expectation from the other.</p>


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<p>In fact, the placeholder purchase is not required, because each person could claim that they gave away the money or the item of their own free will, independent of expectation from the other.</p>
<p>I'd like to know if this loophole, regardless of the goods that are forbidden to be sold, has ever been challenged in a court of law and what the outcome was. I don't care too much about jurisdiction but I'd prefer answers from the United States or countries with legal systems descended from English Common Law (Australia, Canada, United Kingdom).</p>


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Answer 1: <h2>Depends on the law</h2>
<p>It’s unclear if this is a contractural restriction on the shop or a local ordinance relating to the festival. In any event, it depends on the law and what, precisely, the shop is doing.</p>
<p>If the restriction is on supply, this doesn’t work. If it’s on sale then this might work if done properly.</p>
<p>If it is a contractural restriction that the shop freely entered, it is unlikely that this ruse would protect them from a breach of contract suit because the shop is obviously acting in bad faith in a calculated attempt to avoid their obligations.</p>
<p>If it really is a law restricting sales, then giving it away free would work. However, what the shop is doing is not giving away free water - they are bundling a peanut and a bottle of water and selling that. To avoid liability, the shop would need to give the water away for free without selling the peanut to anyone that asked.</p>


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<p>An analogous case related to liquor happened in <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="new-south-wales-container">new-south-wales</a>. All states in Australia require a liquor licence to sell alcohol in most cases, however, providing you comply with responsible service laws, it’s not illegal to give it away to the public.</p>
<p>As is common, many hairdressers provide their customers with a complementary glass of wine. This is fine in Queensland or Western Australia because those states have specific exemptions for hairdressers, but illegal in NSW.</p>


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<p>A salon owner in Sydney was successfully prosecuted for this practice because, when the undercover police officer requested a “free” glass without a haircut, she was denied. The magistrate concluded that this meant the wine was not, in fact, free and that the salon was therefore selling liquor without a licence. At $11,000 per glass, the salon lost money on the deal.</p>


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Answer 2: <p>That incident hinged, at best, on the contract between vendors and the organizers. There were false implications that it was related to liquor control regulations, it was apparently related to a plan to have a monopoly on water sales that went bad because demand vastly outstripped supply. Nobody has offered anything resembling a contract between vendors and the local paper sponsoring the event. It would therefore depend on the exact wording of the contract. There would have to actually be some such restriction stated in the contract. If there were some vague verbiage to the effect that vendors must comply with rules set by the organizers, the organizers could not then impose a rule &quot;food may not be sold&quot; since selling food is the whole point of the contract. If we assume that the contract says &quot;You may not sell bottled water&quot;, then the organizers would have a basis for a suit against the vendor. However, it is not clear that they would have been able


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assume that the contract says &quot;You may not sell bottled water&quot;, then the organizers would have a basis for a suit against the vendor. However, it is not clear that they would have been able to collect much by way of damages. The organizers would have to show that the vendor's sale decreased the profit that would have been otherwise made, but the surrounding circumstances indicated that there was probably little effect on sales.</p>


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Question Title: Is &quot;I didn&#39;t think it was serious&quot; usually a good defence against &quot;duty to rescue&quot;?

Question Body: <p>Supposing A gives B food that contains an ingredient that, unknown to A, B is violently allergic to, and B collapses.  A refuses to call an ambulance, saying that B is just being dramatic, and continues to do so even when C confirms that B does, in fact, have this allergy and it is life-threatening.  (Suppose that A is the only one present whose phone is working).</p>
<p>In jurisdictions with a &quot;<a href="https://en.wikipedia.org/wiki/Duty_to_rescue" rel="noreferrer">duty to rescue</a>&quot; law, if B dies as a result of this, is &quot;I thought C was exaggerating&quot; likely to be a sufficient excuse?</p>


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Answer 1: <p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></p>
<p>You have the duty to help others <em>even if they cannot articulate that</em>.</p>


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<p>You have the duty to help others <em>even if they cannot articulate that</em>.</p>
<p>There was a case recently where people stepped over an unconscious person to get money from an ATM, thinking it was a homeless person sleeping inside the rather warm entrance to the public bank building. Turned out it was a normal elderly customer who had a medical emergency. Three customers walked around them and did not get help. Only the fourth customer called an ambulance about 20 minutes later. The person died in hospital, doctors said the delay in treatment did not cause the death, the person would have died even if help had been available earlier. Police used the banks security cameras to prosecute all who had just ignored the person and &quot;thought it was okay, they were just sleeping&quot;.</p>
<p>Newspaper Article:


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<p>Newspaper Article:
For example <a href="https://www.spiegel.de/panorama/justiz/rentner-in-bank-gericht-verhaengt-geldstrafen-wegen-unterlassener-hilfeleistung-a-1168518.html" rel="noreferrer">Der Spiegel</a>.</p>
<p>The actual text of the verdict:
<a href="https://www.justiz.nrw.de/nrwe/lgs/essen/ag_essen_borbeck/j2017/3_Ds_70_Js_654_16_252_17_Urteil_20170918.html" rel="noreferrer">AG Essen-Borbeck, 18.09.2017 - 3 Ds - 70 Js 654/16 - 252/17, 3 Ds 252/17</a></p>
<p>In this case it was monetary fines, but if the person had actively <em>asked</em> for an ambulance, like in your case, and were actively denied instead of ignored, I'm pretty sure that would have made it way worse for the defendants.</p>


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Answer 2: <h2><em>If</em> you have a duty, you must do what a reasonable person would do in the circumstances</h2>
<p>In general, in common law jurisdictions (civil law is different), you do not have a duty to rescue <strong>unless</strong> your acts or omissions have placed the person in danger. Here A has caused the hazard so they do have a duty.</p>
<p><strong>It doesn’t matter what A thinks or believes.</strong> Their duty is to do what a reasonable person in the circumstances should do. A reasonable person would call an ambulance.</p>
<p>This is the standard for <em>civil</em> liability.</p>
<p>If A were to be charged with a crime, then there will be specific elements the Crown will need to prove. They almost always require more than mere negligence. Some crimes require intent (which appears to be lacking here), some require recklessness (which is possible), and some require gross negligence (which is more possible).</p>


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Answer 3: <p>Probably not, as it would make any duty-to-care legislation toothless, as the excuse could be tried in all circumstances: &quot;Your Honor, after I drove into the pedestrian, he was under my car, but I was sure he got there voluntarily, so It couldn't have been that bad&quot;.</p>
<p>Since A is not a medic, he's unable to make up an appropriate diagnosis of B's state. That's not expected of him, but common sense would expect him to know the real signs of e.g. respiratory distress. Yes, that probably means touching the patient, but nobody is able to diagnose somebody without looking and touching. And &quot;Well, he looked like he's simulating&quot; or worse still &quot;Well, he looked like an impostor&quot; is unlikely to convince the judge.</p>


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<p>Normally, you can't do much wrong by calling an ambulance. Even though there have been disputes about who had to pay for the ambulance when the victim didn't actually need nor want it, this is likely the smaller problem than the sentence you'll face for not helping. Also, this doesn't apply here, as B is arguably unable to say anything.</p>
<p>Note: While googling, I found <a href="https://www.fr.de/panorama/rentner-bitte-liegen-lassen-11366511.html" rel="noreferrer">this report</a>, which states that particularly in China, calling for help is a common fraud scheme. Particularly elderly people simulate an accident, and when someone helps them (and brings them to a hospital) the helper is accused of an assault.</p>


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Answer 4: <p>I'll use the Diamond Ranch Academy tragedy as an example since they used the &quot;we thought she was being dramatic, it wasn't serious&quot; excuse.</p>
<p>Reference: <a href="https://www.nbcnews.com/news/us-news/taylor-goodridge-autopsy-diamond-ranch-academy-rcna80864" rel="nofollow noreferrer">Teen vomited on multiple days before dying of infection at Utah boarding school, state finds</a> (NBC News)</p>
<p>They didn't get her help (for over a month) because &quot;she was being dramatic&quot;. Unfortunately, since this happened in the troubled teen industry — they have so far been given a pass to keep operating — so I guess you can get away with the excuse &quot;I didn't know it was serious&quot;.</p>


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Answer 5: <p><a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" aria-label="show questions tagged &#39;france&#39;" rel="tag" aria-labelledby="tag-france-tooltip-container">france</a></p>
<p><strong>Probably not a good excuse</strong></p>
<p>&quot;Non-assistance à personne en danger&quot; is fairly transparent, it's the crime of failing to provide assistance to someone in danger. The relevant law is <a href="https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000037289588" rel="noreferrer">Code Pénal Art 223-6</a>, but the <a href="https://www.service-public.fr/particuliers/vosdroits/F34551" rel="noreferrer">service-public</a> website gives a more layman overlook of it.</p>
<p>The summary in English is there are three elements necessary for this crime:</p>
<ul>
<li>Imminent and grave danger, which is assumed in the premise;</li>
<li>The witness being aware of this danger, which would be the main point of contention;</li>


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<ul>
<li>Imminent and grave danger, which is assumed in the premise;</li>
<li>The witness being aware of this danger, which would be the main point of contention;</li>
<li>The witness voluntarily doesn't help the victim and/or doesn't call emergency services, which is also assumed in the premise.</li>
</ul>
<p>Witness A may argue that they didn't think the danger was serious. This is weakened by Witness C telling them the danger is real.</p>
<p>Ultimately, it would be up to the judge to decide what to believe, but I wouldn't want to make that bet. I don't think that &quot;I thought B was faking it&quot; and/or &quot;I thought C was exaggerating&quot; is very convincing. Perhaps there is an history between the three that can mitigate this, but in a vacuum that's not reasonable, especially when you consider just how ridiculously low the threshold is for providing assistance: calling emergency services.</p>


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Answer 6: <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 case as presented seems clear: A is provided the necessary information to act but they don't. I'm following <a href="https://www.juraforum.de/lexikon/unterlassene-hilfeleistung" rel="nofollow noreferrer">this site</a> and similar ones which prepare students for the bar exam in Germany here.</p>
<p>First of all, the objective side:</p>
<ul>
<li>An emergency was present.</li>
<li>It required intervention by A.</li>
<li>The intervention was possible.</li>
<li>The intervention would have been effective.</li>
</ul>
<p>Then the subjective side:</p>
<ul>
<li>The necessary intervention could be reasonably expected by A. (For example, it did not put A in danger.)</li>


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</ul>
<p>Then the subjective side:</p>
<ul>
<li>The necessary intervention could be reasonably expected by A. (For example, it did not put A in danger.)</li>
<li>The last point is your question: A didn't understand the emergency (let's take A's statement at face value). In principle, this can be exculpatory: If A is objectively not able to recognize the emergency there is no duty to help, even if it would have been possible and reasonable. (Say, somebody dies silently in the chair next to A: A could have saved their life but could objectively not recognize the emergency.) In this case, A is obviously not guilty.</li>
</ul>


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</ul>
<p>Here and in other instances, German law and jurisdiction try to square the circle. They decide based on what one could call &quot;objective subjectivity&quot;. They put a virtual standard &quot;reasonable&quot; (&quot;<a href="https://dict.leo.org/englisch-deutsch/verst%C3%A4ndig" rel="nofollow noreferrer">verständigen</a>&quot;) observer in the shoes of A and decide based on what they would have thought.</p>
<p>And unless B and C have a history of questionable pranks or it was April 1st, a reasonable observer like me would say that A should have recognized the emergency.</p>
<p>As an aside, <a href="https://www.gesetze-im-internet.de/stgb/__323c.html" rel="nofollow noreferrer">§323c</a> is not exhaustive: In addition to the violated duty to rescue, negligent homicide or homicide by omission may be applicable.</p>


