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manner and for not more than a reasonable time to permit such
investigation or questioning by a peace officer or by the owner of the
mercantile establishment, his or her authorized employee or agent, and
that such peace officer, owner, employee, or agent had reasonable
grounds to believe that the person so detained was committing or
attempting to commit larceny or shoplifting on such premises of such
merchandise. As used in this section, &quot;reasonable grounds&quot; shall
include, but not be limited to, knowledge that a person has concealed
possession of unpurchased merchandise of a mercantile establishment,
and a &quot;reasonable time&quot; shall mean the time necessary to permit the
person detained to make a statement or to refuse to make a statement,
and the time necessary to examine employees and records of the
mercantile establishment relative to the ownership of the merchandise.</p>
</blockquote>


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and the time necessary to examine employees and records of the
mercantile establishment relative to the ownership of the merchandise.</p>
</blockquote>
<p>Speaking of Walmart, <a href="https://www.courts.wa.gov/content/petitions/92468-6%20COA%20Respondents%20Brief.pdf" rel="nofollow noreferrer">here is a petition</a> regarding a lawsuit against Walmart over such an event, where a shopper failed to stop to respond to exit security, resulting in her being physically stopped. A lawsuit (assault, unlawful imprisonment, outrage) ensued. The bottom line was that the shopkeeper's privilege is a valid defense against a lawsuit to the effect that a shopper does not want to comply with a request to prove that they are not stealing goods.</p>


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Question Title: Illegal to renew cat&#39;s urinary food prescription if no yearly examination in WA State, USA?

Question Body: <p>My friend's cat had emergency bladder stone surgery a couple of years ago. They put the cat on prescription urinary food my friend ordered online. The vet is refusing to renew the prescription because my friend hasn't brought cat in to see the doctor in the past year.</p>
<p>My friend says the vet is claiming it would be illegal to renew the prescription without seeing the cat. Is this true?</p>


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Answer 1: <p>This is true. <a href="https://app.leg.wa.gov/wac/default.aspx?cite=246-933&amp;full=true" rel="noreferrer">Ch. 246-933-200 WAC</a> (1)(b)(i) requires that the veterinarian</p>
<blockquote>
<p>Has examined the animal(s) within the last year, or sooner if
medically appropriate</p>
</blockquote>
<p>in order to have a veterinary-client-patient relationship. Without that relationship, they cannot prescribe medication for an animal, because</p>
<blockquote>
<p>A veterinarian shall use or prescribe drugs only within the context of
a veterinary-client-patient relationship.</p>
</blockquote>


Tags: medical, washington, pets


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Question Title: Is it legal to coerce employees into undergoing lie detector tests?

Question Body: <p>Someone has been stealing from my girlfriend's workplace (not her) and they're forcing everyone there to undergo a lie detector test or lose their jobs. Since such tests don't actually work, is this even legal?</p>
<p>I have done some research but I can't get a straight answer under UK law, as the web mostly mentions US law.</p>


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Answer 1: <p>From <a href="http://www.private-investigators-uk.com/lie-detector-test/lie-detector-test-uk-laws" rel="nofollow noreferrer">Private Investigators UK</a>:</p>
<blockquote>
<p>Polygraph testing is 100 per cent, totally, completely legal in the United Kingdom. However, there are a few conditions. The person undergoing the polygraph exam must be cooperative and willing to take the polygraph. No one can be forced to take one. The person administering the polygraph test must be qualified to do so and must hold a relevant degree and license. These results however, are inadmissible in a court of law. This is because there is a fair chance of the results of a polygraph being inaccurate. Since physiological responses are measured, it is possible that the stress of the situation may cause the examinee to register many false positives.</p>
</blockquote>


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</blockquote>
<p>As the results are inadmissible in a court, I think there would be reasonable grounds to claim <a href="https://en.wikipedia.org/wiki/Unfair_dismissal_in_the_United_Kingdom" rel="nofollow noreferrer">unfair dismissal</a> if she were sacked because of the test's results.</p>


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Question Title: Can you keep money from an unknown source?

Question Body: <p>I have recently rewatched <em>Breaking Bad</em>, and something that happened in the last  season had me wondering. Jessie tries to give $2.5M each to Mike's granddaughter and the family of the boy that was killed. Saul states that in both cases, this suspicious money would be seized instantly and advises against this plan. My question is, in a similar, real situation like that, would the authorities actually take all of the money if there was no clear source if a legitimate origin isn't known, but they also couldn't conclusively prove its the product of criminal activity? What legal reason would they have for taking it, provided the recipients were willing to report the income and pay the necessary tax?</p>


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Answer 1: <p>The process would play roughly as follows.</p>
<ol>
<li>Jessie gives $2.5M to Mike's granddaughter as a gift.</li>
<li>Mike's granddaughter files this as income. I believe the appropriate tax law would be inheritance law and as they are not related the tax would be quite high.</li>
<li>The tax office notices that this is highly unusual and suspicious but not illegal per se. Hence they investigate to find out more.</li>
<li>They find out that Jessie did not legally own the $2.5M he gave (because it was illegal drug money). Hence Jessie was not in a position to make this gift and they can and will confiscate it from Mike's granddaughter.</li>
</ol>
<p>Note that if Jessie can prove that he legally owned the money there is no crime and he is free to give it to whoever he pleases.</p>


Tags: united-states, criminal-law, tax-law, money-laundering, income-tax


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Question Body: <p>My interpretation is that in Minnesota, the landlord of a residence is responsible for keeping the smoke detector functioning, and that this is part of the implied warranty of habitability. I think that means that if a fire breaks out due to a failure to install or repair the smoke detector, the landlord is liable for damages.</p>
<p>I think the most relevant laws are these <a href="https://www.revisor.mn.gov/statutes/cite/504B.161" rel="nofollow noreferrer">504B.161 COVENANTS OF LANDLORD OR LICENSOR</a> Subd 1(a)(1) and  Subd 1(a)(2) and Subd 2 and <a href="https://www.revisor.mn.gov/statutes/cite/299F.362" rel="nofollow noreferrer">299F.362 SMOKE DETECTOR; INSTALLATION; RULES; PENALTY</a> Subd 5 and 5a.</p>
<p>But I know in the law there's often more to the story. Is there a way for a tenant to agree to assume the risks resulting from broken smoke detectors? What happens to a lease that tries to do this?</p>


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Answer 1: <p>The fair reading is that the landlord must always ultimately be responsible for maintaining smoke detectors, even if the lease purports to say otherwise.</p>
<p>The lease could probably shift the economic cost of complying to the tenant (e.g. charging the tenant for batteries and personnel to maintain it in addition to rent). But ultimately, in situations where the statute requires the landlord to have working smoke detectors, the landlord can't use the failure of the tenant to do their job as a defense to liability or a fine. The more specific smoke detector statute probably prevails over the more general statute on allocating responsibilities between the landlord and the tenant when it applies.</p>


Tags: tenant, residential-lease, minnesota


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Question Title: Overriding offered contract acceptance methods with express written declaration

Question Body: <p>Bob would rather face the consequences of trespassing than pay for a license to occupy a privately owned parking spot.</p>
<p>He pulls into the lot which says “by parking here you agree to pay £10/hour.</p>
<p>Bob wishes to reject this offer to buy a license and so park his car without any license, ie as a trespasser.</p>
<p>He makes this clear by displaying a sign in his windshield or by donning a bumper sticker that reads “I AM TRESPASSING,” or perhaps simply “TRESPASSER”.</p>
<p>Has Bob accepted or rejected the proprietor’s contract?</p>


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<p>As explained in <a href="https://law.stackexchange.com/a/92400/46948">another answer</a>, given that the offeror has stipulated that parking in the lot will constitute acceptance, and given that the offeror is master of the offer, then the question is whether the act of parking in the lot constitutes acceptance of the contract. I outlined the test in that other answer and will only summarize here: the question becomes &quot;<a href="https://ca.vlex.com/vid/communication-of-acceptance-683505725" rel="noreferrer">whether the offeror, acting reasonably, would understand that the offeree was assenting to the terms proposed</a>.&quot; This is acceptance by conduct. This is <a href="https://law.stackexchange.com/questions/90788/does-contract-formation-require-subjective-meeting-of-the-minds">an <em>objective</em> inquiry</a> focusing on how the actions would be understood to a reasonable observer, not an inquiry into the actual states of mind of the offeror or offeree.</p>


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<p>An example of the above law being applied can be found in <a href="https://www.scotcourts.gov.uk/search-judgments/judgment?id=b39287a6-8980-69d2-b500-ff0000d74aa7" rel="noreferrer"><em>University of Edinburgh v. Onifade</em>, 2005 S.L.T. (Sh. Ct.) 63</a>:</p>
<blockquote>
<p>The pursuers' notice made it plain that their position was that anyone who parked on their property without a permit would have to pay them a fee of £30 per day on that account. The defender, by parking his vehicle on their property without a permit, made it plain that he accepted that position. He signified his acceptance by his conduct in so doing. It is nothing to the purpose for him to maintain that he did not intend to pay because he considered that the pursuers were not entitled to make the charge specified. 'The judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other.'</p>
</blockquote>


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</blockquote>
<p>See also <a href="https://www.canlii.org/en/on/onca/doc/2007/2007onca649/2007onca649.html" rel="noreferrer"><em>Imperial Parking Canada Corporation v. Toronto (City)</em>, 2007 ONCA 649</a>. The signs said:</p>
<blockquote>
<p>Impark is by this sign offering space for public parking. You accept this offer by parking on this lot. Do not park on this lot if you do not agree to these terms and conditions … If you park and do not display a valid ticket or pass the rate is $69.55 per day or portion thereof.</p>
</blockquote>
<p>The judge found:</p>
<blockquote>
<p>the signs posted on Impark’s lots expressly state that Impark consents to the parking of cars without payment in advance and held that the fees that Impark collects are sums owing to it in contract rather than damages for trespass</p>
</blockquote>


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</blockquote>
<p>In another parking lot example, <a href="https://www.canlii.org/en/ca/fca/doc/2000/2000canlii15612/2000canlii15612.html" rel="noreferrer"><em>Imperial Parking Ltd. v. Canada</em>, 2000 CanLII 15612 (FCA)</a>, the Federal Court of Appeal said:</p>
<blockquote>


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<blockquote>
<p>In my view, the unequivocal conduct which constitutes acceptance of the appellant's offer to provide a parking space occurs when the driver leaves the lot after parking his or her vehicle. This interpretation is reinforced by the text of the large sign posed at the entrance to the appellant's lot. That is the point in time in which an owner can be deemed to have accepted the appellant's offer. <strong>Any time before that moment, a driver can demonstrate his rejection of the appellant's offer by driving away.</strong> Those who purchase a ticket must be deemed to have accepted the appellant&quot;s contractual terms upon leaving their parked vehicle in the appellant's lot. <strong>As for those who park their vehicles but fail to pay, the act of non-payment is more consistent with the intention to breach a contract than a refusal to enter into one.</strong></p>
</blockquote>
<h3>Bob's sign/note/sticker is not likely an effective rejection of the offer</h3>


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</blockquote>
<h3>Bob's sign/note/sticker is not likely an effective rejection of the offer</h3>
<p>I understand you to be asking whether Bob's sign constitutes rejection of the offer such that Bob's subsequent conduct no longer would be considered acceptance of the contract.</p>
<p>A rejection would terminate the offer, such that it can no longer be accepted. However, <em>rejection must be communicated to the offeror</em> (<em>Chitty on Contracts</em>, § 4-124). In examples where apparent acceptance by conduct is negated by evidence of contrary intention, the offeror was in a position to be aware of the rejector's manifest expression of that contrary intention (see examples in <em>Chitty on Contracts</em>, § 4-035).</p>


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Answer 2: <h2>Bob has accepted the contract</h2>
<p>The contract is accepted by a person who has observed the sign parking there. Bob has parked there so he has accepted the offer - it doesn’t matter what he mumbles to himself or writes down on a piece of paper.</p>


Tags: contract-law, england-and-wales, trespass, any-jurisdiction, parking


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Question Title: Liability of products that are inherently risky (e.g. skateboard)

Question Body: <p>How do manufacturers of products that necessarily imply risk deal with liability?</p>
<ul>
<li>Are they only liable if the product malfunctions in an unexpected and unpredictable way (e.g., the board breaks)?</li>
<li>Does liability only apply when a product injures a user, but not when the users injures themselves using a product where harm cannot be excluded?</li>
<li>Can they absolve themselves of liability by simply warning the user about risks?</li>
</ul>


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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>
<h3>Theories Of Product Liability In Tort</h3>
<p>There are three basic theories of product liability in tort (setting aside breach of warranty claims) under state law in most U.S. states.</p>
<ol>
<li><p><strong>Defective manufacturing.</strong> In this theory, there was a flaw in making the product that caused it not to conform to an otherwise good design, causing harm to the claimant.</p>


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<li><p><strong>Defective manufacturing.</strong> In this theory, there was a flaw in making the product that caused it not to conform to an otherwise good design, causing harm to the claimant.</p>
<p>For example, if a fire alarm is designed to have a trigger that actives at a certain temperature, but the noise maker in the alarm melts and becomes inoperative at a temperature below the trigger temperature because the manufacturer uses plastic instead of the design requirement of metal for a part because of a temporary shortage of that metal, the manufacturer is liable for harm that results from the fire alarm's failure to activate at the trigger temperature.</p>
</li>
<li><p><strong>Defective design.</strong> In this theory, there was a flaw in the design of the product and that flaw caused harm to the claim and would have done so even if the product was perfectly manufactured consistently with the design.</p>
<p>What constitutes a defective design?</p>
<blockquote>


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<p>What constitutes a defective design?</p>
<blockquote>
<p>A company's liability for a design defect occurs when there was a
foreseeable risk posed by the product when the product was
manufactured as intended and used for its intended purposes.</p>
<p>In many states, plaintiffs also have to show that the risk could have
been reduced or avoided by the adoption of a reasonable alternative
design, which was:</p>
<p>Feasible, in other words, the manufacturer had the ability to produce
it; Economically feasible, in other words, it would not cost too much
to make the product with the modification; and</p>
<p>Not in opposition to the product's intended purpose, in other words,
the product would still perform the function for which it was created.</p>
</blockquote>
<p>(<a href="https://www.findlaw.com/injury/product-liability/defects-in-design.html" rel="nofollow noreferrer">Source</a>)</p>


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</blockquote>
<p>(<a href="https://www.findlaw.com/injury/product-liability/defects-in-design.html" rel="nofollow noreferrer">Source</a>)</p>
<p>For example, if a whiskey distilling vat generates high internal pressures that could cause it to explode if not alleviated, and the manufacturer does not include a pressure release valve in the design to prevent that explosion, the manufacturer would be liable for the harm caused by an explosion that occurs because there is not a pressure release valve in the design making it defective.</p>


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<p>Also, failure to comply with a regulatory standard intended to enhance safety in a design when that non-compliance causes harm (e.g. designing a car without seat belts), may be a design defect as a matter of law. Likewise, failure to comply with widely recognized non-legally adopted design standards in an industry intended to enhance safety in designs of particular kinds of products, when that non-compliance causes harm, will usually constitute open and shut proof of a design defect without further proof or analysis.</p>
</li>
<li><p><strong>Failure to warn.</strong> In this theory, the design of the product presents risks of harm to the user that are not obvious, which would be mitigated or eliminated if the user was given an adequate warming of the risk and followed that warning.</p>


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<p>For example, while the risk of harm from a knife is obvious and does not trigger a duty to warn, if a knife is made from a material that creates a toxic cloud of chlorine gas when exposed to bleach, the maker of a knife with this non-obvious risk needs to adequately warn potential users of the knife of the importance of not exposing it to bleach or the maker of the knife will have liability for bleach related harms to users that occur.</p>
</li>
</ol>
<h3>Observations</h3>
<p>Product liability in tort is &quot;strict&quot; in the sense that there can be liability even if the manufacturer was not negligent.</p>
<p>For example, in a defective manufacturing case, even if the manufacturer had the best quality control system in the world, if one item in a billion is defectively manufactured and causes harm as a result, the manufacturer is still liable.</p>


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<p>Similarly, in a defective design case, it is not a defense that a reasonable product designer took reasonable care to identify defects (e.g. holding brain storming sessions and reading any relevant studies) that didn't actually reveal the potential problem, if the design defect was foreseeable but the designer just didn't think of it anyway.</p>
<p>And, in a failure to warn case, there can be liability even if the manufacturer was &quot;reasonable&quot; in the sense of providing the warnings customarily used by others in the industry but still fails to warn of a non-obvious risk that causes harm.</p>
<h3>Application</h3>
<blockquote>
<p>Are they only liable if the product malfunctions in an unexpected and
unpredictable way (e.g., the board breaks)?</p>
</blockquote>


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<h3>Application</h3>
<blockquote>
<p>Are they only liable if the product malfunctions in an unexpected and
unpredictable way (e.g., the board breaks)?</p>
</blockquote>
<p>Not exactly. But if the product is causes harm while carrying out its intended purpose, that isn't a malfunction or defect. A gun isn't defective because it can be used to intentionally kill someone or commit suicide.</p>
<blockquote>
<p>Does liability only apply when a product injures a user, but not when
the users injures themselves using a product where harm cannot be
excluded?</p>
</blockquote>
<p>There is not liability if the user is not injured. If the user injures themselves using the product for the intended purpose this is also not a product liability issue unless the harm could have been avoided with a design change or warning of a non-obvious risk.</p>
<blockquote>
<p>Can they absolve themselves of liability by simply warning the user
about risks?</p>
</blockquote>


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<blockquote>
<p>Can they absolve themselves of liability by simply warning the user
about risks?</p>
</blockquote>
<p>If a product has a design defect, merely warning a user of the design defect will usually not relieve the manufacturer from liability.</p>
<p>For example, stating that the whiskey vat doesn't have a pressure relief valve and could explode, when it could have been designed with them with a $2 manufacturing cost change, won't relieve the manufacturer from liability if someone is harmed by the vat exploding because it doesn't have a pressure relief valve.</p>
<p>In reality, there are gray areas where an alleged design defect that can be fully mitigated with a warning is really a design defect, but that's why we have judges, juries, and expert witnesses to resolve close cases where there are arguments to be made either way.</p>


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<p>A skateboard does have risks even when used for its intended purpose, most of which are obvious, but some of which (e.g. getting clothing entangled in a wheel) might not be. When there is no feasible way to eliminate the risks that are present, and warnings are provided when there are non-obvious risks, then there is no liability on the part of the manufacturer of the skateboard.</p>


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Answer 2: <h3>Assumption of Risk</h3>
<p>In the USA, an obvious risk <a href="https://www.law.cornell.edu/wex/assumption_of_risk" rel="noreferrer">can absolve the seller of liability</a>.  Otherwise, no one could sell a knife, for example, or an automobile.  Today, this is often part of a process that allows obviously dangerous items to diminish but not necessarily completely remove the ability to sue for damages.</p>
<p>This doesn't mean that manufacturers aren't responsible for removing risk from even dangerous items.  You can thank this for the blade stop on your lawn mower.  Now if you try to trim your hedges with your lawn mower &amp; cut off your leg doing it, the manufacturer can argue that you had to defeat a safety device to do so.</p>


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Answer 3: <p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></p>
<p>Product Liability is covered by <a href="https://dejure.org/gesetze/ProdHaftG" rel="noreferrer">Produkthaftungsgesetz
(Gesetz über die Haftung für fehlerhafte Produkte)</a>.</p>
<p>As you can see from the German title, it's laws about liability for <em>defective</em> products. But you don't have to take the title, the very first sentence reads (emphasis mine):</p>
<blockquote>
<p>In such case as a <strong>defect</strong> in a product causes...</p>
</blockquote>
<p>So, what exactly <em>is</em> &quot;a defect&quot;?</p>
<blockquote>
<p>A product has a defect when it does not provide the safety which one is entitled to expect, taking all circumstances into account, in particular</p>
<ul>
<li><p>its presentation,</p>
</li>


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<p>A product has a defect when it does not provide the safety which one is entitled to expect, taking all circumstances into account, in particular</p>
<ul>
<li><p>its presentation,</p>
</li>
<li><p>the use to which it could reasonably be expected that it would be put,</p>
</li>
<li><p>the time when it was put into circulation.</p>
</li>
</ul>
</blockquote>
<p>So let's check your questions:</p>
<blockquote>
<p>Are they only liable if the product malfunctions in an unexpected and unpredictable way (e.g., the board breaks)?</p>
</blockquote>
<p>It doesn't need to be unexpected or unpredictable. &quot;malfunctions&quot; does the heavy lifting here. If <em>all</em> the company's skateboards explode on the third ride, that would be totally predictable, but still &quot;defective&quot;.</p>
<blockquote>
<p>Does liability only apply when a product injures a user, but not when the users injures themselves using a product where harm cannot be excluded?</p>
</blockquote>


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<blockquote>
<p>Does liability only apply when a product injures a user, but not when the users injures themselves using a product where harm cannot be excluded?</p>
</blockquote>
<p>The defective product has to cause the injury. If you fall off a skateboard and injure yourself, that does not trigger any liability, if the skateboard was not defective.</p>
<blockquote>
<p>Can they absolve themselves of liability by simply warning the user about risks?</p>
</blockquote>
<p>They cannot absolve themselves. A defective product is defective, you cannot put a sticker on the box that says &quot;might be defective&quot; and get out of liability. But you are required to explain the normal use and protect against misuse that is to be epected by normal users, because it might be considered a defect if you don't.</p>
<p>Example for a court decision: <a href="https://dejure.org/dienste/vernetzung/rechtsprechung?Text=22%20U%2071/16" rel="noreferrer">OLG Düsseldorf, 07.10.2016 - I-22 U 71/16</a>.</p>


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<p>Example for a court decision: <a href="https://dejure.org/dienste/vernetzung/rechtsprechung?Text=22%20U%2071/16" rel="noreferrer">OLG Düsseldorf, 07.10.2016 - I-22 U 71/16</a>.</p>
<p>Translated first paragraph:</p>
<blockquote>


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<p>Translated first paragraph:</p>
<blockquote>
<p>The duty to instruct obliges the manufacturer of a product within the scope of § 3 (1) ProdHaftG to warn of those dangers which are imminent in the case of intended use or obvious misuse and which are not part of the general knowledge of dangers of the circle of users, whereby the requirements in detail depend on the endangered legal interests and the magnitude of the danger. A circumstance to be taken into account when assessing obligations arising from the ProdHaftG are the dangers associated with a product, which are already inherent in the nature of the thing or are generally known or obvious. The limit of the duty to instruct is reached when - according to the objective circumstances - the consumer handles the product or the instructions attached to it carelessly.</p>
</blockquote>


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</blockquote>
<p>So to summarize, it depends very much on the product, it's instructions, it's normal users and their education level. But generally speaking, liabity is about <em>defects</em>, not risks. A risk is something the user takes knowingly (like using a skateboard) while a defect is something that happens unexpectedly for the user and is the producers fault (the wheels coming off).</p>


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Answer 4: <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>There’s a statute for that: <a href="https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000032023633" rel="nofollow noreferrer">article 1245-3 of the civil code</a></p>
<blockquote>
<p>Un produit est défectueux au sens du présent chapitre lorsqu'il n'offre pas la sécurité à laquelle on peut légitimement s'attendre.</p>
<p>Dans l'appréciation de la sécurité à laquelle on peut légitimement s'attendre, il doit être tenu compte de toutes les circonstances et notamment de la présentation du produit, de l'usage qui peut en être raisonnablement attendu et du moment de sa mise en circulation.</p>
</blockquote>
<blockquote>


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</blockquote>
<blockquote>
<p>A product is faulty for the purposes of the present chapter [i.e. the manufacturer is civilly liable for the damage it causes] when it does not offer a reasonably-expected level of safety.</p>
<p>The reasonably-expected level of safety takes into consideration all circumstances, in particular how the product is presented to the public, what use can reasonably be made of it, and when it was first introduced to the public.</p>
</blockquote>
<p>Therefore:</p>
<blockquote>
<p>Are they only liable if the product malfunctions in an unexpected and unpredictable way (e.g., the board breaks)?</p>
</blockquote>
<p>Yes. A reasonable person knows that skateboarding is a somewhat-dangerous activity, and if they injure themselves in a way that cannot be clearly attributed to a defect in that specific board, that’s assumed liability.</p>
<blockquote>


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<blockquote>
<p>Does liability only apply when a product injures a user, but not when the users injures themselves using a product where harm cannot be excluded?</p>
</blockquote>
<p>No.</p>
<p>Let’s say a skateboard manufacturer uses (against common industry practice) wheels designed for strollers, and a user of that skateboard injures themselves when they land from a height and the wheels break. The manufacturer is likely to be liable, because it is expected that a skateboard will be used at high speed, with high mechanical stress, falling off from great heights, etc. A well-designed skateboard might break from time to time, but <em>this</em> one did not offer a reasonable level of safety.</p>
<blockquote>
<p>Can they absolve themselves of liability by simply warning the user about risks?</p>
</blockquote>
<p>Sort-of yes.</p>


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<blockquote>
<p>Can they absolve themselves of liability by simply warning the user about risks?</p>
</blockquote>
<p>Sort-of yes.</p>
<p>Some products (electrical equipment, airplane parts, chemicals, etc.) have a very high likelihood of injuring anyone attempting to use them without proper training and knowledge. It is still legal to sell them, possibly subject to specific additional regulation (electric code etc.).</p>
<p>It is hedged by the &quot;reasonable use&quot; clause. An arc welding station is reasonably expected to be dangerous, and its user could be expected to read through the documentation before using it. On the other hand, a folding carton should be usable without extensive training. If the carton explodes after being left open for ten seconds (*), that’s not reasonably expected, even if the carton comes with an instruction manual that prominently describes that behavior.</p>


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<p>(*) Example taken from Umberto Eco's <em>How to Travel with a Salmon</em> satirizing instructions for computer use.</p>


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Question Title: What options are there for executor when no close family member is available?

Question Body: <p>What alternatives exist for finding and appointing an executor for one's will/estate for a person with no close family or qualified friend? Are there pros and cons?</p>


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Answer 1: <p>Often one chooses your accountant, your financial advisor, or your lawyer. Another option is to appoint the trust department of a bank.</p>
<p>I personally, as a lawyer, have a policy of not consenting to do that except in rare cases like the one in this question, of a client who just doesn't have anyone and has an estate sufficiently small that a bank trust department would not be cost effective or well suited to handling some aspect of the executorship. But, I have done it a few times in those cases. Most lawyers I know of take a similar position.</p>
<p>If no executor is designated, your estate will usually be administered either by a large unpaid creditor, or by the public administrator (whose job is primarily to administer estates in cases where there are no next of kin, no executor has been designated, and there are no unpaid creditors who have stepped up to do the job).</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>Age UK, a British charity that supports people who are elderly, have this to say on the subject:</p>
<blockquote>
<p><strong>If you don’t have anyone that you feel would be suitable, or your family and friends don’t want to take on the role, you could appoint a professional executor, such as a solicitor or an accountant.</strong></p>
<p><sub><sup><a href="https://www.ageuk.org.uk/information-advice/money-legal/legal-issues/power-of-attorney/what-do-executors-do/" rel="noreferrer">Age UK: What do executors do?</a></sub></sup></p>
</blockquote>
<p>They also offer the following pro and con.</p>
<blockquote>


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</blockquote>
<p>They also offer the following pro and con.</p>
<blockquote>
<p>This can be especially useful if your estate is particularly large or complicated. A professional executor will charge for their services and this will be paid for out of your estate.</p>
</blockquote>


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Question Title: Can evidence that 100% proves guilt (but was obtained 100% illegally) sway a jury to convict?


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Question Body: <p>Raymond the Rapist raped Dan the Dad's child. Dan takes Raymond to court, but there's 0 evidence, and it's basically a he-said-she-said deal, and there's nothing Dan can do to convict Raymond. So Dan, not caring about what happens to him, takes matters into his own hands, and breaks into Raymond's home, and finds irrefutable evidence of Raymond's crime (e.g. photos on his phone of the incident, etc.). Knowing that it might be inadmissible in court (since there was no warrant or anything), Dan uploads it publicly online and sends it to news media outlets.</p>
<p>Now Dan will obviously face some charges I assume. But that aside, regarding the case against Raymond, my main question is: will the evidence be allowed to sway the court?</p>


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<p>Now Dan will obviously face some charges I assume. But that aside, regarding the case against Raymond, my main question is: will the evidence be allowed to sway the court?</p>
<p>On one hand, evidence that was illegally obtained (such as by a cop without a warrant) is inadmissible in court (if I'm not mistaken). On the other hand, the irrefutable evidence of the crime is out there for the entire public, and the jury can't possibly be asked to ignore it and pretend like Raymond isn't guilty beyond a reasonable doubt. So yeah...what's the answer?</p>
<p>Edits:</p>
<ol>
<li>In my example, I used Dan the civilian. But I'd appreciate it if you could address the case that Rob the Rogue Cop also ignores the law to just obtain the evidence and whistleblow it to the public.</li>
<li>Imagine the evidence is literally an explicit video of Randy raping the child. Basically, as close to irrefutable as possible.</li>


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<li>Imagine the evidence is literally an explicit video of Randy raping the child. Basically, as close to irrefutable as possible.</li>
<li>Imagine the case becomes extremely high profile due to widespread media coverage (because it's such a horrible story that was sent to news media outlets, or because Raymond is very famous). Basically, it's impossible to find relevant jurors/judges unless they live under rocks.</li>
</ol>


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Answer 1: <p>The 4th Amendment exclusionary rule applies automatically in cases where law enforcement obtains evidence illegally (subject to exceptions not applicable here).</p>
<p>In its 1920 decision in <em>Burdeau vs. McDowell,</em> the U.S. Supreme Court held that the 4th amendment is not applicable to searches by private parties, even when such searches are clearly illegal. This rule doesn't apply, however, if the private citizens was acting as an agent of the government. A more recent case reaffirming and clarifying <em>Burdeau</em> is <em>United States v. Jacobsen</em> 466 U.S. 109 (1984) in which a private courier finds drugs in a package and shows it to police who test the contents (the search was upheld as valid).</p>


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<p>If the defendant makes that argument, the defendant seeking to exclude the evidence bears the burden of proving by a preponderance of the evidence that the private citizen acted as an agent of the government. <em>U.S. v. Feffer</em>, 831 F.2d 734 (7th Cir. 1987).</p>
<p>Another case discussed <a href="https://www.tdcorg.com/article/but-they-did-it-first-the-private-search-doctrine/" rel="noreferrer">here</a> notes that:</p>
<blockquote>
<p>As it relates to computer files, states still differ on how broad the
application of the Private Search Doctrine runs, but all seem to agree
that if a document or photo has been opened by a private party, an
officer can review that file or photo without a warrant. In <em>People v.
Wilson</em>, 56 Cal. App. 5th 128 (2020), police opened 4 images they
received from NCMEC (the National Center for Missing and Exploited
Children) who received the images in a CyberTip from Google. Neither
NCMEC nor Google had opened these images in this case, but all 4


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Children) who received the images in a CyberTip from Google. Neither
NCMEC nor Google had opened these images in this case, but all 4
images had been reviewed by Google in the past and identified
previously as child porn by their matching hash values. So here, the
officer’s actions—consisting of opening the electronic files submitted
to it by NCMEC and viewing the four images attached to Google’s
Cybertip—did not exactly replicate Google’s private actions. The
Wilson court set out to determine the degree to which the officer’s
additional invasion of Wilson’s privacy exceeded the scope of Google’s
private search (the search of his emails against known hash values).
Before the officer even received Wilson’s photographs, Google had
already reviewed identical images in the past; scanned all of Wilson’s
electronic communications to search for content with matching hash
values; flagged four of Wilson’s images as matching images Google had


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electronic communications to search for content with matching hash
values; flagged four of Wilson’s images as matching images Google had
previously observed; classified the matching images as depictions of
prepubescent minors engaged in sexual acts; forwarded all four images
to NCMEC as part of a Cybertip report; and terminated Wilson’s
account. The Jacobsen case above explained that, “[t]he Fourth
Amendment is implicated only if the authorities use information with
respect to which the expectation of privacy has not already been
frustrated.” <em>Id</em>. at 117. Because Google’s actions already frustrated
any expectation of privacy Wilson possessed in the four photographs at
issue, no privacy interest remained in the four images, so no
expectation of privacy was violated.  <em>Wilson</em> at 219. Because the
assigned hash values, or “digital fingerprints,” are representative of
the contents depicted in the photographs themselves, the government


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assigned hash values, or “digital fingerprints,” are representative of
the contents depicted in the photographs themselves, the government
gained no new material information by viewing the images. The agent
merely confirmed Google’s report that Wilson uploaded content
constituting apparent child pornography. <em>Id</em>. at 220.</p>
</blockquote>
<p>When someone who is not law enforcement obtains evidence illegally, the court sometimes engages in a non-constitutional discretionary balancing test to determine if the evidence is admissible. Sometimes it comes in, sometimes it doesn't. I'll find a case setting forth the exact test if I have time.</p>


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<p>The fact that evidence is &quot;irrefutable&quot; (not that there is any such thing) and widely publicly known is absolutely irrelevant. The fact that a juror knows it would be grounds for excusing the juror for cause and for moving the venue of the trial where they can find enough jurors who aren't familiar with the evidence if they can't manage it in the usual venue.</p>


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Answer 2: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<h3>Evidence obtained in a manner that infringes a person's <em>Charter</em> rights is not automatically excluded</h3>
<p>Evidence that was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the <em>Canadian Charter of Rights and Freedoms</em> shall be excluded if it established that, having regard to all circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute: <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art242.html" rel="nofollow noreferrer"><em>Charter</em>, s. 24(2)</a>.</p>
<h3>The <em>Grant</em> test</h3>


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<h3>The <em>Grant</em> test</h3>
<p>The Supreme Court of Canada has developed a three-prong test to judge whether the admission of the evidence would bring the administration of justice into disrepute and thus require exclusion. See <em>R. v. Grant</em>, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7799/index.do" rel="nofollow noreferrer">2009 SCC 32</a>. The judge must consider:</p>
<ol>
<li>the seriousness of the <em>Charter</em>-infringing conduct;</li>
<li>the impact of the breach on the <em>Charter</em>-protected interests of the accused; and</li>
<li>society's interest in the adjudication of the case on its merits.</li>
</ol>
<p>Behind each of these is much jurisprudence developing its meaning. I only present the above as a summary.</p>
<h3>Application to your hypothetical</h3>


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<p>In the circumstance where a &quot;rogue cop&quot; &quot;<em>ignores the law</em> to just obtain the evidence and whistleblow it to the public,&quot; I predict that this would be considered very serious <em>Charter</em>-infringing conduct, towards the most serious infringing conduct imaginable. I also predict the impact of the breach would be considered profoundly intrusive. Breaking into a person's home to obtain evidence is towards the more intrusive breaches of Section 8 of the <em>Charter</em>. And &quot;[i]t is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer&quot;: <em>R. v. Morelli</em>, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7847/index.do" rel="nofollow noreferrer">2010 SCC 8</a>. Given that the seriousness of the <em>Charter</em>-infringing conduct and the impact of the breach on the <em>Charter</em>-protected interests both pull strongly towards exclusion of the


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SCC 8</a>. Given that the seriousness of the <em>Charter</em>-infringing conduct and the impact of the breach on the <em>Charter</em>-protected interests both pull strongly towards exclusion of the evidence, the third line of inquiry will rarely tip the balance in favour of admissibility.</p>


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Answer 3: <p>You need to understand that laws disallowing evidence that was obtained illegally are not there to protect criminals - they are there to protect innocent citizens.</p>
<p>If Raymond is guilty only in Dan’s sick imagination, then the law wants to protect Raymond from Dan breaking into his home. And the way to do this is to tell Dan quite clearly that if he breaks into Raymond’s house then he will be arrested and punished for breaking and entering, and any evidence found will not be used.</p>
<p>It is important that finding evidence makes no difference, since Dan is convinced that evidence will be found. So Raymond’s home must be protected by law from any illegal search, whether he is guilty or innocent.</p>


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Answer 4: <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>Evidence obtained illegally by non-law-enforcement actors can be used both in criminal and civil trials.</p>
<h2>Criminal procedure: anything goes</h2>


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<p>Evidence obtained illegally by non-law-enforcement actors can be used both in criminal and civil trials.</p>
<h2>Criminal procedure: anything goes</h2>
<p>There are quite a few &quot;fruit of the poisoned tree&quot;-style exclusion rules, introduced by <a href="https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006071154/LEGISCTA000006167430/#LEGISCTA000006167430" rel="nofollow noreferrer">articles 170 through 174-1 of the code of penal procedure</a>. All of them target &quot;acts and pieces of the procedure&quot;. Those include anything done by the prosecution such as police reports, but not acts by private parties outside the criminal procedure. Therefore, third-party evidence falls under the default rules that any piece of evidence can be offered without any specific form. (The evidence can still be discussed in terms of authenticity, probative value and so on.)</p>


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<p>That rule was written down in <a href="https://www.legifrance.gouv.fr/juri/id/JURITEXT000025470795?init=true&amp;page=1&amp;query=11-88.118&amp;searchField=ALL&amp;tab_selection=all" rel="nofollow noreferrer">Cass. crim., 7 mars 2012, n° 11-88.118</a>. It was hardly new at the time, and I believe it is a rather well-settled doctrine at this point. You could argue that the current statute violates ECHR's article 6 right to a fair trial, but that’s a long-shot attempt - the legislator and/or Cour de Cassation will probably not budge until and unless a case succeeds at the ECtHR.</p>


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<p><em>There was <a href="https://en.wikipedia.org/wiki/Bettencourt_affair" rel="nofollow noreferrer">a high-profile case in 2009-2012</a> similar to the hypothetical question in the OP. Liliane Bettencourt, a billionnaire, was secretly (and illegally) recorded by her butler saying incriminating stuff, and the tapes were published by the media. Part of the affair was how, alledgedly, someone in Bettencourt's entourage profited off her senility to extract money out of her. Even though the recordings were 100% illegal, they were used to start judicial procedures against that person.</em></p>
<h2>Civil procedure: it depends</h2>
<p>The statutory basis is rather thin and found at <a href="https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006410102" rel="nofollow noreferrer">article 9 of the code of civil procedure</a>:</p>
<blockquote>
<p>Il incombe à chaque partie de prouver conformément à la loi les faits nécessaires au succès de sa prétention.</p>
</blockquote>
<blockquote>


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<blockquote>
<p>Il incombe à chaque partie de prouver conformément à la loi les faits nécessaires au succès de sa prétention.</p>
</blockquote>
<blockquote>
<p>Each party bears the burden to prove according to law the facts necessary to the success of their claim.</p>
</blockquote>
<p>&quot;According to law&quot; is not an extremely detailed explanation of what does and does not fly. My general impression eyeballing the jurisprudence is that clearly illegal stuff (typically: undisclosed phone recordings) gets excluded, but borderline stuff gets admitted.</p>
<p>A 2021 case, <a href="https://www.legifrance.gouv.fr/juri/id/JURITEXT000044327036/" rel="nofollow noreferrer">Cass. soc. 20-12.263</a>, at least makes it clear that there is no red-line rule. It examined the case of an employer firing an employee for cause using videosurveillance evidence, when the use of the videosurveillance system for the purpose of checking the employee’s activity was illegal. It said that</p>
<blockquote>


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<blockquote>
<p>L'illicéité d'un moyen de preuve (...) n'entraîne pas nécessairement son rejet des débats, le juge devant apprécier si l'utilisation de cette preuve a porté atteinte au caractère équitable de la procédure dans son ensemble, en mettant en balance le droit au respect de la vie personnelle du salarié et le droit à la preuve, lequel peut justifier la production d'éléments portant atteinte à la vie personnelle d'un salarié à la condition que cette production soit indispensable à l'exercice de ce droit et que l'atteinte soit strictement proportionnée au but poursuivi.</p>
</blockquote>
<blockquote>


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</blockquote>
<blockquote>
<p>That a given piece of evidence was illegally obtained (...) does not necessarily exclude it from trial. The judge should evaluate whether the use of that piece of evidence attacked the fairness of the whole procedure, balancing the employee's right to privacy with the right to obtain proof. The latter can justify producing pieces of evidence that violates an employee's privacy, under the condition that this production is absolutely necessary [for the purpose of proof] and that the violation is strictly proportional to the aim.</p>
</blockquote>


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</blockquote>
<p><em>NB: In that exact case, the Cour de Cassation found that the lower court did not evaluate the abovementioned balance (the lower court incorrectly asserted that the videosurveillance was legal and therefore did not consider excluding the evidence). The employee &quot;won&quot; inasmuch as the case was remanded rather than affirmed, but there is a decent chance that the lower court will find for the employer anyway after doing the balancing act.</em></p>


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Question Title: What if a previous US President was found ineligible to be President?

Question Body: <p>Purely a hypothetical question:  What if a previous US President was found ineligible to be President?</p>
<p>Lets say we found Obama's <em>&quot;real&quot;</em> birth certificate and he was not born in the US.</p>
<p>What would happen?  Are there any provisions for this?  Would laws be invalidated?  Supreme Court justices be removed?  Would he be subject to some sort or prosecution?  What about treaties signed?  Would we remove him from &quot;history&quot; and say the Vice President was elected (I doubt that, as he wasnt sworn in)?</p>
<p>As I said, purely hypothetical.</p>


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Answer 1: <blockquote>
<p>What would happen?</p>
</blockquote>
<p>Nothing.</p>
<p>The Courts would deem it to be a political question that was decisively and conclusively resolved when Congress ratified the electoral vote and the President was sworn in.</p>
<p>To the extent that there was a possibility of challenging it, this would be considered untimely not later than the end of the President's term.</p>


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Answer 2: <p>In the hypothetical past, some person could petition for writ of <a href="https://www.law.cornell.edu/wex/quo_warranto" rel="nofollow noreferrer">quo warranto</a>, and if your alternative reality can be proven, the person may be removed from office, indeed this happened a half a year ago in New Mexico, with reference to Section 3 of the 14th Amendment. This would have no effect on the law and other actions taken while he was president, it would only impact his ability to appoint future judges and sign future laws. As far as I know, the Supreme Court has never entertained any such writ w.r.t. qualification for federal office.</p>


Tags: us-constitution, elections, us-president


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Question Title: Have any recent US court decisions cited English common law?

Question Body: <p>As I understand it, the common law system in the United States inherited the body of caselaw developed by English courts up until the US declared independence, at which point we started developing our own additions to common law. So, for example, <a href="https://en.wikipedia.org/wiki/Scrope_v_Grosvenor" rel="nofollow noreferrer">Scrope v. Grosvenor</a> (1389) should still be binding law in the US, in the vanishingly unlikely event that it should ever come up in a court case, unless it has been overridden by subsequent judgments. I'm curious to know if there are any US court cases within the past few decades that have cited pre-1776 English common law as binding precedent.</p>


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Answer 1: <p>Infamously, the Supreme Court majority in <a href="https://en.wikipedia.org/wiki/Dobbs_v._Jackson_Women%27s_Health_Organization" rel="nofollow noreferrer"><em>Dobbs v. Jackson Women's Health Organization</em></a>, <a href="https://www.law.cornell.edu/supremecourt/text/19-1392" rel="nofollow noreferrer">No. 19-1392 (2022)</a> cited English law from as long ago as the 13th century in order to inform their analysis of abortion. While this opinion has been widely criticized, it still represents a prominent recent use of pre-independence English common law. A quoted statement from <a href="https://en.wikipedia.org/wiki/Henry_de_Bracton" rel="nofollow noreferrer">Henry de Bracton</a>'s <em>De Legibus et Consuetudinibus Angliae</em>, probably written in the 1230s, must surely count as the oldest piece of common law heritage to be used by the Supreme Court in recent years:</p>
<blockquote>


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<blockquote>
<p>[If one has] struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide. (trans. T. Twiss, 1879, as cited in the case)</p>
</blockquote>
<blockquote>
<p>Si sit aliquis qui mulierem prægnantem percusserit vel ei venenum dederit, per quod fecerit abortivum, si puerperium iam formatum vel animatum fuerit, et maxime si animatum, facit homicidium. (Original Latin text, from the edition by G. E. Woodbine, 1923)</p>
</blockquote>


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</blockquote>
<p>Justice Alito's opinion also cites case law, such as <em>R v. Webb</em> (Q.B. 1602). He did not consider himself to be <em>bound</em> by such cases, or by Bracton, but he did use them as part of an argument that there was no historical common-law right to an abortion. If there were one, then it would be potentially capable of Constitutional protection and any U.S. domestic law would have to give way. But the historical common law, on its own, could not override a federal or state statute in that manner: it is just being studied in order to understand the scope of what the Constitution requires.</p>


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<p>Less controversially, certain English cases relating to civil liberties continue to be cited in recent U.S. decisions, although again not as &quot;binding precedent&quot;. They are used to help illuminate the historical context behind  provisions of the U.S. Constitution - which <em>is</em> the supreme law of the United States - rather than because they themselves are authoritative in that way.</p>
<p>For example, in the case of <a href="https://en.wikipedia.org/wiki/United_States_v._Jones_(2012)" rel="nofollow noreferrer"><em>United States v. Jones</em></a>, <a href="https://supreme.justia.com/cases/federal/us/565/400/" rel="nofollow noreferrer">565 U.S. 400 (2012)</a>, the Supreme Court had to consider whether installation of a GPS tracker on Jones's car was done in violation of the Fourth Amendment. That provision of the Constitution, enacted long before the invention of GPS or cars, says</p>
<blockquote>


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<blockquote>
<p>The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</p>
</blockquote>
<p>The majority opinion by Justice Scalia begins by calling back to a famous English case of 1765, known to have been influential for the drafting of this amendment:</p>
<blockquote>


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</blockquote>
<p>The majority opinion by Justice Scalia begins by calling back to a famous English case of 1765, known to have been influential for the drafting of this amendment:</p>
<blockquote>
<p>We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’ ” with regard to search and seizure. Brower v. County of Inyo, 489 U. S. 593, 596 (1989) (quoting Boyd v. United States, 116 U. S. 616, 626 (1886) ). In that case, Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis:


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“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” Entick, supra, at 817.</p>
</blockquote>
<p>Note that Justice Scalia is careful about his language here. He is not treating Lord Camden's opinion in <em>Entick</em> as binding precedent, to be applied to the facts in the <em>Jones</em> case. What he is doing is affirming a line of Supreme Court authority, in particular the 1886 case of <em>Boyd</em> in which Justice Bradley used pre-Revolution cases from England to characterize the Fourth Amendment's relation to personal property. It is the Fourth Amendment which provides the standard by which the police's conduct could be judged. The English case is important for understanding what the Amendment really means, but is cited here mainly for rhetorical effect.</p>


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<p>In the same way, lower courts in the U.S. are not bound by <em>Entick</em> directly, but they are bound by the Supreme Court's analysis of the Fourth Amendment in its various cases. That analysis is informed by <em>Entick</em> and so other courts may also consider it to be persuasive or useful, although they would very rarely have to reach back to &quot;first principles&quot; rather than more recent applicable precedent.</p>


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<p>Similar cases on search and seizure can be decided without reference to English authority. For example, the majority opinion in <a href="https://en.wikipedia.org/wiki/Carpenter_v._United_States" rel="nofollow noreferrer"><em>Carpenter v. United States</em></a>, <a href="https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf" rel="nofollow noreferrer">138 S. Ct. 2206 (2018)</a> contains a few passing references to the general history and scope of the Fourth Amendment, including a citation of <em>Boyd</em>, but doesn't delve into any deep exegesis using historical English law. Some of the dissenting opinions do - between Justices Thomas, Alito and Gorsuch, we see citations of <em>Entick</em>, of cases of comparable vintage such as <em>Wilkes v. Wood</em> 19 How. St. Tr. 1153 (K. B. 1763), and of learned treatises by Locke, Blackstone, and Coke.</p>


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Answer 2: <h2>There are many, but they mostly date from the 18th and 19th centuries</h2>
<p>Each of the states except Louisiana (a civil law jurisdiction) passed statutes &quot;receiving&quot; English <a href="https://en.wikipedia.org/wiki/Law_of_the_United_States#American_common_law" rel="nofollow noreferrer">common law</a> to the extent that it is not repugnant to domestic law or indigenous conditions, or expressly forbidden (like bills of attainder).</p>
<p>In the early post-revolution period, English case law was commonly cited because:</p>
<ol>
<li>Local appeals courts had not yet made many decisions, and</li>
<li>English cases were more widely reported and therefore more available even on the western side of the Atlantic.</li>
</ol>
<p>This became less and less common as American precendents were set and more widely distributed.</p>
<blockquote>


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</ol>
<p>This became less and less common as American precendents were set and more widely distributed.</p>
<blockquote>
<p>Today, in the words of Stanford law professor Lawrence M. Friedman: &quot;American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to Blackstone; but current British law almost never gets any mention.&quot;</p>
</blockquote>
<p>When they do, they are usually citing principles that are so basic that they could go without saying.</p>


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Question Title: Must Frank the farmer indicate the macro nutrient contents of his fresh, direct to consumer milk?

Question Body: <p>Frank the farmer milks his cattle and bottles the milk directly from the udders with no pre treating or processing involved. He then brings these bottles of fresh milk to various farmers' markets where he sells them directly to consumers. Do normal food product labelling requirements as apparently govern other packaged foods sold in grocery stores bind Frank, or can the bottles bear a label simply of “Frank’s fresh milk (1 litre)”?</p>
<p>What about Abdul the fruit seller who sells imported fruits and vegetables unpackaged that hail from all over the world? Are these bound by any different consumer information laws than is Frank’s milk?</p>


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Answer 1: <p>For raw drinking milk (RDM), read the government's <a href="https://www.food.gov.uk/business-guidance/raw-drinking-milk-guidance" rel="nofollow noreferrer">Raw Drinking Milk Guidance</a>. In England and Wales, Frank's raw milk containers must be labelled with the words &quot;raw milk&quot;. They must also carry this warning:</p>
<blockquote>
<p>This milk has not been heat-treated and may therefore contain
organisms harmful to health.</p>
</blockquote>
<p>In Wales the container or the point of sale must <em>also</em> display the following:</p>
<blockquote>
<p>The Food Standards Agency strongly advises that it should not be
consumed by children, pregnant women, older people or those who are
unwell or have chronic illness.</p>
</blockquote>


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<blockquote>
<p>The Food Standards Agency strongly advises that it should not be
consumed by children, pregnant women, older people or those who are
unwell or have chronic illness.</p>
</blockquote>
<p>Abdul's loose produce must be displayed with labels depending on whether the produce falls under the Specific Marketing Standard (SMS) or General Marketing Standard (GMS) or neither. Read the <a href="https://www.gov.uk/guidance/comply-with-marketing-standards-for-fresh-fruit-and-vegetables" rel="nofollow noreferrer">guidance on Fresh fruit and vegetable marketing standards</a>.</p>
<p>For loose produce to which the SMS applies, the label must show:</p>
<ul>
<li>the country of origin in full (do not use abbreviations or flags)</li>
<li>quality class</li>
<li>variety or type (if required)</li>
</ul>
<p>For loose produce to which the GMS applies, the label must only show the country of origin.</p>


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<li>quality class</li>
<li>variety or type (if required)</li>
</ul>
<p>For loose produce to which the GMS applies, the label must only show the country of origin.</p>
<p>The above labelling requirements do not apply to loose produce to which neither the SMR nor GMS apply (e.g. coconuts).</p>


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Question Body: <p>The State of Montana has passed <a href="http://laws.leg.mt.gov/legprd/LAW0203W$BSRV.ActionQuery?P_SESS=20231&amp;P_BLTP_BILL_TYP_CD=SB&amp;P_BILL_NO=419&amp;P_BILL_DFT_NO=&amp;P_CHPT_NO=&amp;Z_ACTION=Find&amp;P_ENTY_ID_SEQ2=&amp;P_SBJT_SBJ_CD=&amp;P_ENTY_ID_SEQ=" rel="nofollow noreferrer">SB419</a> which bans TikTok within Montana.</p>
<p>This <a href="https://www.washingtonpost.com/business/2023/05/17/tiktok-ban-montana-china-data-chinese-government/6d23a7ac-f509-11ed-918d-012572d64930_story.html" rel="nofollow noreferrer">Washington Post article</a> indicates that TikTok could avoid the ban provided its ownership was not based in, &quot;any country designated as a foreign adversary&quot; by the bill's effective date of January 2024.</p>


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<p>This seems like this would constitute a bill of attainder which is expressly prohibited by Article I, Sections 9 and 10 of the Constitution. Is this accurate or does the bill's contingency clause for voiding create a loophole to avoid becoming a bill of attainder?</p>


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Answer 1: <p>There are potential constitutional challenges to the bill, but as noted by <a href="https://law.stackexchange.com/a/92533/9517">the answer from user6726</a>, a bill of attainder challenge would not be a very strong one. Better arguments that the legislation is unconstitutional would include (in approximate order of legal strength) arguments that:</p>
<ul>
<li><p>it violates the &quot;<a href="https://en.wikipedia.org/wiki/Dormant_Commerce_Clause" rel="noreferrer">dormant commerce clause</a>&quot; by unduly regulating interstate commerce,</p>
</li>
<li><p>it is <a href="https://www.brookings.edu/blog/techtank/2019/07/18/why-national-preemption-has-become-a-technology-policy-flash-point/" rel="noreferrer">pre-empted by federal statutes</a> which have &quot;occupied the field&quot; of social media regulation (e.g. with the <a href="https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act" rel="noreferrer">Digital Millennium Copyright Act</a>),</p>
</li>


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</li>
<li><p>it purports to make foreign policy which is in <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10808" rel="noreferrer">the exclusive jurisdiction of the federal government</a> (in connection with its  &quot;any country designated as a foreign adversary&quot; provision),</p>
</li>
<li><p>it is effectively regulating conduct outside the territorial scope of the state's authority to regulate conduct (a new SCOTUS case law doctrine from the <a href="https://www.supremecourt.gov/opinions/22pdf/21-468_5if6.pdf" rel="noreferrer">California pork regulation case</a> decided this month), and</p>
</li>
<li><p>it unduly burdens free speech since TikTok is analogous to a <a href="https://www.mtsu.edu/first-amendment/article/1150/taxation-of-newspapers" rel="noreferrer">modern magazine or newspaper</a> and is regulated more heavily than non-expressive content on a non-content neutral basis.</p>
</li>
</ul>


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Answer 2: <p>In light of extant case law, this is not a Bill of Attainder. <a href="https://scholar.google.com/scholar_case?case=11884364268460571560&amp;q=351%20F.3d%201198&amp;hl=en&amp;as_sdt=20006#p468" rel="noreferrer">Nixon v. Administrator of General Services</a>, 433 US 425 identifies the essential characteristic of such a forbidden bill:</p>
<blockquote>
<p>a law that legislatively determines guilt and inflicts punishment upon
an identifiable individual without provision of the protections of a
judicial trial</p>
</blockquote>
<p>This case was in response to a bill passed by congress directing the Administrator of
General Services to take custody of Nixon’s presidential papers and tape recordings, specifically identifying Nixon by name. The court rejected an argument that


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&quot;an individual or defined group is attainted whenever he or it is compelled to bear burdens which the individual or group dislikes&quot;. The crucial question is whether the bill enacts a &quot;punishment&quot;. Analogous to the prohibition of using products by Kaspersky Labs (<a href="https://scholar.google.com/scholar_case?case=3556115024232984424&amp;q=909%20F.3d%20446&amp;hl=en&amp;as_sdt=20006" rel="noreferrer">Kaspersky Lab, Inc. v. US Dept. of Homeland Sec.</a>, 909 F. 3d 446) where Congress prohibited using those products in certain government computers but it was found that the restriction &quot;is not a punishment but a prophylaxis necessary to protect federal computer systems from Russian cyber-threats&quot;, the Montana law is not a punishment, it is prophylaxis necessary to protect the citizens of Montana from a threat (per the Montana legislature). No person is found guilt of a crime by this law – any punishment (the daily fine for violating the law) is determined


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to protect the citizens of Montana from a threat (per the Montana legislature). No person is found guilt of a crime by this law – any punishment (the daily fine for violating the law) is determined based on general principles of law not legislative fiat, and is imposed by a court of law after a trial. If you violate this law, you will be tried in court and if found guilty, you will be punished – hence the law is not a bill of attainder.</p>


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Question Title: Is a Denial of a Motion to Compel Arbitration reviewed de novo by the Appellate Division?

Question Body: <p>Appeals of an arbitration award are reviewed <em>de novo</em>. Does the same apply to the denial of a Motion to Compel Arbitration? In other words, if the trial court denied a motion to compel arbitration, is the appealing party entitled to ask the Appellate Division to review matters of fact or only matters of law?</p>
<p>Assuming it is reviewed <em>de novo</em>, is the appellant specifically required to ask for <em>de novo</em> review or it is done implicitly?</p>


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Answer 1: <p>The appellate court reviews based upon the trial court record.</p>
<p>To the extent that it turns on questions of law, including interpretations of written documents whose authenticity is not in question, this review is <em>de novo</em>. Likewise, decisions on this issue made on a paper record and argument of counsel, without an evidentiary hearing that resolved material disputes of fact between the parties, are reviewed <em>de novo</em>.  So are procedural question, like whether an evidentiary hearing should have been held.</p>
<p>But, in cases where there is a mixed issue of fact and law, the appellate court defers to all findings of fact made in the trial court from an evidentiary hearing held in the trial court that are supported by admissible evidence in the trial court record.</p>


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<p>Since the material facts relating to the enforceability of arbitration are frequently not in dispute in a case like this and arbitration rulings are often made without evidentiary hearings, as for example, <a href="https://www.govinfo.gov/content/pkg/USCOURTS-njd-3_21-cv-12986/pdf/USCOURTS-njd-3_21-cv-12986-0.pdf" rel="nofollow noreferrer">in this case</a> and <a href="https://www.govinfo.gov/content/pkg/USCOURTS-njd-2_19-cv-13545/pdf/USCOURTS-njd-2_19-cv-13545-0.pdf" rel="nofollow noreferrer">in this case</a>, an appellate court often does engage in <em>de novo</em> review.</p>
<p>But, the appellate court is not permitted to re-weigh the credibility of witnesses, for example, in a manner contrary to the trial court's findings of fact supported by admissible evidence in the record, if an evidentiary hearing was held and this was necessary to resolve disputed issues of fact that were material to the question of whether arbitration could be compelled.</p>


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<p>While what I have said above is somewhat different than the standards, for example, in New Jersey as stated in <a href="https://www.njcourts.gov/sites/default/files/courts/appellatestandards.pdf" rel="nofollow noreferrer">this document</a> quoted below, this is to some extent a function of the facts of the referenced cases. None of which involve a refusal to compel arbitration following an evidentiary hearing involving disputed findings of fact.</p>
<blockquote>
<ol>
<li><p>Appellate courts &quot;review de novo the trial court's judgment
<strong>dismissing the complaint and compelling arbitration</strong>.&quot; Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 131 (2020). See Skuse v. Pfizer,
Inc., 244 N.J. 30, 46 (2020).</p>
</li>
<li><p>&quot;Under N.J.S.A. 2A:24-7, either party <strong>may move to confirm an award</strong> within three months of the date of its delivery. Once
confirmed, the award is as conclusive as a court judgment. N.J.S.A.


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confirmed, the award is as conclusive as a court judgment. N.J.S.A.
2A:24-10.&quot; Policeman's Benevolent Ass'n, Loc. 292 v. Borough of N.
Haledon, 158 N.J. 392, 398 (1999).</p>
</li>
<li><p>N.J.S.A. 2A:24-8 provides a court <strong>may vacate an arbitration award</strong> for: 1) corruption, fraud or undue means; 2) evident
partiality or corruption in the arbitrators; 3) misconduct in refusing
to postpone the hearing, upon sufficient cause being shown, or in
refusing to hear evidence, pertinent and material to the controversy,
or of any other misbehaviors prejudicial to the rights of any party;
or 4) the arbitrators exceeded or so imperfectly executed their powers
that a mutual, final and definite award upon the subject matter
submitted was not made.</p>
</li>
<li><p>&quot;Judicial review <strong>of an arbitration award</strong> is very limited.&quot; Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting


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submitted was not made.</p>
</li>
<li><p>&quot;Judicial review <strong>of an arbitration award</strong> is very limited.&quot; Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting
Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J.
268, 276 (2010)). &quot;To foster finality and 'secure arbitration's speedy
and inexpensive nature,' reviewing courts must give <strong>arbitration awards</strong>
'considerable deference.'&quot; Borough of Carteret v. Firefighters Mut.
Benevolent Ass'n, Loc. 67, 247 N.J. 202, 211 (2021) (quoting Borough
of E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 201-02
(2013)). &quot;[A]n arbitrator's award resolving a public sector dispute
will be accepted so long as the award is 'reasonably debatable.'&quot;
Borough of Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67,
247 N.J. 202, 211 (2021) (quoting Borough of E. Rutherford v. E.
Rutherford PBA Loc. 275, 213 N.J. 190, 201 (2013)). &quot;An arbitrator's


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247 N.J. 202, 211 (2021) (quoting Borough of E. Rutherford v. E.
Rutherford PBA Loc. 275, 213 N.J. 190, 201 (2013)). &quot;An arbitrator's
award is not to be cast aside lightly. It is subject to being vacated
only when it has been shown that a statutory basis justifies that
action.&quot; Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017)
(quoting Kearny PBA Loc. # 21 v. Town of Kearny, 81 N.J. 208, 221
(1979)).</p>
</li>
<li><p>Certain statutes, including the Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30, set &quot;strict limits on the
appeal <strong>of an arbitration award.</strong>&quot; Riverside Chiropractic Grp. v.
Mercury Ins. Co., 404 N.J. Super. 228, 235 (App. Div. 2008).</p>
</li>
</ol>
</blockquote>


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appeal <strong>of an arbitration award.</strong>&quot; Riverside Chiropractic Grp. v.
Mercury Ins. Co., 404 N.J. Super. 228, 235 (App. Div. 2008).</p>
</li>
</ol>
</blockquote>
<p>In support of a contrary view that even the findings of fact of the trial court are subject to <em>de novo</em> review are statements like this one (from <a href="https://www.criminalcivillawyer.com/wp-content/uploads/Arbitration-Clauses.pdf" rel="nofollow noreferrer">this case</a>):</p>
<blockquote>
<p>The existence of a valid and enforceable arbitration agreement poses a
question of law, and as such, our standard of review of an order
denying a motion to compel arbitration is <em>de novo</em>. <em>Hirsch v. Amper
Fin. Servs., L.L.C.</em>, 215 N.J. 174, 186 (2013); <em>Frumer v. Nat'l Home
Ins. Co</em>., 420 N.J. Super. 7, 13 (App. Div. 2011).</p>
</blockquote>


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Fin. Servs., L.L.C.</em>, 215 N.J. 174, 186 (2013); <em>Frumer v. Nat'l Home
Ins. Co</em>., 420 N.J. Super. 7, 13 (App. Div. 2011).</p>
</blockquote>
<p>But, the cited cases don't mean precisely what they are purported to say in the rare case where the decision rests, for example, on resolved a disputed credibility decision between two witnesses over whether the purported arbitration document is authentic in an evidentiary hearing. Those cases are merely <em>dicta</em> as applied to that fact pattern. The case containing this quote was decided at the trial court level on the pleadings alone without receiving any testimony or documents in an evidentiary hearing (see footnote 1 at page 2).</p>
<p><em>Hirsch</em> was <a href="https://casetext.com/case/hirsch-v-amper-fin-servs-2" rel="nofollow noreferrer">decided in motion practice without an evidentiary hearing</a> (<em>see</em> page 184) and the case itself says (at page 186):</p>
<blockquote>


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<blockquote>
<p>Orders compelling arbitration are deemed final for purposes of appeal.
R. 2:2–3(a); GMAC v. Pittella, 205 N.J. 572, 587, 17 A.3d 177 (2011).
<strong>We review those legal determinations de novo</strong>. See Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230
(1995) (“A trial court's interpretation of the law and the legal
consequences <strong>that flow from established facts</strong> are not entitled to any
special deference.”).</p>
</blockquote>
<p>The decision in <em>Frummer</em> was similarly qualified and also relied upon interpretation of written instruments whose execution was undisputed that was resolved in motion practice without any mention of an evidentiary hearing. The Court in <em>Frummer</em> said at page 13:</p>
<blockquote>
<p>We review the denial of a request for arbitration <em>de novo</em>. See Alfano
v. BDO Seidman, LLP, 393 N.J.Super. 560, 572-73, 925 A.2d 22 (App.Div.


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<blockquote>
<p>We review the denial of a request for arbitration <em>de novo</em>. See Alfano
v. BDO Seidman, LLP, 393 N.J.Super. 560, 572-73, 925 A.2d 22 (App.Div.
2007). &quot;A `trial court's interpretation of the law and the legal
consequences <strong>that flow from established facts</strong> are not entitled to
any special deference.'&quot; Id. at 573, 925 A.2d 22 (quoting Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d
1230 (1995)).</p>
</blockquote>
<p><em>See also</em> <a href="https://law.justia.com/cases/new-jersey/appellate-division-published/2015/a2502-14.html" rel="nofollow noreferrer">this case</a> stating that:</p>
<blockquote>
<p>The     existence      of    a   valid     and     enforceable<br />
arbitration agreement poses a question of law, and as such, our
standard of review of an order denying a motion to compel arbitration
is <em>de novo</em>. <em>Hirsch    v.   Amper      Fin.    Servs.,      LLC</em>,<br />


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standard of review of an order denying a motion to compel arbitration
is <em>de novo</em>. <em>Hirsch    v.   Amper      Fin.    Servs.,      LLC</em>,<br />
215       N.J.    174,    186 (2013); <em>Frumer v. Nat'l Home Ins. Co</em>.,
420 N.J. Super. 7, 13 (App. Div. 2011).</p>
</blockquote>
<p>Again, however, I would question whether this holding is <em>dicta</em> because it involves the interpretation of written instruments whose authenticity is in doubt, and not, for example, a dispute over whether the person who signed the documents is the same person who is a party to this litigation and not someone else with a very similar name that was resolved in an evidentiary hearing.</p>


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Question Title: Is it legal to drive in reverse on a non-divided road that has a speed limit of more than 80 km/h?

Question Body: <p>In <em>&quot;The Official Ministry of Transportation (MTO) Driver’s Handbook&quot;</em>, they <a href="https://www.ontario.ca/document/official-mto-drivers-handbook/changing-directions" rel="noreferrer">said</a></p>
<blockquote>
<p>It is illegal to drive in reverse on a divided road that has a speed limit of more than 80 km/h.</p>
</blockquote>
<p>Is it legal to drive in reverse on a <strong>non-divided</strong> road that has a speed limit of more than 80 km/h?</p>


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Answer 1: <p>The only <em>specific</em> prohibition of &quot;backing&quot; is at <a href="https://www.ontario.ca/laws/statute/90h08#BK263" rel="noreferrer">s. 157 of the <em>Highway Traffic Act</em></a>:</p>
<blockquote>
<p>157 (1) No driver of a vehicle shall back the vehicle upon the roadway or shoulder of any highway divided by a median strip<sup>1</sup> on which the speed limit is in excess of 80 kilometres per hour ...</p>
</blockquote>
<p>However, there is a careless driving prohibition:</p>
<blockquote>
<p>130 (1) Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway.</p>
</blockquote>
<p>And there is the <em>Criminal Code</em>'s dangerous driving offence:</p>
<blockquote>


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</blockquote>
<p>And there is the <em>Criminal Code</em>'s dangerous driving offence:</p>
<blockquote>
<p>320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.</p>
</blockquote>
<p>It would be misleading to say that it is <em>absolutely</em> &quot;legal&quot; or &quot;allowed&quot; to &quot;drive in reverse on a non-divided road that has a speed limit of more than 80 km/h&quot;. It just isn't prohibited by s. 157(1) of the <em>Highway Traffic Act</em>.</p>
<hr />
<p><sup>1. Note that &quot;divided&quot; in the question was just a paraphrase of &quot;divided by a median strip.&quot; There are many sections of road in Ontario that are not divided in that sense, with speed limits above 80 km/h, including much of the trans-Canada highway.</sup></p>


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Answer 2: <p>I would interpret the rules, including those that address divided highways, as saying:</p>
<ol>
<li><p>It is unlawful to operate a vehicle in a manner that is needlessly unsafe.</p>
</li>
<li><p>Going backward on areas that are in or adjacent to traffic lanes with a speed limit of 80mph or higher is <em>presumptively</em> needlessly unsafe.</p>
</li>
</ol>
<p>Situations may arise in which a vehicle would have no practical alternative except to drive backward for some distance on the shoulder of a high-speed divided road.  If a collision occurs in the middle of the road and a motorist manages to stop just a foot or two before it, the normal prohibition against backing up would not be interpreted as forbidding the motorist from backing up <em>to the extent necessary to clear the obstruction</em>.</p>


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<p>I would guess that rules about road design probably require the posting of speed limits below 80km/h on divided carriageways which are adjacent to parking spaces or directly connected to driveways.  If a narrow driveway is connected to a road, it generally be expected that people would back from the driveway onto the road.  Motorists should make reasonable effort to avoid traveling backward further than necessary, but there are generally no precise rules because it's imposslble to anticipate what courses of action would or would not be practical in every imaginable scenario.</p>


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Question Body: <p>Unlike most game mods (which are, to my knowledge, a distribution of a copy of modified game software), I'm writing a small desktop application which allows users to make their own custom changes (modifications/mods) to (their own copy) of the game by using the app.</p>
<p>The app will make a copy of some of the game's files (that they have) and then modify those copies.  0% of the app is, in of itself, copyrighted material (the game's code, etc.).  I am writing this application from scratch.  It is 100% my own creation.</p>
<p>In addition, it doesn't contain any logos, images, etc., from the game, and am I not planning on naming it anything which would make others feel that the application (or I) am associated with the game's publisher (or developers).</p>
<p><em><strong>Edit 1:</strong></em>


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<p><em><strong>Edit 1:</strong></em>
I figured out how to modify this game by manually sorting through (and figuring out) gibberish with a hex editor.  (I did not decompile the game's files to see the original source code.)  My application primarily makes hex edits.</p>
<p><strong>Question:</strong></p>
<p>Assuming that all of how I described the application above is true, if I distribute it on the internet free of charge, would there be any possibility of any potential copyright infringement, lawsuits, complaints, etc., from the game's publisher or developers to your knowledge?</p>
<p>Can they possibly &quot;get me&quot; for distributing my own software for free, even if my software literally doesn't contain any of their property (despite having the capability to modify their property)?</p>


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<p>By my understanding of articles like this, <a href="https://hackerbot.net/faq/54-are-game-hacks-legal" rel="nofollow noreferrer">https://hackerbot.net/faq/54-are-game-hacks-legal</a>, I may be in the clear.  But articles like this <a href="https://mttlr.org/2012/11/gaming-mods-and-copyright/" rel="nofollow noreferrer">https://mttlr.org/2012/11/gaming-mods-and-copyright/</a> make me feel like maybe I shouldn't have started hacking games to begin with!</p>
<p><strong>Important Note:</strong></p>
<p>I am aware of issues with using game mods/hacks to get an unfair advantage in online competitive environments.</p>
<p>The primary purpose of my software is NOT to give an advantage in competitive online gaming, etc.  It's merely to enjoy the game and play it causally.  (Bring life back to a mostly abandoned game.)</p>


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<p>It <em>can</em> technically be used to get an advantage with gameplay.  Although I highly doubt this will ever be an issue (of the only two online competitive gaming platforms that I'm aware of, I am a moderator of one of them, and know the moderator of the other one), should it be that, in order me to avoid facing any consequences for distributing this software, it is necessary for me to make my app put a &quot;watermark&quot; of some kind in the modified copy of the game which it makes, let me know!</p>
<hr />
<p><strong>Edit 2: (Question 2)</strong>
(This edit is a result of Neil Meyer's comment about the specific EULA of the game in question.)</p>
<p>The EULA of the (1999 PC) game in question, states (among other things):</p>
<blockquote>
<p>You may not copy the Software (except as specifically permitted
herein) and, except as expressly permitted by law, you may not modify,
translate, reverse engineer, decompile, disassemble or create
derivative works of the Software.</p>


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herein) and, except as expressly permitted by law, you may not modify,
translate, reverse engineer, decompile, disassemble or create
derivative works of the Software.</p>
</blockquote>
<p>Clearly they do not permit copying the game (which I am not).  I am therefore zeroing in on the clause:</p>
<blockquote>
<p>except as expressly permitted by law</p>
</blockquote>
<p>Does this mean that, if it's legal in the country where I live, then they (the publisher) do not object if I provide users (who also live in a country where it's legal to modify PC games) a means to modify this PC game?</p>


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Answer 1: <p>The legal question is whether you would be vicariously liable for copyright infringement, by distributing this software. You can read <a href="https://www.ce9.uscourts.gov/jury-instructions/node/277" rel="nofollow noreferrer">here</a> the requirements for vicarious liability, the principles having been established by cases such as <a href="https://supreme.justia.com/cases/federal/us/545/913/" rel="nofollow noreferrer">MGM v. Grokster</a>, A&amp;M Records v. Napster, Perfect10 v. Giganews. First, someone else must be found guilty of copyright infringement. Then, the plaintiff must prove that you directly benefited financially from the infringement, that you had the right or ability to supervise or control the infringement, and you failed to do so.</p>


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<p>You say you are not benefiting financially from infringement by others which would defeat an argument for vicarious infringement, but &quot;not benefiting financially&quot; is broader than &quot;doesn't charge the user&quot; (ad revenue is a financial benefit, as relevant to Grokster). Even if you were benefiting financially, it's not obvious that you can control what others do with your software. The primary holding in Grokster is</p>
<blockquote>
<p>that one who distributes a device with the object of promoting its use
to infringe copyright, as shown by clear expression or other
affirmative steps taken to foster infringement, is liable for the
resulting acts of infringement by third parties</p>
</blockquote>


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to infringe copyright, as shown by clear expression or other
affirmative steps taken to foster infringement, is liable for the
resulting acts of infringement by third parties</p>
</blockquote>
<p>Grokster does not resolve a number of issues (which were raised in the concurring opinions) as to the role of non-infringing uses of software. We know that Grokster intended the software to be used to infringe copyright, we do not know whether your software has a non-infringing use. The court mentions the earlier finding that &quot;distribution of a commercial product capable of substantial noninfringing uses could not give rise to contributory liability for infringement&quot;, which they don't reject and partially support saying</p>
<blockquote>
<p>in the absence of other evidence of intent, a court would be unable to
find contributory infringement liability merely based on a failure to
take affirmative steps to prevent infringement, if the device


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find contributory infringement liability merely based on a failure to
take affirmative steps to prevent infringement, if the device
otherwise was capable of substantial noninfringing uses. Such a
holding would tread too close to the Sony safe harbor.</p>
</blockquote>


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Answer 2: <p>Aside from what user6726 discusses, there's also an issue when software basically exists to aid and abet a user's violation of Terms of Service.  This is what gets all the MMO bot software in trouble. MMO makers have prevailed on claims of <em>tortious interference</em>, which means party A and party B have a contract (the ToS), and party C is interfering with their contract by tempting users to violate.  Their success at applying tortious interference is notable because it's a very hard claim to prove, with 7 elements that all must be shown.</p>
<p>The only issue I can really see is if your software enables people who don't own a copy of the game to just download an illegal copy off BitTorrent etc.  Then, you may be seen as abetting copyright infringement.</p>
<p>Well, if it is a server based game such as an MMO - if you wanted to create a &quot;private server&quot; for, say, <em>Tabula Rasa</em> -that might be legally complicated.</p>


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Question Title: Changing a Will

Question Body: <p>Person XYZ goes to an attorney and hires to the attorney to draw up a will. The attorney produces the will and it is signed.</p>
<p>After several years, the person goes back to the attorney and asks the attorney to change the  will. The attorney believes that the XYZ person is no longer legally competent but the attorney is not sure. Should the  attorney update the will?</p>
<p>This question is being asked for educational purposes only. I am not looking for legal advice.</p>


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Answer 1: <p>The attorney would consider <a href="https://www.courts.wa.gov/court_rules/pdf/RPC/GA_RPC_01_14_00.pdf" rel="nofollow noreferrer">RPC 1.14</a>, which means that he &quot;shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client&quot;. But if he</p>
<blockquote>
<p>reasonably believes that the client has diminished capacity...and
cannot adequately act in [his] own interest, the lawyer may take
reasonably necessary protective action, including consulting with
individuals or entities that have the ability to take action to
protect the client and, in appropriate cases, seeking the appointment
of a guardian ad litem, conservator or guardian.</p>
</blockquote>
<p>So...</p>
<blockquote>
<p>The testator must know the natural objects of their bounty (i.e., be
aware of their spouse and children, if any).</p>
<p>The testator must comprehend the kind and character of their property


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<p>The testator must know the natural objects of their bounty (i.e., be
aware of their spouse and children, if any).</p>
<p>The testator must comprehend the kind and character of their property
(i.e., know approximately their net worth and what kind of assets they
own).</p>
<p>The testator must understand the nature and effect of the act (i.e.,
realize that it is indeed a will they are signing and what that
means).</p>
<p>The testator must be able to make a disposition of their property
according to a plan formed in their mind.</p>
</blockquote>


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Question Title: Can political parties becoming public?

Question Body: <p>Can political parties become public?</p>
<p>For example, could the Democrat and Republican parties in the US carry out initial public offerings (IPOs), listing shares on NASDAQ and NYSE?</p>


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Answer 1: <h2>not in <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></h2>


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<p>Germany has laws about founding, operating and financing political parties, the <a href="https://www.bmi.bund.de/DE/themen/verfassung/parteienrecht/informationen-zur-parteigruendung/informationen-zur-parteigruendung-node.html" rel="nofollow noreferrer">Parteiengesetz</a> which demands certain organisatorial structures, and the <a href="https://www.bmi.bund.de/DE/themen/verfassung/parteienrecht/parteienfinanzierung/parteienfinanzierung.html" rel="nofollow noreferrer">Parteifinanzierungsgesetz</a>, which is very explicit about how they can finance themselves and what a party needs to report. The only allowed gains are property proceeds (like from owning property or selling goods), membership fees, gifts to the party, and state sponsorship. Also, non-citizens are not allowed to give to a party unlimitedly. The parties also are also obligated under the basic law to report all financing they get, down to the cent. Their organisation form is strictly limited:</p>
<blockquote>


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<blockquote>
<p>Parteien sind frei gebildete <strong>Personenvereinigungen</strong> im Sinne des Artikels 9 Absatz 1 GG, die sich auf der Basis des privaten Rechts nach den <strong>vereinsrechtlichen Regelungen des Bürgerlichen Gesetzbuches</strong> (§§ 21 bis 79 Bürgerliches Gesetzbuch - BGB) gründen. Sie sind in der Regel nicht rechtsfähige Vereine</p>
</blockquote>
<p>This precludes them from being Aktiengesellschaften: they have to be <em>organizations of people</em> (Personenvereinigungen) that follow the BGB, and thus are not allowed to organize as an AG under the <a href="https://www.gesetze-im-internet.de/aktg/" rel="nofollow noreferrer">Aktiengesetz</a>, which demands that an AG to not be an organization of people. So, a party can't be a stock company, and selling stock in a political party in Germany is not allowed under the framework and is thus neither possible nor legal.</p>


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Answer 2: <h2>Political parties <em>are</em> public</h2>
<p>They just aren’t public <em>companies</em>.</p>
<p>Their organisational structure is similar to clubs - the are operated by and for the benefit of their members and, subject to their rules,  they are open for anyone to join.</p>


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Answer 3: <p>In the US, most elected officials are state or local officials, and even elections for federal officials (representative in Congress, senator, and president) are conducted mostly under state law (with a few federal laws as well). Accordingly most regulation of political parties is done at the state level. As an example, the Vermont Secretary of State provides a <a href="https://sos.vermont.gov/elections/election-info-resources/parties/" rel="nofollow noreferrer">web page</a> with an overview of political parties.</p>
<p>In short, political parties must be organized in accordance with state law. Public notices must be provided informing the public about meetings of political parties so they can attend the meetings. Certain results of party meetings must be reported to the state. Funds used for political campaigns are heavily regulated.</p>


Tags: united-states, constitutional-law, us-constitution, lawyer, judge


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Question Title: Virginia right turn arrow street markings

Question Body: <p>In Virginia does a right turn arrow in white painted on the street <em>require</em> you to turn right?  Or does it also have to say right turn only?  Or perhaps there has to be a physical sign?  Or can this be ignored and you can continue straight, if the lane continues?</p>
<p>I guess the real question is what are the legal requirements to notify a driver that a lane is &quot;right turn <em>only</em>&quot; in Virginia?</p>


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Answer 1: <p><a href="/questions/tagged/virginia" class="post-tag" title="show questions tagged &#39;virginia&#39;" aria-label="show questions tagged &#39;virginia&#39;" rel="tag" aria-labelledby="tag-virginia-tooltip-container">virginia</a></p>
<p><a href="https://www.dmv.virginia.gov/webdoc/pdf/dmv39c.pdf" rel="noreferrer">Virginia Driver's Manual, section 2</a> on page 11 states:</p>
<blockquote>
<p>White lane arrows are curved or straight. If you are in a lane marked
with a curved arrow <strong>or</strong> a curved arrow and the word ONLY, you must turn
in the direction of the arrow. If your lane is marked with both a
curved and straight arrow, you may turn or go straight.</p>
</blockquote>
<p>The lane marking doesn't have to include the word only. A curved arrow is sufficient.</p>
<p>The above is from the second paragraph of the section on <strong>solid white lines</strong> on page 11. The first paragraph includes:</p>
<blockquote>


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<p>The above is from the second paragraph of the section on <strong>solid white lines</strong> on page 11. The first paragraph includes:</p>
<blockquote>
<p>Arrows used with white lines indicate which turn may be made from the
lane.</p>
</blockquote>
<p>Earlier in the document, it briefly mentions signs that sign lane turning directions but there's no information on whether signs are required in addition to lane markings.</p>


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Answer 2: <h2>You must turn</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 <a href="https://legislation.nsw.gov.au/view/html/inforce/current/sl-2014-0758#sec.92" rel="noreferrer">road rules</a> state:</p>
<blockquote>
<p><strong>92   Traffic lane arrows</strong></p>
<p>(1)  If a driver is driving in a marked lane at an intersection (except a roundabout) and there are traffic lane arrows applying to the lane, the driver must—</p>
<p>(a)  if the arrows indicate a single direction—drive in that direction, or</p>
<p>(b)  if the arrows indicate 2 or more directions—drive in one of those directions.</p>
</blockquote>


Tags: traffic, driving, virginia


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Question Title: Administering a will in Mississippi

Question Body: <p>Mississippi will situation. My father recently passed and has a now discovered will (we had no knowledge prior). My brother and I are named executors of the will but have only been provided copies by a no executor and her attorney. We have asked for the original will but they refuse to provide it. Do we have to administer the will without ever seeing and obtaining an original for our attorney? Do we even have a right to the original will?</p>


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Answer 1: <p><a href="https://law.justia.com/codes/mississippi/2020/title-91/chapter-7/" rel="noreferrer">Mississippi law</a> says that (MS Code §91-7-5)</p>
<blockquote>
<p>The chancery court of the proper county, on being informed that any
person has the last will and testament of a testator or testatrix, may
compel such person to produce it</p>
</blockquote>
<p>You cannot administer a will without first filing it. The court will care about the original will, which will either be declared valid or invalid. An interested person could contest the validity of the will, and if the reasons are sufficient, the will could be set aside in which case (barring the later discovery of a valid will), the estate is divided according to Mississippi's intestate succession laws.</p>
<p>When the will is filed in court, you can obtain a copy from the clerk for a small fee.</p>


Tags: wills, mississippi


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Question Title: Is it legal to use force against a person who is illegally trying to disconnect a hospital patient&#39;s life support with intent to kill the patient?

Question Body: <p>Alice is visiting Bob, who is on life support in a hospital, when Mallory comes into the room and tries to disconnect Bob's life support with intent to kill Bob. Is Alice allowed to use force against Mallory to protect Bob? There is no euthanasia law or other law allowing Mallory to disconnect Bob's life support, and Bob is conscious and actively objects, but is not capable of stopping Mallory on his own.</p>


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Answer 1: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p>It depends on Alice's belief about who Mallory is and what Mallory is doing and whether Alice's force was reasonable.</p>
<p>If Alice is aware that Mallory's action is lawful, then Alice cannot use force to protect Bob. Is Mallory a doctor who is lawfully withdrawing treatment? (You say there is &quot;no law allowing Mallory to disconnect Bob's life support&quot; but I'm not aware of a jurisdiction that requires indefinite treatment regardless of the circumstances.)</p>


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<p>If Alice honestly believes Mallory is attempting to unlawfully kill Bob, Alice can use force to protect Bob. Is Bob on life support because of Mallory's previous attempt on his life; is Mallory a hitman, a vengeful spouse or some other person with no lawful reason to kill Bob?</p>
<p><a href="https://www.cps.gov.uk/legal-guidance/self-defence-and-prevention-crime" rel="noreferrer">Crown Prosecution Service guidance: Self-Defence and the Prevention of Crime</a>:</p>
<blockquote>
<p>Self-defence is available as a defence to crimes committed by use of
force.</p>
<p>The basic principles of self-defence are set out in Palmer v R, [1971]
AC 814; approved in R v McInnes, 55 Cr App R 551:</p>
<p>&quot;It is both good law and good sense that a man who is attacked may
defend himself. It is both good law and good sense that he may do, but
only do, what is reasonably necessary.&quot;</p>
<p>The common law approach as expressed in Palmer v R is also relevant to


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defend himself. It is both good law and good sense that he may do, but
only do, what is reasonably necessary.&quot;</p>
<p>The common law approach as expressed in Palmer v R is also relevant to
the application of section 3 Criminal Law Act 1967:</p>
<p>&quot;A person may use such force as is reasonable in the circumstances in
the prevention of crime, or in effecting or assisting in the lawful
arrest of offenders or suspected offenders or of persons unlawfully at
large.&quot; ...</p>
</blockquote>
<blockquote>
<p>In assessing the reasonableness of the force used, prosecutors should ask two questions:</p>
<ul>
<li>was the use of force necessary in the circumstances, i.e. Was there a need for any force at all?; and</li>
<li>was the force used reasonable in the circumstances?</li>
</ul>


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<ul>
<li>was the use of force necessary in the circumstances, i.e. Was there a need for any force at all?; and</li>
<li>was the force used reasonable in the circumstances?</li>
</ul>
<p>The courts have indicated that both questions are to be answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr App R 276), (R. v Oatbridge, 94 Cr App R 367).</p>
<p>To that extent it is a subjective test. There is, however, an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.</p>
</blockquote>


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Answer 2: <h2>It depends a tad in <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a>...</h2>
<h3>Mallory is staff ordered to shut off Life Support</h3>
<p>There are cases where life support can be turned off. The two most relevant cases are:</p>
<ul>
<li>the conscious patient telling the doctor,</li>
<li>or the unconscious patient having a <em>Patientenverfügung</em>, that demands no life support is performed.</li>
</ul>
<p>The moment the patient says so or the properly documented paper is in the hands of the doctors for an unconscious patient, they have to end all life-prolonging measures, and shut off life support - in fact, they are not even allowed to start such measures once they are informed of the wish for it.</p>


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<p>In a similar fashion, in the absence of such a document and with an unconscious patient, the next of kin might have the life support shut off at some point if they can make it clear that such treatment is against the patient's wishes.</p>


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<p><a href="https://www.doctors.today/home/a/beatmungsgeraet-abschalten-eine-straftat-1646474" rel="nofollow noreferrer">In Germany, turning off the Life support is <strong>not</strong> (active) euthanasia (which is illegal) but <em>Behandlungsabbruch</em> (<em>end of a medical procedure</em>), which is defined as the not providing or ending of procedures that could prolong life</a>. <em>Behandlungsabbruch</em> is not a crime, if demanded by the patient or the next of kin can make it clear that it would have been the wish of the patient. In fact, it becomes a crime to <strong>not</strong> turn off the machines the moment that the wish of the patient not to be kept alive is made clear, either by the patient, his <em>Patientenverfügung</em>, or verified by the next of kin.</p>


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<p>Because Mallory is <strong>not</strong> committing any crime in case he is acting on the Patient's wish (expressed by the conscious patient, unconscious patient's <em>Patientenverfügung</em> or unconscious patient's next of kin in absence of a <em>Patientenverfügung</em>), Alice can't legally use <strong>any</strong> force against Mallory.</p>
<h3>Mallory is just out there to murder</h3>
<p>Simple case: yes, she may use a reasonable amount of force to stop Mallory. <a href="https://law.stackexchange.com/a/92391/10334">In fact, she is <strong>obligated</strong> to assist, as long as she is not in danger from that.</a></p>


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Answer 3: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>Alice found Mallory commiting an indictable offence, so Alice can arrest Mallory, using reasonable force. See <em>Criminal Code</em>, <a href="https://laws-lois.justice.gc.ca/eng/acts/C-46/section-494.html" rel="noreferrer">s. 494</a>.</p>


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Answer 4: <p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a>
Not only is it legal: In Germany, Alice is actually <strong>legally obliged</strong> to do anything that can be reasonably expected from her in order to stop Mallory. <a href="https://www.gesetze-im-internet.de/stgb/__323c.html" rel="nofollow noreferrer">§ 323c StGB</a> states:</p>
<blockquote>
<p>(1) Wer bei Unglücksfällen oder gemeiner Gefahr oder Not nicht Hilfe leistet, obwohl dies erforderlich und ihm den Umständen nach zuzumuten, insbesondere ohne erhebliche eigene Gefahr und ohne Verletzung anderer wichtiger Pflichten möglich ist, wird mit Freiheitsstrafe bis zu einem Jahr oder mit Geldstrafe bestraft.</p>
</blockquote>


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</blockquote>
<p><em>(Anybody who does not render assistance in cases of grave danger or an emergency, even though it is necessary and  within reason, will be put in prison for up to one year or will be fined.)</em></p>
<p>In particular, nobody needs to put themselves in serious danger in order to help. Therefore, if Mallory is armed or is raving mad and smashing things left and right you don't have to put yourself in harm's way (but you should still seek help and alert the
authorities).</p>
<p>This legal obligation to render assistance is peculiar to the law systems in the French civil law tradition. By contrast, in jurisdictions in the British common law tradition such an obligation usually does not exist for third parties unrelated to the incident; it only exists for individuals connected to one of the parties or bearing responsibility for the incident.</p>


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Answer 5: <p>U.S.:</p>
<p>The United States has some very robust self-defense laws, which would make Alice's actions perfectly legal.   Typically, U.S. self-defense/defense of other laws will cover the minimum amount of force required to prevent a crime from occurring, up to and including lethal force, though because of the U.S. federal nature different states have different laws. New York, for example, requires that the level of force used be proportional to the criminal threat, however, considering the crime is 1st degree murder, lethal force can be used to prevent this type of crime.</p>
<p>In the U.S., it's not uncommon for armed police to remain at hospitals, even outside the door of the patient, especially if they are to be taken into custody (either as an arrest or protective custody... Bob could be a criminal or a witness who a criminal would want to end, as Bob could provide evidence against the criminal targeting him.).</p>


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<p>Globally, some of the deadliest serial killers are called &quot;Angels of Mercy&quot; (or &quot;Angels of Death&quot;), who are employees in medical professions or hospitals (doctor, nurses, MediTech's, etc.) who kill patients to end their suffering.  For example, Charlse Cullen, a nurse in New Jersey and PA area hospitals, was arrested in 2003 and convicted of the murder of 29 individuals, the earliest proven one occurring in 1988.   It suspected that he could be responsible for over 400 additional deaths in his 15 year span, but records are not available to prove conclusively.  Compared to non-medical serial killers, Sam Little, who was arrested 2 years later and was active for 20 years longer, was convicted of killing 61 people and is suspected of killing 93.   Ted Bundy was convicted on 20 counts of murder and may have killed more than 100 people.   The most profolific non-medical serial killer in the world, Colombian Luis Garavito is suspected of killing over 300 people, and


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on 20 counts of murder and may have killed more than 100 people.   The most profolific non-medical serial killer in the world, Colombian Luis Garavito is suspected of killing over 300 people, and was convicted of 193.  Angel of Mercy killers, on an average, have a higher suspected victim numbers than non-medical serial killers, as they tend to be active in hospitals and target victims they believe are in pain, seeing as putting them out of their misery (hence the name &quot;Angel of Mercy&quot;).  Since their victims are often in serious danger, it's not immediately suspect that they take a sudden turn for the worse.  Cullen the investigation that lead to Cullen's arrest was actually detected by a poison control worker that the hospital called, who noticed that chemicals turning up in patients who died in nurses had no business being in those patients based on the scripts.</p>


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Answer 6: <p>In the Netherlands you are always allowed to restrain someone and call for the police or authorities... and when is restraining someone violence? Bit of a grey area I think, a lot of ways to interpret it if it comes to a trial...</p>
<p>If it was one of my loved ones that was being unplugged, I would stop that person no matter what punishment followed - deal with that later 😊.</p>


Tags: self-defense, any-jurisdiction, defense-of-others


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Question Body: <p>I am curious about the apparent success of ethnically restrictive laws on residence or property ownership after the fourteenth amendment was ratified.</p>
<p>Hansberry v. Lee, 311 U.S. 32 (1940) ruled that a restrictive covenant violated due process.  But that was a covenant, not a law, and the ruling only protected sellers, not buyers, and only those who had not signed the covenant.</p>
<p>Shelley v. Kraemer, 334 U.S. 1 (1948) had similar limitations.</p>
<p>Oregon for a time had laws prohibiting blacks from living in the territory, and I've heard rumors of laws prohibiting Chinese from owning property.  <strong>What (if any) were the court challenges to such laws on the basis of “equal protection”?</strong>  (Particularly interested in any prior to 1940.)</p>


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<p>In section one, ”no State shall … deny to any person within its jurisdiction the equal protection of the laws“ would seem to me to prevent disallowing Chinese from applying for naturalization or buying property (unless they are <strong>outside</strong> the jurisdiction).</p>


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Answer 1: <p>Prior to <a href="https://supreme.justia.com/cases/federal/us/334/1/" rel="nofollow noreferrer">Shelley v. Kramer</a>, racial covenants were considered to be outside the scope of the 14th Amendment, because as stated in <a href="https://supreme.justia.com/cases/federal/us/271/323/" rel="nofollow noreferrer">Corrigan v. Buckley</a>, &quot;the prohibitions of the Fourteenth Amendment 'have reference to state action exclusively, and not to any action of private individuals'&quot;. Therefore, a private agreement to exclude blacks does not run afoul of the 14th Amendment. The Shelley court also noted:</p>
<blockquote>
<p>But here there was more. These are cases in which the purposes of the
agreements were secured only by judicial enforcement by state courts
of the restrictive terms of the agreements.</p>
</blockquote>
<p>This leads to the primary holding of this case:</p>
<blockquote>
<p>We hold that, in granting judicial enforcement of the restrictive


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of the restrictive terms of the agreements.</p>
</blockquote>
<p>This leads to the primary holding of this case:</p>
<blockquote>
<p>We hold that, in granting judicial enforcement of the restrictive
agreements in these cases, the States have denied petitioners the
equal protection of the laws, and that, therefore, the action of the
state courts cannot stand.</p>
</blockquote>
<p>That is, the racially-restrictive agreements are not themselves forbidden by the 14th Amendment, but <em>enforcement</em> of such agreements is forbidden. An obvious question is, why had nobody advanced that argument before, but legal arguments often suffer from the forest / trees disability.</p>


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<p>As far as I have been able to determine, that part of the Oregon Constitution excluding blacks became a legal nullity when the 14th Amendment was ratified, though it remained in the Constitution until 1926. The various anti-Chinese laws which were enforced were not enforced against Chinese who were citizens, see <a href="https://www.oyez.org/cases/1850-1900/169us649" rel="nofollow noreferrer">US v. Wong Kim Ark</a>.</p>


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Question Title: How is the 14th amendment relevant to the debt ceiling?

Question Body: <p>My understanding is:</p>
<ul>
<li><p>The 14th amendment says that any debt the United States has taken on must be honored.</p>
</li>
<li><p>Previous legislation by Congress prohibits the government from borrowing more than a certain amount of money.</p>
</li>
</ul>
<p>So far so good. I could probably understand the argument that the US government has the constitutional authority &amp; duty to print any money needed to service the current debt. But I don't understand how the 14th amendment could possibly allow an increase of the <em>debt ceiling</em> as some are claiming.</p>
<p>How could the obligation to service <em>existing</em> debt (by printing money, presumably) possibly confer the authority to take on <strong>new</strong> debt? What is the legal reasoning that would reach this conclusion from that premise?</p>


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Answer 1: <p>Congress passes, and the President signs, a legal binding budget for the Federal Government that in broad strokes dictates &quot;we will spend $6.2 Trillion dollars&quot;.</p>
<p>They pass this budget, knowing full well that estimated Tax Receipts (how much money the Government takes in) will only be about $4.4 Trillion.</p>
<p>The gap (deficit) of $1.8 Trillion must be borrowed, creating debt.</p>
<p>The problem is that the Budget is legally passed and describes $1.8T to be financed, even though the Debt Ceiling limits that.</p>
<p>The question is which one takes priority?  The Constitutionally mandated Budget, or the Congressionally created Debt Ceiling?</p>
<p>The 14th Amendment seems to indicate that the fulfilling the Budget has a higher priority than the Debt Ceiling construct.</p>


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Answer 2: <p>The federal government doesn't have the authority to print money.  Under the <a href="https://www.law.cornell.edu/uscode/text/12/414" rel="nofollow noreferrer">Federal Reserve Act</a>, Congress granted that power exclusively to the Board of Governors of the Federal Reserve System (&quot;the Fed&quot;).</p>
<p>So if the government needs dollar bills to make payments on outstanding bonds, and doesn't have enough from tax receipts or other such income, the only place to get them is from the Fed.  The Fed can in principle print as many as it likes, but it doesn't give them away for free; it will only give them to the government in payment for something of value, and normally that &quot;something&quot; is bonds.  So the government can only &quot;print more money&quot; indirectly, by issuing more bonds and selling them to the Fed: i.e. taking on more debt.</p>


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<p>(The government does retain the authority to mint coins, and there is a frequently raised suggestion that the government could &quot;print more money&quot; by <a href="https://en.wikipedia.org/wiki/Trillion-dollar_coin" rel="nofollow noreferrer">minting a trillion-dollar coin</a>, and selling <em>that</em> to the Fed instead of bonds.  I won't go into that here, but suffice it to say there are a lot of potential legal objections.)</p>


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Question Body: <p>Nuanced, procedural thing.</p>
<p>In the UK law system:</p>
<ul>
<li>Witness statement</li>
<li>Position statement</li>
<li>Statement of truth</li>
<li>Statement under oath</li>
</ul>
<p><a href="https://www.legislation.gov.uk/uksi/2020/759/part/16" rel="nofollow noreferrer">Criminal Procedure Rules 2020</a></p>
<blockquote>
<p>Under section 9 of the Criminal Justice Act 1967, if the conditions specified in that section are met the written statement of a witness is admissible in evidence to the same extent as if that witness gave evidence in person.</p>
</blockquote>
<p>I would like to accomplish something similar to Section 9, but applicable to family law, not criminal law.</p>
<hr />
<p>Some <a href="https://www.hse.gov.uk/enforce/enforcementguide/investigation/witness-witness.htm#:%7E:text=14.,sign%20a%20declaration%20of%20truth." rel="nofollow noreferrer">google research</a> about section 9, CJA means Criminal Justice Act:</p>
<blockquote>


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<blockquote>
<p>A s9 CJA statement is preferable because:</p>
<p>s9 statements can, providing they have been accepted by the defence, be relied upon in court as evidence, without the witness attending court to give evidence;</p>
<p>Section 20(2)(j) gives you the power to require a person to sign a declaration of truth. This is not the same as the perjury declaration required under s9 CJA; the latter includes an acknowledgement by the witness that they are liable to be prosecuted if they wilfully say anything that they know to be false or untrue;</p>
</blockquote>
<p>Or maybe procedures from criminal law are applicable to family law by cross-pollination?</p>
<hr />
<p><strong>EDIT / UPDATE:</strong> Unfortunate wording</p>
<blockquote>
<p>&quot;I would like to accomplish something similar to Section 9, but applicable to family law, not criminal law.&quot;</p>
</blockquote>


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<blockquote>
<p>&quot;I would like to accomplish something similar to Section 9, but applicable to family law, not criminal law.&quot;</p>
</blockquote>
<p><a href="https://twitter.com/marsxrobertson/status/1658782363348770816" rel="nofollow noreferrer">I knew</a> that I get the statement of truth but a breach here is &quot;only&quot; contempt of the court, not perjury, that's why enthusiastic towards Section 9 and CJA.</p>
<p><strong>EDIT / UPDATE:</strong> unfortunate context</p>
<blockquote>
<p>&quot;gives you the power to require a person to sign a declaration of truth. This is not the same as the perjury declaration&quot;</p>
</blockquote>
<p>I understand the different and I was hoping that by quoting this snippet I will highlight this knowledge. Now I've discovered yet another inconsistency:</p>
<ul>
<li>Statement of truth</li>
<li>Declaration of truth</li>
<li>Affidavit of truth</li>
</ul>
<blockquote>


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<ul>
<li>Statement of truth</li>
<li>Declaration of truth</li>
<li>Affidavit of truth</li>
</ul>
<blockquote>
<p>&quot;be produced on durable quality A4 paper with a 3.5 cm margin&quot;</p>
</blockquote>
<p>🤯 they are destroying court bundles anyway, what's the statutory definition of durable?</p>


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Answer 1: <p>Section 9 CJA statements are for criminal proceedings, and there is no cross-pollination.</p>
<p>For family law, see <a href="https://www.legislation.gov.uk/uksi/2010/2955/rule/22.4?timeline=false" rel="nofollow noreferrer">Rule 22.4</a>, Family Procedure Rules 2010:</p>
<blockquote>
<p>22.4.—(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.</p>
<p>(2) A witness statement must comply with the requirements set out in the Practice Direction 22A. (Part 17 requires a witness statement to be verified by a statement of truth.)</p>
</blockquote>
<p><a href="https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_22a" rel="nofollow noreferrer">Practice Direction 22A</a> is quite long and difficult for me to reproduce in full here, but of particular note is Paragraph 4.1:</p>
<blockquote>


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<blockquote>
<p>Subject to paragraph 4.2 and rules 14.2 and 29.1, the affidavit/statement must, if practicable, be in the maker's own words, it should be expressed in the first person, and the maker should –</p>
<ul>
<li>(a) commence –</li>
</ul>
<blockquote>
<p>(i) in an affidavit, ‘I (full name) of (residential address) state on oath .. ’;</p>
<p>(ii) in a statement, by giving his or her full name and residential address;</p>
</blockquote>
<ul>
<li><p>(b) if giving evidence in a professional, business or other occupational capacity, give the address at which he or she works in (a) above, the position held and the name of the firm or employer;</p>
</li>
<li><p>(c) give his or her occupation or (if none) description; and</p>
</li>
<li><p>(d) if it be the case that the maker is a party to the proceedings or is employed by a party to the proceedings, state that fact.</p>
</li>
</ul>
</blockquote>


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Question Title: When lords were tried by the House of Lords, where could they appeal to?

Question Body: <p>If a lord was proceeded against then the HoL would be the venue of first instance. But where would the appeal go from there, and what was the venue of last resort? Or was it there be all and end all, ie at one and the same time the court of both first instance and last resort</p>


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Answer 1: <h3>Short Answer</h3>
<p>There were <a href="https://en.wikipedia.org/wiki/List_of_trials_of_peers_in_the_House_of_Lords" rel="noreferrer">30 House of Lords convictions</a> of peers resulting in a punishment for the peer (in 29 cases a death sentence, and in the one final case, in 3 months of imprisonment) from 1499 until the practice was abolished in 1948, a time period covering all but the first 158 years of the 607 years during which House of Lords trials were available and the process was formalized.</p>
<p>Of those convicted peers, 30% were pardoned or commuted by the monarch. There was no appeal from a House of Lords conviction other than a royal pardon or commutation.</p>
<p>Modern criminal appeals did not exist in ordinary criminal cases either, in any part of the time period during which peers were convicted by the House of Lords of crimes for which we have good records (i.e. from 1499 to 1901).</p>
<h3>Ordinary criminal procedure compared</h3>


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<h3>Ordinary criminal procedure compared</h3>
<p>This should also be viewed in the context of the history of <a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1030&amp;context=mlr" rel="noreferrer">ordinary criminal procedure in England</a> (this link is the source applies to all of the discussion in this section).</p>
<p>Prior to the year 1700, appeals consisted of a petition to the King or Queen resulting not in a pardon or commutation, but in a direction by the monarch for officials to determine if there were any serious errors in the process by issuing a discretionary writ of error, so it basically, another form of pardon type relief.</p>
<p>The Writ of Error and some other procedural remedies short of an appeal existed from 1700 to 1907 in England but evolved over time.</p>


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<p>The Writ of Error and some other procedural remedies short of an appeal existed from 1700 to 1907 in England but evolved over time.</p>
<p>Initially, review other than discretionary review by the monarch was limited to a determination that the judge was really a judge in good standing with jurisdiction over the case, that the indictment described a crime, that a correct number of eligible jurors were seated and rendered a verdict, that the sentence was consistent with the sentence authorized by law. This kind of review of criminal convictions was similar to 18th and early 19th century habeas corpus review of convictions in the United States. Writs of error were also used discretionarily in the U.K. in this era in cases where the prosecution wanted to admit that it made a mistake and vacate a conviction.</p>


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<p>A detailed record of the proceeding that would make a more substantive review possible, however, was not available until 1886, and that was replaced, 21 years later, by the modern direct appeal of a criminal conviction based upon a trial court record include a transcript of the proceedings and all exhibits that had been admitted in the case.</p>
<p>True formal direct appeals of criminal convictions in the modern sense, however, did not exist in England prior to 1907, after the last verdict of conviction was made by the House of Lords. So, there weren't true direct appeals in ordinary criminal cases either, in the time period when it would have been potentially relevant to appeals of House of Lords convictions.</p>


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<p>Of course, the monarch had the power to pardon or commute the sentences of people convicted of crimes in the U.K. in ordinary criminal cases, &quot;since times immemorial&quot;, just as in House of Lords cases. But, people with ordinary criminal convictions, unlike peers convicted in the House of Lords, did not have the right to demand an audience with the monarch in the way that a peer did, which made the process of seeking pardons and commutations much less effective for commoners.</p>
<h3>Long Answer</h3>
<p>The right to be tried by other peers was established around the time of the Magna Carta, formalized in 1341, and formally <a href="https://en.wikipedia.org/wiki/Privilege_of_peerage" rel="noreferrer">abolished in 1948</a>. Prior to 1695 it was before only a jury of nobles hand picked by the monarch to rule as the monarch desired, when parliament was not in session, but after that the entire House of Lords participated in each trial.</p>


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<p>From 1547 to 1841, there was no punishment after a first offense other than treason or murder, which was just a strike to open up the possibility of punishment for a second offense, and greatly reduced the need for an appeal. According <a href="https://en.wikipedia.org/wiki/Privilege_of_peerage" rel="noreferrer">to Wikipedia</a> (references omitted):</p>
<blockquote>
<p>The right of peers to trial by their own order was formalized during
the 14th century. A statute passed in 1341 provided:</p>
<p><em>Whereas before this time the peers of the land have been arrested and imprisoned, and their temporalities, lands, and tenements, goods and
cattels, asseized in the King's hands, and some put to death without
judgment of their peers: It is accorded and assented, that no peer of
the land ... shall be brought in judgment to lose his temporalities,
lands, tenements, goods and cattels, nor to be arrested, imprisoned,
outlawed, exiled, nor forejudged, nor put to answer, nor be judged,


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lands, tenements, goods and cattels, nor to be arrested, imprisoned,
outlawed, exiled, nor forejudged, nor put to answer, nor be judged,
but by award of the said peers in Parliament.</em></p>
<p>The privilege of trial by peers was still ill-defined, and the statute
did not cover peeresses. In 1442, after an ecclesiastical court (which
included King Henry VI of England, Henry Beaufort and John Kemp) found
Eleanor, Duchess of Gloucester, guilty of witchcraft and banished her
to the Isle of Man, a statute was enacted granting peeresses the right
of trial by peers.</p>
<p>By the reign of Henry VII of England [reigned 1485-1509], there were two methods of trial by peers of the realm:
trial in the House of Lords (or, in proper terms, by the High Court of
Parliament) and trial in the Court of the Lord High Steward. The House
of Lords tried the case if Parliament was in session; otherwise, trial
was by the Lord High Steward's Court.</p>


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Parliament) and trial in the Court of the Lord High Steward. The House
of Lords tried the case if Parliament was in session; otherwise, trial
was by the Lord High Steward's Court.</p>
<p>In the Lord High Steward's Court, a group of Lords Triers, sitting
under the chairmanship of the Lord High Steward, acted as judge and
jury. By custom, the number of Triers was not fewer than 23, so that a
majority was a minimum of 12, but in fact, the number ranged from 20
to 35. The power to choose which peers served as Triers lay with the
Crown and was sometimes subject to abuse, as only those peers who
agreed with the monarch's position would be summoned to the Court of
the Lord High Steward, thereby favoring the desired verdict.</p>
<p>This practice was ended by the Treason Act 1695, passed during the
reign of King William III. The Act required that all peers be summoned
as Triers. All subsequent trials were held before the full House of
Lords.</p>


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reign of King William III. The Act required that all peers be summoned
as Triers. All subsequent trials were held before the full House of
Lords.</p>
<p>In the House of Lords, the Lord High Steward was the President or
Chairman of the Court, and the entire House determined both questions
of fact and questions of law as well as the verdict. By convention,
Bishops and Archbishops did not vote on the verdict, though they were
expected to attend during the course of the trial. They sat until the
conclusion of the deliberations, and withdrew from the chamber just
prior to the final vote. At the end of the trial, peers voted on the
question before them by standing and declaring their verdict by saying
&quot;guilty, upon my honour&quot; or &quot;not guilty, upon my honour&quot;, starting
with the most junior baron and proceeding in order of precedence
ending with the Lord High Steward. For a guilty verdict, a majority of
twelve was necessary. The entire House also determined the punishment


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ending with the Lord High Steward. For a guilty verdict, a majority of
twelve was necessary. The entire House also determined the punishment
to be imposed, which had to accord with the law. For capital crimes
the punishment was death; the last peer to be executed was Laurence
Shirley, 4th Earl Ferrers, who was hanged for murder in 1760.</p>
<p>From 1547, if a peer or peeress was convicted of a crime, except
treason or murder, he or she could claim &quot;privilege of peerage&quot; to
escape punishment if it was his or her first offence. In all, the
privilege was exercised five times, until it was formally abolished in
1841 when James Brudenell, 7th Earl of Cardigan, announced he would
claim the privilege and avoid punishment if he was convicted of
duelling. He was acquitted before the introduction of the bill.</p>
<p>The last trial in the House of Lords was that of Edward Russell, 26th
Baron de Clifford, in 1935 for manslaughter (he was acquitted); the


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<p>The last trial in the House of Lords was that of Edward Russell, 26th
Baron de Clifford, in 1935 for manslaughter (he was acquitted); the
following year the Lords passed a bill to abolish trial by peers but
the Commons ignored it. The right to trial by peers was abolished when
the Lords added an amendment to the Criminal Justice Act 1948, which
the Commons accepted. Now peers are tried by juries composed of
commoners, though peers were themselves excused from jury service
until the House of Lords Act 1999 restricted this privilege to members
of the House of Lords. The right to be excused was abolished on 5
April 2004 by the Criminal Justice Act 2003.</p>
<p>Peers were and still are, hypothetically, subject to impeachment.
Impeachment was a procedure distinct from the aforementioned procedure
of trial in the House of Lords, though the House of Lords is the court
in both cases. Charges were brought by the House of Commons, not a


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of trial in the House of Lords, though the House of Lords is the court
in both cases. Charges were brought by the House of Commons, not a
grand jury. Additionally, while in normal cases the House of Lords
tried peers only for felonies or treason, in impeachments the charges
could include felonies, treason and misdemeanours. The case directly
came before the House of Lords, rather than being referred to it by a
writ of certiorari. The Lord High Steward presided only if a peer was
charged with high treason; otherwise, the Lord Chancellor presided.
Other procedures in trials of impeachment were similar, however, to
trials before the House of Lords: at the conclusion of the trial, the
spiritual peers withdrew, and the temporal Lords gave their votes on
their honour. The last impeachment was that of Henry Dundas, 1st
Viscount Melville, in 1806 for misappropriating public money (he was
acquitted). Since then, impeachment has become an obsolete procedure
in the United Kingdom.</p>


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Viscount Melville, in 1806 for misappropriating public money (he was
acquitted). Since then, impeachment has become an obsolete procedure
in the United Kingdom.</p>
</blockquote>
<p><strong>The ultimate appeal was to the King or Queen personally,</strong> and the right to personally petition the sovereign called &quot;access to the sovereign&quot; is one of the traditional privileges of peerage that U.K. nobles held:</p>
<blockquote>
<p>according to Sir William Blackstone in 1765, &quot;it is usually looked
upon to be the right of each particular peer of the realm, to demand
an audience of the King, and to lay before him, with decency and
respect, such matters as he shall judge of importance to the public
weal.&quot; The privilege of access is no longer exercised[.]</p>
</blockquote>


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<p>In the time period from 1499 to 1901 there were 30 convictions of peers by the House of Lords that were not excused by peer privilege (there were no other convictions after 1901), all of which except a 3 month sentence in 1901, were death sentences. Seven of those convicted were pardoned by the monarch (most recently in 1746). Two peers had a death sentences commuted by the monarch to imprisonment in 1603. Two more escaped before being executed in 1716, and one died of other causes before he could be executed in 1589. Only three death sentences were carried out following House of Lords convictions since the last royal pardon in 1746. (There were five other House of Lords convictions for offenses other than murder or treason prior to 1841 and punishable by a sentence other than death, but in all five of those cases, the &quot;privilege of peerage&quot; was used to vacate any punishment for the crime of conviction because it was a first offense, so no appellate review or royal pardon


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in all five of those cases, the &quot;privilege of peerage&quot; was used to vacate any punishment for the crime of conviction because it was a first offense, so no appellate review or royal pardon or commutation was necessary.)</p>


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<p>Thus, 30% of peers convicted and sentenced to death by the House of Lords were pardoned or had their sentences commuted by the monarch.</p>
<p><strong>There was no forum outside of the House of Lords other than a royal pardon to which an appeal was available.</strong></p>
<p>Incidentally, 30 convictions of offenses limited to murder and treason in this time period isn't vanishingly low. Before the recent contraction of the House of Lords, it had about 730 peers at any one time, so in the 449 year period for which we have records, there were about 328,000 person years of potential defendants, with a conviction for murder or treason every 11,000 or so person years. This is quite high by modern standard for an exceedingly privileged and carefully socialized group of people who didn't have access to firearms for most of that time period.</p>


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Question Title: Can artists file for plagiarism if their art is used in AI models to make AI art, given that there is proof they&#39;re the authors of their work?

Question Body: <p><strong>(I am an IT student writing a report proposing using blockchain technology to attribute &quot;art&quot; files, used in AI models, to their authors. I know next to nothing about copyright laws for creative works)</strong></p>
<p>Suppose metadata in the files used for AI models to generate new derivative art can be attributed to their original authors. Would it be enough for authors to file for plagiarism under lack of attribution and compensation for art generated this way? If not, what must be changed in the legal system so that artists get justice for supposed art theft?</p>


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Answer 1: <h2>&quot;Plagiarism&quot; is an academic concept, not a legal one</h2>
<p>Plagiarising the work of another without attribution is academic misconduct in every reputable academic facility and can lead to disciplinary action. But it's not against the law, and you can't be sued for doing it.</p>
<h2>Copyright violation <em>is</em> against the law</h2>
<p>You violate copyright when you copy or make a derivative work from the copyrighted work of another without permission or without an exemption under the law.</p>
<p>In some jurisdictions, authors and artists have moral copyright, which operates alongside proprietary copyright and gives certain rights, including the right of attribution and the right for their work to be treated respectfully. In those jurisdictions, even if you have the copyright holder's permission, you must still respect the moral rights.</p>
<p>Let's make some things explicit by considering a particular artwork. Say, this one:</p>


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<p>Let's make some things explicit by considering a particular artwork. Say, this one:</p>
<p><a href="https://i.stack.imgur.com/ZEuEL.png" rel="noreferrer"><img src="https://i.stack.imgur.com/ZEuEL.png" alt="Leonardo's Mona Lisa" /></a></p>
<p>This particular piece is not subject to copyright because a) it was created before there was such a concept, and b) da Vinci died in 1519, so if there had been a copyright law, copyright in this work would have long expired. So, you can make as many copies of this as you like.</p>
<p>Now, let's consider what the situation would be if Leonardo's alchemical pursuits had been more successful and instead of dying in 1519, he died last Tuesday.</p>
<p>If you want to make a copy of this image, you must have Leonardo's heir(s) permission or be operating under an exemption under copyright law in your jurisdiction.</p>
<p>When you train your AI, you will need to make a copy of the image. Do you have permission? Do you have a relevant exemption?</p>


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<p>When you train your AI, you will need to make a copy of the image. Do you have permission? Do you have a relevant exemption?</p>
<p>If you obtained your images by scraping websites then the answers are no and (probably) no.</p>
<p>Whether the image has metadata identifying the author is irrelevant to answering the questions. Whether there is any way of identifying the artist is also irrelevant - you still need their permission even if you don't know who to ask.</p>
<p>If your AI, when prompted, generates an image that is <a href="https://en.wikipedia.org/wiki/Mona_Lisa_replicas_and_reinterpretations" rel="noreferrer">strikingly similar</a> to a copyrighted image it was trained on, that is a derivative work and you need permission for that. Under current law, the programer(s) are likely the copyright violators rather than the users of the AI.</p>


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Answer 2: <h3>When constructing the training collection</h3>
<p>If copyrighted works are copied without licence in order to construct the training data for an AI, that is <em>prima facie</em> infringment and the person constructing or copying that training collection is infringing (<em>subject to a fair dealing or fair use exception</em>). See Mark Lemley and Bryan Casey, &quot;Fair Learning&quot;, Vol. 99, No. 4 Texas Law Review (2021); Canada, House of Commons Standing Committee on Industry, Science and Technology, &quot;Statutory Review of the Copyright Act&quot; (2019).</p>
<h3>If the AI produces an infringing work</h3>
<p><em><strong>If</strong></em> the AI produces work that infringes, there are several entities who might be liable, including the person who trained the AI and the person who distributed the trained AI.</p>
<h3>The programmer, without doing more, is not likely liable for infringement</h3>


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<h3>The programmer, without doing more, is not likely liable for infringement</h3>
<p>Contrary to the position of the other answer, the consensus is that the mere programmer of the untrained AI model, unless they <em>also</em> trained or distributed the AI, is not infringing. They are not liable in copyright for what people train the AI to do or for what they use it for afterwards.</p>
<hr />
<p><sup>Note: The other answer suggests that &quot;striking similarity&quot; is the test for what makes a derivative work. But &quot;striking&quot; or &quot;substantial&quot; similarity is part of the test for <em>prima facie</em> infringement.</sup></p>


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Question Body: <p>According to <a href="https://whistleblower.house.gov/sites/whistleblower.house.gov/files/wysiwyg_uploaded/Whistleblower_Protection_Act_Fact_Sheet.pdf" rel="noreferrer">this summary document on house.gov</a>, they're not. I thought this was very interesting considering all the hubbub in the <em>House of Representatives</em> about the FBI agents being or not being whistleblowers.</p>
<blockquote>
<p>Who Is(n’t) Covered?</p>
<p>Most executive branch employees, former employees, and applicants fall within the WPA’s protections because they are part of the merit system that governs the federal civil service under Title 5 of the U.S. Code. Employees of the Government Publishing Office, a
Legislative Branch agency, are also covered. (5 U.S.C. § 2302(a)(2)(C)).
However, some executive branch employees are excluded from the WPA’s protections, including (but not limited to):</p>
<p>❖ Political appointees (e.g. federal inspectors general)</p>


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However, some executive branch employees are excluded from the WPA’s protections, including (but not limited to):</p>
<p>❖ Political appointees (e.g. federal inspectors general)</p>
<p>❖ Uniformed military service members</p>
<p>❖ Noncareer Senior Executive Service employees</p>
<p>❖ Employees of the 17 different intelligence community “elements” and the FBI</p>
<p>❖ Members of the U.S. Public Health Service Commissioned Corps</p>
<p>❖ Officers of the National Oceanic and Atmospheric Association (NOAA) Commissioned Corps</p>
<p>❖ Employees of the U.S. Postal Service</p>
</blockquote>


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Answer 1: <p>This particular list of excluded branches seems to refer to those who are able to excercise whistleblowing protections through the U.S. Office of Special Counsel.  It does not mean that employees excluded by these rules would be unable to whistleblow at all.  Rather, the government channels through which they are able to seek protection are likely through a different office.  In so far as I can tell, USOSC might restrict the FBI from protection services because they protect employees who go to the Media.   FBI agents often handle classified material which would not be allowed to be disclosed to the media and many intel agency employees are required to submit any documents they intend to publish based off knowledge aquired from their employment for a pre-publishing review to make sure no classified material is leaked, and would thus limit the way the employee could whistleblow.</p>


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<p>Just because this particular office does not provide protection services to the listed employees, it does not mean there is an agency or department that does provide them (Usually the Office of General Inspector for the particular agency in question.  While they are attached to the agency they cover, they are not within the chain of command of the agency itself and are independent to them.).</p>
<p>For that reason, just because the rules that apply to most do not cover FBI Whistle Blowers, it does not mean an FBI employee cannot become a whistle blower.  They just cannot use the services of USOSC in their whistleblowing efforts.</p>


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Question Title: Do municipalities have statutes of limitations for fines, or formal evidence requirements?


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Question Body: <p>Just doing a little legal research and wondering how technical it gets when paying fines to a city for alleged violations.</p>
<p>Unlike with the criminal courts it seems like a city can just fine you for something and have no evidence and then circumvent normal procedure but make you stop on your project.</p>
<p>Do building code violations have an ex post facto enforcement provision at the municipal level? For example, if a city were to notice you did something wrong while doing a remodel, and wait 3 years to try and fine you for it, wouldn't that be barred by an SOL?</p>
<p>If in the mean time they have changed the code while you are still working on a project, and they want you to pay fines and stop construction for a code violation that wouldn't have been a code violation when you first started doing that particular thing, but it was when you finished... how can you make them stop?</p>


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<p>City told construction crew a permit was not needed, and to do large amount of tree clean up before a new code took effect. Now city says a permit was needed, and wants to enforce against contractor and owner for tree removal and a variety of other issues.</p>
<p>Also, can a city wait several months or years to fine you and then slap you with a $50 per day fine? Or do they have to notify you in writing the fine will be $50 a day until you stop the work / mitigate?</p>


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Answer 1: <p>Almost by definition, the answer varies from jurisdiction to jurisdiction.</p>
<p>Colorado, for example, has a statute establishing some boundaries on the authority of local governments to establish criminal and quasi-criminal ordinances (e.g., limiting that maximum penalties that can be imposed) and the state supreme court in Colorado has adopted a couple of sets of procedural rules for municipal courts in which municipal ordinances are enforced.</p>
<p>Sometimes procedural and substantive rules related to ordinance violations are set forth in the laws of the government whose laws authorize the formation of the entity, while in other cases, limitations and rules related to these ordinance violations are set by the municipality itself.</p>


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<p>Some jurisdictions have very formal municipal court systems with detailed procedures and judges with similar qualifications to state judges in courts of general jurisdiction (or have no separate municipal court system at all). Other jurisdictions are very loose, and have decisions made by non-lawyer judges in relatively informal proceedings with few formal procedural rules.</p>
<p>Often, in jurisdictions with less formal processes, an appeal of an initial adverse decision of a municipal court is by a trial <em>de novo</em>, which means that a dissatisfied defendant can have a do over in a new trial in a more formal court setting.</p>
<p>The details like when on offense occurs, when it has to be charged, and the like, also depends on both the kind of conduct regulated and on the kind of relief sought by the municipality.</p>


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<p>The details like when on offense occurs, when it has to be charged, and the like, also depends on both the kind of conduct regulated and on the kind of relief sought by the municipality.</p>
<p>For example, Colorado has a one year state level statute of limitations running from the date that construction is completed on claims to fine, incarcerate, or order of tear down, of a structure completed in violation of building codes or HOA covenants, which is shorter than the statute of limitations established by state law for some other kinds of ordinance violations and specifies clearly when the statute of limitations clock starts running. But a Colorado municipality can still deny future building permits if past work done in violation of building codes for which a statute of limitations for prosecuting an ordinance violation or ordering a tear down has run, until the past work is up to code.</p>


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<p>Unfortunately, since the sources of law are highly fragmented and differ from one jurisdiction to another, and because these issues are often not litigated to the point where they become precedent making reported decisions of appellate courts, legally researching these issues is often challenging. Even finding a copy of the relevant municipal codes and municipal court procedures is often a non-trivial matter, especially in rural areas and in poor municipalities that haven't had the funds to make this kind of information available online.</p>


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Question Title: Can misrepresentation in a contract of professional credentials of an employee invalidate the contract?


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Question Body: <p>My question is somewhat like <a href="https://law.stackexchange.com/questions/87545/after-employing-the-services-of-an-architect-then-later-finding-they-are-not-a">this one</a> but involves a registered architect and an employee ...</p>
<p>In a particular jurisdiction, a person is not permitted to describe themselves as an <em>architect</em>, unless they are registered with a relevant authority.</p>
<p>A registered architect (Alice) employs another person (Belle) who is <em>not</em> a registered architect but who is (mis)represented by Alice as being a registered architect. Conrad enters into a contract with Alice for her to build a home. The contract states that there will be two architects, Alice and Belle, working on the project. They are each identified by name followed by 'Architect'. Conrad is unaware that there has been any misrepresentation.</p>


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<p>Alice is described as having a supervisory role over the whole project. Conrad doesn't know the extent to which Alice actually does, or does not, supervise work. Conrad receives regular invoices, on which the line items say things like:</p>
<blockquote>
<p>Alice (architect), 10 hours, $2000</p>
</blockquote>
<blockquote>
<p>Belle (architect), 10 hours, $1000</p>
</blockquote>
<p>Things go seriously wrong with the project. Conrad is unsure of the extent to which the problems are attributable to Alice or Belle. As a result of a conversation with the registration authority regarding a possible complaint, Conrad discovers that Belle is not an architect, and that she has been misrepresented as such.</p>
<h3>Questions</h3>
<ul>
<li>Would the misrepresentation be considered to be &quot;material&quot;?</li>
<li>Would Conrad  have to prove that he would not have entered into the contract if he had known that Belle was not an architect?</li>


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<li>Would Conrad  have to prove that he would not have entered into the contract if he had known that Belle was not an architect?</li>
<li>Does Conrad  have to show that the standard of work from Belle was not the standard of work that would have come from an architect?</li>
<li>Conrad  does not doubt that the hours attributed to Belle are honestly attributed, but is it material that the work is shown as having been done by &quot;Belle (Architect)&quot;?</li>
</ul>
<p>My question is hypothetical. I'm interested in what kind of view consumer and contract law take to the misrepresentations in the contract and the invoicing.</p>


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Answer 1: <p><a href="/questions/tagged/new-jersey" class="post-tag" title="show questions tagged &#39;new-jersey&#39;" aria-label="show questions tagged &#39;new-jersey&#39;" rel="tag" aria-labelledby="tag-new-jersey-tooltip-container">new-jersey</a></p>
<p>I'm going to provide an answer based on my experience and obligations as a Professional Engineer (PE), which is generally similar to the obligations of an Registered Architect (RA).</p>
<p>You do not state exactly what is meant by 'things go seriously wrong with the project,' but in general it doesn't matter. What truly matters is that Alice is the Registered Architect and Belle is not; this is reflected in the billings whereby Alice is charging $200 an hour and Belle is $100 an hour. The fact that things have gone seriously wrong with the project is now Alice's fault. Even if the fault is in an error that Belle made, it is still Alice's fault because of their obligation of 'Responsible Charge'.</p>


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<p>In NJ, the definition for Responsible Charge is detailed in <a href="https://www.njconsumeraffairs.gov/regulations/chapter-27-new-jersey-state-board-of-architects.pdf" rel="nofollow noreferrer">Chapter 13:27</a> for RAs and <a href="https://www.njconsumeraffairs.gov/regulations/Chapter-40-State-Board-of-Professional-Engineers-and-Land-Surveyors.pdf" rel="nofollow noreferrer">13:40</a> for PEs, but is generally the same to mean that the professional in responsible charge shall provide effective supervision over all aspects of the work.</p>
<blockquote>
<p>Would the misrepresentation be considered to be &quot;material&quot;?</p>
</blockquote>


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<blockquote>
<p>Would the misrepresentation be considered to be &quot;material&quot;?</p>
</blockquote>
<p>Probably not unless either the contract provided a clear definition on what is meant by the term 'architect' or there is relevant law that defines what that term is and how it may be used within business. In NJ, there is a definition for 'Engineer', but it's only applicable within the bounds of Chapter 13:40 and is not intended to limit how the word might be used throughout the State. As a whole, someone operating a train can still call themselves an 'Engineer'.</p>
<p>Furthermore, we use the term to describe lots of different people within the engineering profession. For example, you might see billings for Engineer I, Engineer II, Engineer III, Engineer IV, etc. all attempting to provide more diverse billing structures to make hourly rates match experience levels.</p>


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<p>Furthermore, there are plenty of times in the United States as a whole, where someone might be fully registered and licensed in one state but not another.</p>
<blockquote>
<p>Would Conrad have to prove that he would not have entered into the
contract if he had known that Belle was not an architect?</p>
</blockquote>
<p>It's likely not relevant. As I described above, there are a litany of reasons why both could be described as an Architect, but what truly matters is that one of them is a Registered Architect and thus has responsible charge over the issuance of plans.</p>
<blockquote>
<p>Does Conrad have to show that the standard of work from Belle was not
the standard of work that would have come from an architect?</p>
</blockquote>
<p>No. Alice is the Registered Architect who signed the plans. The standard of work by Belle is by default the standard of work of Alice whom has responsible charge. If Alice has issued plans that are fundamentally flawed, the error is their fault.</p>


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<blockquote>
<p>Conrad does not doubt that the hours attributed to Belle are honestly
attributed, but is it material that the work is shown as having been
done by &quot;Belle (Architect)&quot;?</p>
</blockquote>
<p>No.</p>
<hr />
<p>As a matter of resolution for this, I can say that you're more likely to get something done in a cost-effective manner by raising a complaint with Alice than anyone else.</p>
<p>To exemplify, a few years back a friend of mine had hired an architect to design a building addition for their home. The architect's scope of work included completing a survey of the existing structure so they could base their design upon it. During construction, it was revealed partway through that the proposed expansion was going to conflict with the existing windows on the second floor.</p>


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<p>This is not acceptable for a litany of reasons, but it should've been discovered in design, not construction. Reviewing this issue with my friends, I encouraged my friends to document the issue in detail, meet with the Registered Architect on-site, and demand a solution.</p>
<p>Thankfully, this went well and the RA accepted fault for the error. The costs of revising plans and additional construction costs was simply borne by the RA.</p>
<p>Had the RA refused to accept fault, the next alternative would've been to make a claim against the RA's insurance carrier for Errors and Omissions. E&amp;O insurance is stupidly expensive, but also absolutely necessary for an RA to operate. It's often much cheaper to just pay the cost of plan revisions and construction change orders than to have a lot of claims on your E&amp;O.</p>


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Answer 2: <h2>Maybe</h2>
<blockquote>
<p>Would the misrepresentation be considered to be &quot;material&quot;?</p>
</blockquote>
<p>Maybe</p>
<blockquote>
<p>Would Conrad have to prove that he would not have entered into the contract if he had known that Belle was not an architect?</p>
</blockquote>
<p>Yes</p>
<blockquote>
<p>Does Conrad have to show that the standard of work from Belle was not the standard of work that would have come from an architect?</p>
</blockquote>
<p>No</p>
<blockquote>
<p>Conrad does not doubt that the hours attributed to Belle are honestly attributed, but is it material that the work is shown as having been done by &quot;Belle (Architect)&quot;?</p>
</blockquote>
<p>Not for this purpose.</p>


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</blockquote>
<p>Not for this purpose.</p>
<p>In order to rescind the contract for <a href="https://en.wikipedia.org/wiki/Misrepresentation" rel="nofollow noreferrer">misrepresentation</a>, the misrepresentation has to be made before the contract was entered into and it must be material, that is, that Conrad only entered into the contract in reliance of it. A non-material misrepresentation may be a term of the contract, breach of which may allow damages but not necessarily termination.</p>
<p>Note that if the misrepresentation happens after the contract was entered into (such as first appearing on the invoice) it would not allow either damages or rescinding. However, it may be an offence that the government can prosecute.</p>


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<p>Also note, silence is generally not a misrepresentation unless there is a positive duty to disclose the fact. There is generally not a duty to correct a misunderstanding on the other party’s part unless asked - so if the other party assumes your Picasso print is an original, you don’t have to correct them unless they actually ask you or your acts led the to that misunderstanding.</p>
<p>Things going “seriously wrong with the project” due to the architect’s (using the term advisedly) negligence would give rise to a seperate claim from any misrepresentation of their qualifications.</p>


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Question Title: Legal bindingness/validity of implicit/presumptively entered contracts for occupancy fees


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Question Body: <p>Bob advertises, openly and conspicuously, on the EXTERIOR FRONT of his guest house that people are permitted to occupy rooms therein for £60 per night. They may come in and pay before receiving keys to a room.</p>
<p>Alice meanwhile operates a restaurant that advertises out front that one can get anything they want at Alice’s Restaurant. Only upon sitting down and being handed a menu do guests have an occasion to notice the terms printed rather inconspicuously at the bottom of her menu that “by entering and sitting down in Alice’s Restaurant you legally agree to be liable for an occupancy charge of £0.10 per minute beginning from when you entered the premises and £0.2 per minute as long as you are seated at a table.</p>


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<p>Charlotte invites people to her flat for a party where she has posted on the wall terms and conditions that “by entering these premises you implicitly agree to pay £5 per hour that you remain herein.” On her guests’ ways out she attempts to charge them.</p>
<p>David crawls into one of bob’s rooms through a window. Is he guilty of theft of services or simply civil trespass?</p>
<p>Ed attends Charlotte’s party but refuses to pay. Is he guilty of civil trespass or guilty of making off without paying and liable to a civil debt? Does Charlotte stand any chance of recovering the occupancy fees from her guests in court?</p>


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Answer 1: <p>The offeror is &quot;master of the offer&quot; including the manner in which the contract may be accepted. Where the offeror specifies that acceptance may be by specific conduct, the question becomes &quot;<a href="https://ca.vlex.com/vid/communication-of-acceptance-683505725" rel="nofollow noreferrer">whether the offeror, acting reasonably, would understand that the offeree was assenting to the terms proposed</a>.&quot; This is not <em>implicit</em> acceptance; this is acceptance by conduct. This is <a href="https://law.stackexchange.com/questions/90788/does-contract-formation-require-subjective-meeting-of-the-minds">an <em>objective</em> inquiry</a> focusing on how the actions would be understood to a reasonable observer, not an inquiry into the actual states of mind of the offeror or offeree.</p>
<blockquote>


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<blockquote>
<p>It is a question of fact, on a consideration of all the circumstances, whether the conduct of the offeree constitutes an acceptance of the offer. It is open to the offeror to specify the manner in which the offer is to be accepted. Where the offeror does so, this is a significant factor to be taken into account in determining whether or not the conduct of the offeree constitutes acceptance. The conduct of the offeree must be considered in the light of the acceptance provisions specified in the offer.</p>
<p>(<em>Hill v. Develcon Electronics Ltd. (No. 1)</em>, <a href="https://canlii.ca/t/g97vh#par53" rel="nofollow noreferrer">1991 CanLII 7744 (SK KB)</a>)</p>
</blockquote>
<blockquote>


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</blockquote>
<blockquote>
<p>As is the case where acceptance is intended to be, or is appropriately indicated by some statement by the offeree, whether oral or in writing, the nature of acceptance by conduct depends upon the requirements, if any, stipulated by the offeror. In the absence of any special act or conduct prescribed by the offeror, acceptance may be inferred from the offeror’s [<em>sic</em>: should read &quot;offeree's&quot;]<sup>1</sup> conduct. Yet such conduct must indicate: (a) that the act in question was performed with a view to acceptance of the offer, and not from some other motive or for some other reason; and (b) that it was intended to be acceptance of the offer in question. <strong>In such cases the question is whether a reasonable man would interpret the offeree’s conduct as an acceptance of the offer.</strong></p>
<p>(Fridman, <em>The Law of Contract in Canada</em>, 4th ed. (1995), p. 56)</p>
</blockquote>


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<p>(Fridman, <em>The Law of Contract in Canada</em>, 4th ed. (1995), p. 56)</p>
</blockquote>
<p>A person is not held to terms that they <em>could not</em> have known at the time of the acceptance. See <em>Thornton v. Shoe Lane Parking Ltd.</em>, <a href="https://www.bailii.org/ew/cases/EWCA/Civ/1970/2.html" rel="nofollow noreferrer">[1970] EWCA Civ 2</a>.</p>
<p>Some onerous or unusual terms are treated with particular skepticism. Unexpected exclusion-of-liability clauses, for example, have been held not to be enforceable unless the offeror takes reasonable steps to ensure the offeree is notified of such clauses prior to their acceptance. See the discussion at <em>Apps v. Grouse Mountain Resorts Ltd.</em>, <a href="https://canlii.ca/t/j0q6b#par22" rel="nofollow noreferrer">2019 BCSC 855 at paragraphs 22-31</a>.</p>
<p>How the above law would apply to any of the circumstances you describe is for a finder of fact, and you are as well placed as any of us to go through that exercise.</p>


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<p>How the above law would apply to any of the circumstances you describe is for a finder of fact, and you are as well placed as any of us to go through that exercise.</p>
<p>For a critique of the common-law position, see Margaret Jane Radin, <a href="https://press.princeton.edu/books/hardcover/9780691155333/boilerplate" rel="nofollow noreferrer"><em>Boilerplate</em></a>. She agrees that the above is the state of the law, but discusses the fiction of agreement and criticizes such contracts as &quot;rights deletion schemes&quot; that create &quot;alternative legal universes.&quot;</p>
<hr />
<p><sup>1. This was likely meant to say &quot;offeree's conduct.&quot; At least two courts have indicated this was an error in the original: <a href="https://canlii.ca/t/g97vh#par54" rel="nofollow noreferrer">e.g. 1</a>; <a href="https://canlii.ca/t/1dz5v#par133" rel="nofollow noreferrer">e.g. 2</a>.</sup></p>


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Question Title: Civil liability and replacement values

Question Body: <p>Meet Bob. Bob's car was destroyed by Alice, thus besides other potential consequences, rendering Alice civilly liable for the value of the car.</p>
<p>Suppose that the car was bought on a temporary, time-limited promotion by the company wherein they were being sold for an early bird 50% off RRP, which promotion is no longer available.</p>
<p>Or, suppose that Bob had bought it for £1000 in a once in a lifetime sweetheart deal from his father, when the lowest one can find such a model of car for in functional working condition on the market is £5000.</p>
<p>Never again could anyone conceivably find that type of car again and replace it for £1000.</p>
<p>However, Bob's purchase receipt for his car shows a purchase price of £1000.</p>
<p>What was Bob's civil loss that Alice may be civilly liable for?</p>
<p>England and Wales sought, answers of all jurisdictions welcome.</p>


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Answer 1: <p>When it is possible to put Bob back in the same state that he was before, then that is what Alice needs to pay for. If Bob managed to buy a £20,000 car for £10,000, then he owned a £20,000 car, and Alice needs to pay so that Bob is in the same position again and owns a £20,000 pound car.</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="canada-container">canada</a><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="england-and-wales-container">england-and-wales</a></p>


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<p>Barring any statutory overlay, damages (liability) from vehicle damage in an automobile collision are assessed to be the market value that was lost: the difference between the pre- and post-collision fair market value (e.g. <em>Lai v. Leung</em>, <a href="https://canlii.ca/t/j9w05" rel="nofollow noreferrer">2020 BCCRT 1111</a> at paragraph 32; I know this is an administrative tribunal, but they're working at the front lines of this kind of dispute, so it is informative to see how they're applying the law).</p>
<p>This is merely an application of the overarching principle in negligence that the plaintiff is entitled to a sum that would put them in the position they would be in had the negligence not occurred. See <em>Cunningham v. Wheeler</em>; <em>Cooper v. Miller; Shanks v. McNee</em>, <a href="https://canlii.ca/t/1frv3" rel="nofollow noreferrer">[1994] 1 S.C.R. 359</a>, which states this is a long-standing principle in Canada and the United Kingdom:</p>
<blockquote>


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<p>The fundamental principle is that the plaintiff in an action for negligence is entitled to a sum of damages which will return the plaintiff to the position the plaintiff would have been in had the accident not occurred, in so far as money is capable of doing this.  This goal was expressed in the early cases by the maxim <em>restitutio in integrum</em>.  The plaintiff is entitled to full compensation and is not to be denied recovery of losses which he has sustained: <em>Livingstone v. Rawyards Coal Co.</em> (1880), 5 App. Cas. 25 (H.L.), at p. 39, per Lord Blackburn.  It has been affirmed repeatedly by Canadian courts and once again in more recent times by the House of Lords: &quot;. . . the basic rule is that it is the net consequential loss and expense which the court must measure&quot;: <em>Hodgson v. Trapp</em>, [1988] 3 W.L.R. 1281, at p. 1286.  At the same time, the compensation must be fair to both the plaintiff and the defendant.  In short, the ideal of the law in negligence


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<em>Hodgson v. Trapp</em>, [1988] 3 W.L.R. 1281, at p. 1286.  At the same time, the compensation must be fair to both the plaintiff and the defendant.  In short, the ideal of the law in negligence cases is fully restorative but non-punitive damages.  The ideal of compensation which is at the same time full and fair is met by awarding damages for all the plaintiff's actual losses, and no more.  The watchword is restoration; what is required to restore the plaintiff to his or her pre-accident position.</p>


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</blockquote>
<p>Evidence that could used be to establish the the pre- and post-collision market value includes appraisals, insurance adjustors estimates, repair estimates, used-car valuation datasets, etc.</p>


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Question Title: Termination by convenience clauses

Question Body: <p>Will a termination by convenience clause always be honored by the court, if it is used in a manner that is completely unethical? Eg. can a company terminate an account that just bought an expensive subscription without refunding said subscription?</p>

<p>Edit: can someone actually tell me whether this runs afoul of a tenet of contract law?</p>


Answer 1: <h2>Unadulterated contract law is brutal</h2>

<p>Nor is it the same in every jurisdiction - I will focus on <a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" rel="tag">australia</a>.</p>


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<p>Nor is it the same in every jurisdiction - I will focus on <a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" rel="tag">australia</a>.</p>

<p>The central tenant of contract law is that the parties are free to agree anything that is legal irrespective of whether this leads to what may seem to be a harsh or unjust outcome to an outside observer (or the parties themselves). At common law, harsh and unjust terms are legal - only <a href="https://en.wikipedia.org/wiki/Unconscionability#Australian_case_law" rel="nofollow noreferrer">unconscionability</a> attracts legal protection. However, see below.</p>


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<p>The parties have an obligation to follow the terms of the contract in a way that gives effect to the purpose of the contract and to not act in bad faith - there is no obligation to act in good faith. Notwithstanding, a party that scrupulously follows the terms of a contract cannot be acting in bad faith - they are doing what they agreed to do.</p>

<p>That said, most “termination for convenience” clauses are, by their nature, discretionary. Where a party has a discretionary power under a contract they must exercise it reasonably. This doesn’t mean that they can’t exercise the power if it causes damage to the other party but, if it does, then that is  a factor in whether the action was reasonable.</p>

<p>If the action was reasonable then only rights and obligations up to the date of termination are enforceable at common law. So, in your circumstance the customer is <strong>not</strong> entitled to a refund.</p>

<h2>However, ...</h2>


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<h2>However, ...</h2>

<p>Many contracts are not made purely at common law and statute law has knocked some of the harsh edges off.</p>

<p>For example, this contract may be subject to <a href="https://consumerlaw.gov.au/australian-consumer-law/legislation" rel="nofollow noreferrer">Australian Consumer Law</a> (ACL). </p>

<blockquote>
  <p>For the purposes of the ACL, a person is a 'consumer' if they acquire goods or services that are priced at less than $40,000. A person is also a 'consumer' if they acquire good or services that are priced at more than $40,000 but they are 'of a kind ordinarily acquired for personal, domestic or household use or consumption'.</p>
</blockquote>

<p>If your “expensive subscription” is less than $40,000 then ACL applies and you are entitled to a refund for the services not provided.</p>


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<p>If your “expensive subscription” is less than $40,000 then ACL applies and you are entitled to a refund for the services not provided.</p>

<p>Further, if the vendor engaged in “misleading or deceptive conduct” (irrespective of if you are a consumer) then the contract can be set aside and you get your money back.</p>

<p>If the contract is a “consumer contract” (which includes most “take it or leave it” contracts with individuals and small and medium enterprises) then a term is unlawful if it is unfair rather than unconscionable.</p>


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Answer 2: <p>Many U.S. states recognize a <strong>duty of good faith and fair dealing</strong> that may not be waived and is part of every contract.</p>
<p>In Colorado, this duty applies to the manner in which a party to a contract with discretionary rights under a contract is required to exercise those rights. This must be done in a manner consistent with the mutual intent of the parties in entering into the contract. It is implied as a matter of law in all contract and even sophisticated parties (e.g. big oil companies in business to business transactions) can't waive it.</p>
<p>Colorado's leading case on the topic is <em>Amoco Oil Co. v. Ervin</em>, <em>908 P.2d 493</em> (Colo. 1995) which spells out the doctrine at length:</p>
<blockquote>
<p>Colorado, like the majority of jurisdictions, recognizes that every
contract contains an implied duty of good faith and fair dealing. §
4-1-203, 2 C.R.S. (1992) (&quot;Every contract or duty within this title


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contract contains an implied duty of good faith and fair dealing. §
4-1-203, 2 C.R.S. (1992) (&quot;Every contract or duty within this title
imposes an obligation of good faith in its performance or
enforcement.&quot;); <em>see, e.g., Wells Fargo Realty Advisors Funding, Inc.
v. Uioli, Inc</em>., 872 P.2d 1359, 1362 (Colo.App.1994); <em>Friedman v.
Colorado Nat'l Bank</em>, 825 P.2d 1033, 1042 (Colo.App.1991), rev'd on
other grounds, 846 P.2d 159 (Colo.1993); <em>Ruff v. Yuma County Transp.
Co</em>., 690 P.2d 1296, 1298 (Colo.App. 1984); <em>see also Larese v.
Creamland Dairies, Inc</em>., 767 F.2d 716, 717 (10th Cir.1985)
(explaining that the franchisor-franchisee relationship is one that
requires the parties to deal with one another in good faith and in a
commercially reasonable manner); see generally Restatement (Second) of
Contracts § 205 (1981); 3 Arthur Linton Corbin, Corbin on Contracts §
561, at 278 n. 2 (1960); Steven J. Burton, Breach of Contract and the


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Contracts § 205 (1981); 3 Arthur Linton Corbin, Corbin on Contracts §
561, at 278 n. 2 (1960); Steven J. Burton, Breach of Contract and the
Common Law Duty to Perform in Good Faith, 94 Harv.L.Rev. 369, 369
(1980) [hereinafter Burton I].</p>
<p>The good faith performance doctrine is generally used to effectuate
the intentions of the parties or to honor their reasonable
expectations. <em>See State Farm Mut. Auto. Ins. Co. v. Nissen</em>, 851 P.2d
165, 168 (Colo. 1993); <em>Davis v. M.L.G. Corp</em>., 712 P.2d 985, 989
(Colo.1986); Steven J. Burton, More on Good Faith Performance of a
Contract: A Reply to Professor Summers, 69 Iowa L.Rev. 497, 499 (1984)
[hereinafter Burton II]. Good faith performance of a contract involves
&quot;faithfulness to an agreed common purpose and consistency with the
justified expectations of the other party.&quot; <em>Wells Fargo</em>, 872 P.2d at
1363 (citing Restatement (Second) of Contracts § 205 cmt. a (1981)).


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justified expectations of the other party.&quot; <em>Wells Fargo</em>, 872 P.2d at
1363 (citing Restatement (Second) of Contracts § 205 cmt. a (1981)).
The application of the reasonable expectations doctrine often &quot;fails
to give effect to some hornbook rules governing the construction of
contracts,&quot; including &quot;the precept that contracts which are free from
ambiguity are to be enforced as written....&quot; <em>Davis</em>, 712 P.2d at 990
&amp; n. 7. Nonetheless, adherence to this principle promotes &quot;the central
policy underlying contract law, that of construing contracts so as to
effectuate the parties' intentions....&quot; <em>Id</em>. at 991; <em>see also State
Farm</em>, 851 P.2d at 166-67; <em>Simon v. Shelter Gen. Ins. Co</em>., 842 P.2d
236, 240 (Colo.1992).</p>
<p>The duty of good faith and fair dealing applies when one party has
discretionary authority to determine certain terms of the contract,


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236, 240 (Colo.1992).</p>
<p>The duty of good faith and fair dealing applies when one party has
discretionary authority to determine certain terms of the contract,
such as quantity, price, or time. <em>Hubbard Chevrolet Co. v. General
Motors Corp</em>., 873 F.2d 873, 876 (5th Cir.), cert. denied, 493 U.S.
978, 110 S. Ct. 506, 107 L. Ed. 2d 508 (1989); <em>Burton II</em>, <em>supra</em>,
at 501. The covenant may be relied upon only when the manner of
performance under a specific contract term allows for discretion on
the part of either party. <em>See Hubbard Chevrolet Co</em>., 873 F.2d at
877. However, it will not contradict terms or conditions for which a party has bargained. <em>Id</em>.</p>
<p>The concept of discretion in performance &quot;refers to one party's power
after contract formation to set or control the terms of performance.&quot;
Burton II, supra, at 501. Discretion occurs when the parties, at
formation, defer a decision regarding performance terms of the


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Burton II, supra, at 501. Discretion occurs when the parties, at
formation, defer a decision regarding performance terms of the
contract. Id. Generally, the good faith performance doctrine may be
used to protect a &quot;weaker&quot; party from a &quot;stronger&quot; party. Weakness and
strength in this context, however, do not refer to the relative
bargaining power of the parties. One commentor explained:</p>
<p>&quot;Good faith performance cases typically involve arm's-length
transactions, often between sophisticated business persons. The
relative strength of the party exercising *499 discretion typically
arises from an agreement of the parties to confer control of a
contract term on that party. The dependent party then is left to the
good faith of the party in control.&quot;</p>
<p>Burton I, <em>supra</em>, at 383-84.</p>
</blockquote>


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contract term on that party. The dependent party then is left to the
good faith of the party in control.&quot;</p>
<p>Burton I, <em>supra</em>, at 383-84.</p>
</blockquote>
<p>A right to terminate a contract for convenience is a discretionary right under a contract that is nominally absolute. But, if that right were exercised in a manner calculated to harm the other party to the contract rather than primarily to allow a party to end a contractual relationship that had become burdensome or undesirable, that might breach the implied duty of good faith and fair dealing in the contract.</p>


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Answer 3: <p>In general, one party may cancel a contract for any reason which is provided for in the contract, and does not violate any current law. However, if such a contract is brought before a court which includes equity jurisdiction (as most common law courts now do), the court might well object to the terminating party obtainign an <em><strong>unjust enrichment</strong></em> as by collecting the prove for a service, but never providing th service nor a refund. Such a court might well order a refund of the unearned price, unless some other factor justified the termination.</p>
<p>Additionally, if the transaction is considered a <em><strong>consumer transaction</strong></em> under local law, consumer protection laws may regulate the transaction, and prohibit a cancellation without refund. The scope and provisions of such laws vary widely between jurisdictions, so one might or might not apply in any particular ase..</p>


Tags: contract-law


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Question Title: Are there any laws that prohibit the sale of or protect the buyer of Wisconsin real estate obtained through a TOD before the 120 day period is up?


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Question Body: <p>Based on the WI State Statutes below</p>
<p><a href="https://docs.legis.wisconsin.gov/statutes/statutes/867/046/2" rel="nofollow noreferrer">867.046 (2) &quot;Summary confirmation of interest in property&quot;</a>,</p>
<p>and</p>
<p><a href="https://docs.legis.wisconsin.gov/statutes/statutes/867/046/6" rel="nofollow noreferrer">867.046 (6) &quot;Purchasers from petitioners protected&quot;</a>,</p>
<p>and</p>
<p><a href="https://docs.legis.wisconsin.gov/statutes/statutes/705/ii/15/8" rel="nofollow noreferrer">705.15 (8) &quot;Nonprobate transfer of farming implements at death&quot;</a></p>
<p>and the facts for this case:</p>
<ul>
<li>There are 3 grandchildren.</li>
<li>1 of them is listed as the property TOD beneficiary.</li>
<li>The same 1 is also named in the will as inheriting all other possessions (nothing of value - donated already).</li>
<li>The other 2 are purposefully left out of both the will and TOD.</li>


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<li>The same 1 is also named in the will as inheriting all other possessions (nothing of value - donated already).</li>
<li>The other 2 are purposefully left out of both the will and TOD.</li>
<li>To clarify, the will does not list the TOD property but is noted as further evidence of her purposeful intent to leave the 2 nothing.</li>
</ul>
<p>If the TOD beneficiary completed the requirements listed in 867.046 (2) and filed a transfer return,</p>
<ol>
<li>Would a buyer and their financier be protected from legal action against the estate if the home was bought before 120 days after decedents death?</li>
<li>Is there any Wisconsin state statute or legal precedence that compels a title insurance company to require blood relatives that would have had a claim via intestacy IF NOT for a TOD and will?</li>
<li>Does the fact that the grandchildren were adopted by a completely different family at a young age matter?</li>


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<li>Does the fact that the grandchildren were adopted by a completely different family at a young age matter?</li>
<li>Would the fact that the grandchildren's parents (both mom and dad) died before adoption matter?</li>
</ol>


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Answer 1: <blockquote>
<p>Would a buyer and their financier be protected from legal action
against the estate if the home was bought before 120 days after
decedents death?</p>
</blockquote>
<p>Only if the buyer and the financier were &quot;bona fide purchasers for value without notice&quot; (Per § 867.046(6)). In other words, if they are third-party buyers paying an arm's length price, who didn't know that there was a potentially disputable TOD transfer. Since the TOD transfer and date of death would normally be set forth in the real property records, this would rarely be the case.</p>
<blockquote>
<p>Is there any sort of stipulation, statue, or legal precedence that
requires a title insurance company to require blood relatives that may
have had a claim IF NOT for both a TOD and will? (in this case, there
are 3 grandchildren, 1 of them is listed as the TOD beneficiary and
sole inheritor in the Will, the other 2 are left out)</p>
</blockquote>


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are 3 grandchildren, 1 of them is listed as the TOD beneficiary and
sole inheritor in the Will, the other 2 are left out)</p>
</blockquote>
<p>A title insurance company is allowed to set any standards it deems appropriate to insure that the buyer's title which is being guaranteed is unimpaired. During the 120 day period after the date of death it is possible to contest the TOD. Until it is formally admitted to probate, the will may be contested. The fact that both a TOD and a will both make provision for the same property, is itself suspect since if there is a TOD it shouldn't be subject to the will. If the will and TOD are invalid, the heirs at law (i.e. the people who would inherit if there was no will or TOD under the intestacy laws) take. So, requiring a sign off from the heirs at law, in addition to the beneficiary named in the TOD and the will, is a sensible thing for a title insurance company to require.</p>
<blockquote>


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<blockquote>
<p>Does the fact that the grandchildren were adopted by a completely
different family at a young age matter?</p>
</blockquote>
<p>If the grandchildren are still heirs at law of the grandparent under WI law, then it doesn't matter. I'm not familiar with that little corner of WI law, so I don't know under what circumstances adopted children are heirs at law of the biological grandparents.</p>
<blockquote>
<p>Would the fact that the grandchildren's parents (both mom and dad)
died before adoption matter?</p>
</blockquote>
<p>Sometimes this is a matter that is pertinent to the question of whether the grandchildren are still heirs at law under state law. I don't know if this is the case in WI, but I wouldn't be surprised if it was.</p>


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Question Title: Is this a conflict of interest for the lawyer

Question Body: <p>A lawyer, in the united states, is hired by person X to prepare her will and a medical directive giving her son the power to speak for her on medical issues (e.g. a POA for medical) if the mother cannot speak for herself. The attorney does the work and then the mother pays for the work.</p>
<p>After some time, the son sends an email to the attorney stating that there is reasonable evidence that the mother should be in a care facility. The son would like to put the mother in a care facility  against her wishes and would like the lawyer to handle the case. Would it be a conflict of interest for the lawyer to take the case?</p>


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Answer 1: <p>As a threshold issue, the question frames a situation in which a conflict of interest could sometimes arise. But the facts in the question really aren't rich enough for a full analysis of whether or not there is a conflict of interest.</p>
<p>This question is controlled (more or less entirely) by <a href="https://www.njcourts.gov/attorneys/rules-of-court/duties-former-clients" rel="nofollow noreferrer">New Jersey Rule of Professional Conduct 1.9</a>. This states:</p>
<blockquote>
<p>Duties to Former Clients</p>
<p>(a) A lawyer who has represented a client in a matter shall not
thereafter represent another client in the same or a substantially
related matter in which that client's interests are materially adverse
to the interests of the former client unless the former client gives
informed consent confirmed in writing.</p>
<p>(b) A lawyer shall not knowingly represent a person in the same or a
substantially related matter in which a firm with which the lawyer


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informed consent confirmed in writing.</p>
<p>(b) A lawyer shall not knowingly represent a person in the same or a
substantially related matter in which a firm with which the lawyer
formerly was associated had previously represented a client,</p>
<p>(1) whose interests are materially adverse to that person; and</p>
<p>(2) about whom the lawyer, while at the former firm, had personally
acquired information protected by RPC 1.6 and RPC 1.9(c) that is
material to the matter unless the former client gives informed
consent, confirmed in writing.</p>
<p>Notwithstanding the other provisions of this paragraph, neither
consent shall be sought from the client nor screening pursuant to RPC
1.10 permitted in any matter in which the attorney had sole or primary responsibility for the matter in the previous firm.</p>
<p>(c) A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a client in a
matter shall not thereafter:</p>


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<p>(c) A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a client in a
matter shall not thereafter:</p>
<p>(1) use information relating to the representation to the disadvantage
of the former client except as these Rules would permit or require
with respect to a client, or when the information has become generally
known; or</p>
<p>(2) reveal information relating to the representation except as these
Rules would permit or require with respect to a client.</p>
<p>(d) A public entity cannot consent to a representation otherwise
prohibited by this Rule.</p>
</blockquote>
<p>Rule 1.9 also has <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/comment_on_rule_1_9/" rel="nofollow noreferrer">official comments</a> that would be highly persuasive:</p>
<blockquote>
<p>Client-Lawyer Relationship</p>


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<blockquote>
<p>Client-Lawyer Relationship</p>
<p><a href="https://www.njcourts.gov/attorneys/rules-of-court/duties-former-clients" rel="nofollow noreferrer">1</a> After termination of a client-lawyer relationship, a lawyer has
certain continuing duties with respect to confidentiality and
conflicts of interest and thus may not represent another client except
in conformity with this Rule. Under this Rule, for example, a lawyer
could not properly seek to rescind on behalf of a new client a
contract drafted on behalf of the former client. So also a lawyer who
has prosecuted an accused person could not properly represent the
accused in a subsequent civil action against the government concerning
the same transaction. Nor could a lawyer who has represented multiple
clients in a matter represent one of the clients against the others in
the same or a substantially related matter after a dispute arose among
the clients in that matter, unless all affected clients give informed


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the same or a substantially related matter after a dispute arose among
the clients in that matter, unless all affected clients give informed
consent. See Comment [9]. Current and former government lawyers must
comply with this Rule to the extent required by Rule 1.11.</p>
<p><a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/comment_on_rule_1_9/" rel="nofollow noreferrer">2</a> The scope of a &quot;matter&quot; for purposes of this Rule depends on the
facts of a particular situation or transaction. The lawyer's
involvement in a matter can also be a question of degree. When a
lawyer has been directly involved in a specific transaction,
subsequent representation of other clients with materially adverse
interests in that transaction clearly is prohibited. On the other
hand, a lawyer who recurrently handled a type of problem for a former


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interests in that transaction clearly is prohibited. On the other
hand, a lawyer who recurrently handled a type of problem for a former
client is not precluded from later representing another client in a
factually distinct problem of that type even though the subsequent
representation involves a position adverse to the prior client.
Similar considerations can apply to the reassignment of military
lawyers between defense and prosecution functions within the same
military jurisdictions. The underlying question is whether the lawyer
was so involved in the matter that the subsequent representation can
be justly regarded as a changing of sides in the matter in question.</p>
<p>[3] Matters are &quot;substantially related&quot; for purposes of this Rule if
they involve the same transaction or legal dispute or if there
otherwise is a substantial risk that confidential factual information
as would normally have been obtained in the prior representation would


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otherwise is a substantial risk that confidential factual information
as would normally have been obtained in the prior representation would
materially advance the client's position in the subsequent matter. For
example, a lawyer who has represented a businessperson and learned
extensive private financial information about that person may not then
represent that person's spouse in seeking a divorce. Similarly, a
lawyer who has previously represented a client in securing
environmental permits to build a shopping center would be precluded
from representing neighbors seeking to oppose rezoning of the property
on the basis of environmental considerations; however, the lawyer
would not be precluded, on the grounds of substantial relationship,
from defending a tenant of the completed shopping center in resisting
eviction for nonpayment of rent. Information that has been disclosed
to the public or to other parties adverse to the former client


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eviction for nonpayment of rent. Information that has been disclosed
to the public or to other parties adverse to the former client
ordinarily will not be disqualifying. Information acquired in a prior
representation may have been rendered obsolete by the passage of time,
a circumstance that may be relevant in determining whether two
representations are substantially related. In the case of an
organizational client, general knowledge of the client’s policies and
practices ordinarily will not preclude a subsequent representation; on
the other hand, knowledge of specific facts gained in a prior
representation that are relevant to the matter in question ordinarily
will preclude such a representation. A former client is not required
to reveal the confidential information learned by the lawyer in order
to establish a substantial risk that the lawyer has confidential
information to use in the subsequent matter. A conclusion about the


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to establish a substantial risk that the lawyer has confidential
information to use in the subsequent matter. A conclusion about the
possession of such information may be based on the nature of the
services the lawyer provided the former client and information that
would in ordinary practice be learned by a lawyer providing such
services.</p>
<p>Lawyers Moving Between Firms [4] When lawyers have been associated
within a firm but then end their association, the question of whether
a lawyer should undertake representation is more complicated. There
are several competing considerations. First, the client previously
represented by the former firm must be reasonably assured that the
principle of loyalty to the client is not compromised. Second, the
rule should not be so broadly cast as to preclude other persons from
having reasonable choice of legal counsel. Third, the rule should not
unreasonably hamper lawyers from forming new associations and taking


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having reasonable choice of legal counsel. Third, the rule should not
unreasonably hamper lawyers from forming new associations and taking
on new clients after having left a previous association. In this
connection, it should be recognized that today many lawyers practice
in firms, that many lawyers to some degree limit their practice to one
field or another, and that many move from one association to another
several times in their careers. If the concept of imputation were
applied with unqualified rigor, the result would be radical
curtailment of the opportunity of lawyers to move from one practice
setting to another and of the opportunity of clients to change
counsel.</p>
<p>[5] Paragraph (b) operates to disqualify the lawyer only when the
lawyer involved has actual knowledge of information protected by Rules
1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm,


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1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm,
and that lawyer later joined another firm, neither the lawyer
individually nor the second firm is disqualified from representing
another client in the same or a related matter even though the
interests of the two clients conflict. See Rule 1.10(b) for the
restrictions on a firm once a lawyer has terminated association with
the firm.</p>
<p>[6] Application of paragraph (b) depends on a situation's particular
facts, aided by inferences, deductions or working presumptions that
reasonably may be made about the way in which lawyers work together. A
lawyer may have general access to files of all clients of a law firm
and may regularly participate in discussions of their affairs; it
should be inferred that such a lawyer in fact is privy to all
information about all the firm's clients. In contrast, another lawyer


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and may regularly participate in discussions of their affairs; it
should be inferred that such a lawyer in fact is privy to all
information about all the firm's clients. In contrast, another lawyer
may have access to the files of only a limited number of clients and
participate in discussions of the affairs of no other clients; in the
absence of information to the contrary, it should be inferred that
such a lawyer in fact is privy to information about the clients
actually served but not those of other clients. In such an inquiry,
the burden of proof should rest upon the firm whose disqualification
is sought.</p>
<p>[7] Independent of the question of disqualification of a firm, a
lawyer changing professional association has a continuing duty to
preserve confidentiality of information about a client formerly
represented. See Rules 1.6 and 1.9(c).</p>
<p>[8] Paragraph (c) provides that information acquired by the lawyer in


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preserve confidentiality of information about a client formerly
represented. See Rules 1.6 and 1.9(c).</p>
<p>[8] Paragraph (c) provides that information acquired by the lawyer in
the course of representing a client may not subsequently be used or
revealed by the lawyer to the disadvantage of the client. However, the
fact that a lawyer has once served a client does not preclude the
lawyer from using generally known information about that client when
later representing another client.</p>
<p>[9] The provisions of this Rule are for the protection of former
clients and can be waived if the client gives informed consent, which
consent must be confirmed in writing under paragraphs (a) and (b). See
Rule 1.0(e). With regard to the effectiveness of an advance waiver,
see Comment [22] to Rule 1.7. With regard to disqualification of a
firm with which a lawyer is or was formerly associated, see Rule 1.10.</p>
</blockquote>


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see Comment [22] to Rule 1.7. With regard to disqualification of a
firm with which a lawyer is or was formerly associated, see Rule 1.10.</p>
</blockquote>
<p>There is also considerable commentary often in the form of official ethics opinions from a state attorney regulator or bar association, and case law interpreting this (which since it is largely uniform nationally includes case law from other states that is given great weight if there is no in state case law on point). The opinions and cases examine the general principles about in far more specific fact patterns which helps guide the analysis in a particular case.</p>


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Question Title: Can an improper prosecution defeat the double jeopardy rule?

Question Body: <p>If a case is brought under let's say murder and it is deemed the incorrect law to have charged the defendant with. Let's say due to an incompetent DA if the defendant is found not guilty because of the incorrect law he was charged with breaking, could new charges be brought for the correct offense, let's say manslaughter? Is double-jeopardy applied to cases brought under the same event? One death that the defendant is charged with or can an improper prosecution defeat the double jeopardy rule?</p>
<p>I would hope an incompetent DA is not the accused's problem.</p>


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Answer 1: <p>Typically at trial, the &quot;Trier(s) of Fact&quot; (usually the Jury, unless the defendant requests a bench trier, then it's the judge) will have instructions from the &quot;Trier of Law&quot; (always the Judge) that will allow them to find guilt for &quot;Lesser and Included Charges&quot;.  For example, in the U.S., unjustified homicide (legal definition used for manslaughter and murder) comes in three broad types:  1st Degree Murder, 2nd Degree Murder, and Manslaughter (ordered from worst to lesser offense).  All the elements to convict on Manslaughter exist in 2nd degree murder, and all elements to convict on 2nd degree murder exist in 1st degree murder.  This means that a jury can be given the option that if they don't think the evidence supports a 1st degree charge, they can see if it supports a 2nd degree or Manslaughter.</p>


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<p>However, they can only convict on the charge or the the most serious &quot;Lesser and Included&quot; charges.   They cannot find guilt for all three for the same offense.</p>
<p>This is not in violation of double-jeopardy as this is all presented at the same trial.  Double-Jeopardy attaches once the jury is fully selected.  If the jury acquits, the prosecutor cannot try for a lesser charge. They have one shot.</p>
<p>The only time that you can be tried for the same crime a second time is if you are acquitted and it turns out that you were acquitted because the &quot;trier of fact&quot; was corruptly influenced by you or people acting on your direction to find you not guilty (the idea being since the fix was in, you were never in jeopardy to begin with).  In all of American Law, this has happened exactly once, so it is very rare.</p>


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<p>Mistrials are another way to get a second trial but mistrials typically come about because of either lawyers misbehaving such that an impartial trial is no longer possible (if it's the prosecutor, they can't retry... if they could it would incentivize them to misbehave in front of a jury that is not favorable to them in the hopes of refiling and getting a more favorable jury).  Mistrials rely on a legal fiction that the trial that was declared a Mistrial never happened in the first place.</p>
<p>If the mistrial is declared on appeal, it is only to the benefit of the convicted, so it is essentially him waiving his right against Double-Jeopardy.  Depending on the reason, the prosecution may not refile the case (usually because new exculpatory evidence was found) or cannot (if they did not reveal the exculpatory evidence prior to the trial).</p>


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<p>Edit:  Since this is U.S. specific, it should be pointed out that in the United States, Double Jeopardy applies only to one jurisdiction.  At any given time in the U.S., you are almost always under 2 jurisdictions (the state/territory's jurisdiction and the Federal government's jurisdiction) and as much as 7 (at the &quot;Four Corners&quot; you are under the Jurisdiction of four states, 2 tribal governments (which are independent of the states those reservations exist in) and the Federal Government).  This means that if the state charges you with a crime and fails to properly prosecute you, the Feds can also charge you with a crime and prosecute you properly.</p>
<p>Typically, the Federal government will prosecute you only if there are federal laws that you violated that the state has no equivalent of OR the state has done an optionally poor job of prosecuting you or properly punishing you (we're talking 30 days jail time for 1st degree murder).</p>


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<p>It is rare for the feds to go after common criminals and they only will go for them if the crime involves crossing state lines as an element of the crime OR the crime involves federal property.  YOu are more likely to see federal kidnapping charges against non-custodial parents who take the kid to another state than you are Federal Murders.  Typically, the Feds will be satisfied if the crime is tried in state court, no matter the result (it also helps them getting away with the Dual Jurisdiction rule.  You can't challenge it if you aren't made a victim of it).</p>
<p>To give an example of when they might come in, if a non-U.S. citizen enters the United States by way of illegal crossing of the Canada-U.S./Montana Border, and then proceeds to kill a U.S. border agent in the process and is caught by Montana State Police, who can prosecute him and for what?</p>


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<p>Montana can prosecute him for one count of 1st Degree Murder for the murder of a person under the jurisdiction of Montana (the border guard).</p>
<p>The Federal Government can prosecute him for one count of 1st Degree Murder for the killing of a person under the jurisdiction of the U.S. Federal Government, an additional count of Murder under the Felony Murder rule (If someone dies as a result of your illegal criminal action, that death is a 1st degree Murder) or under the law against killing a federal employee while carrying out their duties (this second option might be rolled in with the killing someone under Federal Jurisdiction).</p>
<p>Montana cannot prosecute the accused for the Felony murder because U.S. states cannot enforce immigration law.  Therefore, in the eyes of Montana, the accused was not committing a crime that lead to someone's death. He just killed a man.</p>


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<p>The feds will likely have Montana take first crack at the case because Montana has more immediate access to labs and evidence than the Feds and because states tend to be quicker about this stuff.  Once the case resolves, the Feds will then figure out if they want to charge him for both Murder charges and the Immigration violation, only the Felony Murder Charge and Immigration violation (and accept Montana's outcome of the similar murder charge), or just the Immigration violation (and accept the outcome of Montana's trial for both possible Federal murder charges).</p>
<p>For academic purposes, the trial for the Immigration Charge will likely be held after the sentence for the Montana charges (if there are any) are carried out because deporting the suspect back to Canada (or his home country) will result in zero jail time because no element of the crime took place there.</p>


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Answer 2: <h2>You cannot be tried for the same <em>crime</em></h2>
<p><a href="https://en.wikipedia.org/wiki/United_States_v._Dixon" rel="nofollow noreferrer">United States v. Dixon</a> reinstated the <a href="https://en.wikipedia.org/wiki/Blockburger_v._United_States" rel="nofollow noreferrer">Blockburger</a> standard which says that crimes are different if different elements need to be proved.</p>
<blockquote>
<p>The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.</p>
</blockquote>
<p>Murder requires an additional fact to be proved - intent - but manslaughter does not require an additional fact - all of the elements of manslaughter must be proved in order to prove murder. Therefore they are the same offence and subject to double jeopardy.</p>


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Question Title: Can a prosecutor challenge a gubenatorial pre-emptive pardon?

Question Body: <p>In a state where the governor has power (<a href="https://law.stackexchange.com/questions/21688/do-any-us-state-governors-have-legal-authority-to-preemptively-pardon-persons">Do (any) US State Governors have legal authority to preemptively pardon persons of a state crime?</a>) to pardon a capital crime <strong>before</strong> prosecution, does a prosecutor who learns of the governor's intent to pardon have any way to force prosecution?</p>


Answer 1: <h2>There is no recourse</h2>
<p>The Pardon results in the pardoned person having no liability for the act, no matter if it was a crime or not, and no matter whether the pardon pre-dates a prosecution. There is no legal or political way to appeal a pardon. There isn't even a way to <em>take back</em> a pardon! As a result, the prosecutor or the next governor can do nothing.</p>


Tags: united-states


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Question Title: Ok as a YouTuber I wish to make a animation that features darth maul and Vader am I allowed to use the original design or do I have to majorly alter

Question Body: <p>Am I able to use the original maul design can I minorly alter it or do I have to majorly change his design</p>


Answer 1: <p>Copyright includes the exclusive right to create derivative works. So &quot;majorly changing&quot; the design will not get you around any accusations of copyright infringement. What you would have to do is to create a design from scratch.</p>
<p>And as Trish said, I don't know who owns the originals, but if it is Disney, they <em>will</em> sue you and it will cost you much more money than you can afford. Whether they win their case or not.</p>


Tags: united-states


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Question Title: Can employment contracts force all litigation into arbitration?

Question Body: <p>Is it legal for an employment contract to stipulate that all litigation from the employee towards the employer must be in the form of arbitration or do you have the right to litigate in the court system?</p>
<p><a href="https://youtu.be/HQvM7IhrtYo" rel="nofollow noreferrer">Source.</a></p>


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Answer 1: <p>The only significant exception to employment arbitration scope in the U.S. is for sexual assault cases under a law that took effect about a year ago (whose effective date language is actively being litigated over what triggers a before or after effective date determination).  H.R. 4445, the <a href="https://www.congress.gov/bill/117th-congress/house-bill/4445/text" rel="nofollow noreferrer">Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act</a> (the Act), into law on March 3, 2022.</p>
<p>Also, arbitration clauses can't bind non-party government labor law enforcement agencies that aren't parties to the arbitration agreement. Likewise, criminal violations can't be subjected to arbitration (e.g. a criminal prosecutor prosecuted wage theft claim, or involuntary servitude claim).</p>


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<p>Limitations on the scope of the substantive remedy in arbitration are not always allowed, but if the necessary substantive remedy is available in arbitration, any employment matter can be subject to arbitration if the parties agree either pre-dispute or post-dispute in the U.S. An arbitration clause isn't supposed to change substantive law in practice, even if it is possible to do so unreviewably in practice on a case by case basis.</p>
<p>At some point, children or other people who lack capacity may be incapable of agreeing to an arbitration clause but the threshold is low and can be met by a fiduciary for the person who personally lacks capacity to contract.</p>


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Answer 2: <p>See <a href="https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf" rel="nofollow noreferrer"><em>Epic Systems Corp. v. Lewis</em>, 584 U. S. ____ (2018)</a>.</p>
<p>Courts must enforce agreements to arbitrate, even in the employment context. Where an agreement requires arbitration, the only way to avoid this is through &quot;generally applicable contract defenses, such as fraud, duress, or unconscionability.&quot;</p>


Tags: united-states, us-constitution, civil-rights


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Question Body: <p>Unlike a normal GmbH, a founder/partner (Gesellschafter) of a gemeinnützige GmbH (or a UG) may, according to the tax code, not receive any profits:</p>
<blockquote>
<p>Die Mitglieder oder Gesellschafter (Mitglieder im Sinne dieser Vorschriften) dürfen keine Gewinnanteile und in ihrer Eigenschaft als Mitglieder auch keine sonstigen Zuwendungen aus Mitteln der Körperschaft erhalten.</p>
<p>-- <a href="https://dejure.org/gesetze/AO/55.html#Abs1:Nr1:S2" rel="noreferrer">§ 55 Abs. 1 Nr. 1 Satz 2 AO</a></p>
</blockquote>
<p>Roughly translated:</p>
<blockquote>
<p><em>The members or partners (members within the meaning of these regulations) may not receive any portion of the profits and in their capacity as members, may not receive any other benefits from the funds of the corporation.</em></p>
</blockquote>


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</blockquote>
<p>However, people can be hired by a non-profit company and some websites indicate that Geschäftsführer (CEOs) can be paid, and even a Gesellschafter (partner) may be a CEO, for instance:</p>
<blockquote>
<p>Würde sich nun ein geschäftsführender Gesellschafter ein zu hohes Gehalt auszahlen, könnte das als verdeckte Gewinnausschüttung gewertet werden</p>
<p>-- <a href="https://www.firma.de/firmengruendung/der-geschaeftsfuehrer-einer-ggmbh/" rel="noreferrer">firma.de - Der Geschäftsführer einer gGmbH: Das müssen Sie wissen</a></p>
</blockquote>
<blockquote>
<p><em>If a managing partner were to receive too high a salary, this could be interpreted as hidden profit distribution.</em></p>
</blockquote>
<p>Does the tax code above not explicitly exclude a partner from receiving a salary, even as a &quot;CEO&quot;?</p>


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Answer 1: <p>The crucial phrase is &quot;<em>in ihrer Eigenschaft als Mitglieder</em>&quot;. This restricts the prohibition on receiving benefits from the gGmbH to benefits you'd receive <strong>because</strong> you are a partner. It is common to have more than one legal relationship with a (g)GmbH, and being a CEO or otherwise employed by one is a typical situation. The snippet from the law does not restrict what benefits you may receive in your CEO role, just those in your partner role.</p>
<p>The distinction is also relevant for regular GmbHs: If you are the CEO of a GmbH as well as a partner, then your salary as CEO is taxed differently than your share of the profits. But typically the tax on salary will be higher than the tax on profits, so there is little incentive here to overpay yourself.</p>


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Answer 2: <p>The second quotation clearly contemplates that managing partners will be compensated for their work because it offers a warning about the possible consequences of a managing partner's salary being too high.  If <em>any</em> salary were excluded they would have worded it differently and would not have mentioned the relative magnitude.</p>


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<p>I'm less certain about how to interpret the first quotation -- the actual statute.  It forbids benefits from the funds of the corporation flowing to members <em>in the capacity of members</em> but that is possibly not inconsistent with paying a salary to a member who is also an executive (&quot;Geschäftsführer&quot;) because the salary is paid in that capacity (that is, it arises from a different aspect of the recipient's relationship to the company).  My German isn't good enough to comment on whether &quot;Zuwendung&quot; even includes salaries; the definition in my dictionary is &quot;financial support, contribution, donation,&quot; which could well be limited to unearned income.</p>


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Answer 3: <h2>Do you honestly expect the CEO of German Red Cross to work for free?</h2>
<p>It’s a USD 41 million business with hundreds of employees. CEO salaries in Germany are lower than in the English speaking world and salaries in the charity/not-for-profit sector are usually lower overall than the for-profit sector because employees in that sector get to feel good about themselves but the salary for a CEO of a major charity like the Red Cross would be several hundred thousand Euros.</p>
<p>In Germany, as elsewhere, people are entitled to be paid for the work they do, even charity work.</p>


Tags: tax-law, germany


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Question Body: <p>Around a decade ago the company I was working for launched a new startup. It was owned by my company and I was tasked to work as a consultant helping them set up their IT infrastructure 50% of my time. As they were using completely different setups I was given an additional laptop. The startup was always its own legal entity so the laptop was owned by them. After a couple of months my work was done but they asked me to keep my laptop in case they have some follow up questions.</p>
<p>Roughly 2 years later the startup was carved out of the company as a completely standalone entity (with a majority share from the company I was working for). Unfortunately a year later it became insolvent and was liquidated eventually (long time ago completed). All this time I was still having the laptop I was given to work with.</p>


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<p>Recently I was searching for something in my cellar and I found that laptop. I was curious, what is the ownership situation of this laptop now? I have no plans to actually find someone to give it back to, but legally speaking, what would be my obligation in this scenario?</p>
<p>My jurisdiction (Switzerland) does not have a lot of people on here, so I am open to any countries, I am most interested in Western European laws, but also what would apply for example in the US.</p>


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Answer 1: <h2>The company continues to own all its assets</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 appointment of a liquidator to does not change what the company owns - it just changes who is in control (the liquidator rather than the directors) and the purpose for which it is being run (realisation of assets for the benefit of creditors rather than as a going concern for the benefit of shareholders).</p>
<p>The laptop still belongs to the company.</p>
<p>The liquidator's job is to sell all commercially realisable assets and distribute the proceeds to the creditors. When they have done that (which can take years), they get a release from the court, and the company is deregistered 3 months later. Any assets of a deregistered company belong to the shareholders.</p>


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<p>A 3-year-old laptop is not a commercially realisable asset, so it's not something a liquidator would be interested in. You could tell the liquidator you have it, and they are welcome to collect it at any reasonable time. They will probably say, &quot;keep it.&quot;</p>


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Answer 2: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>In most U.S. jurisdictions, a dissolved company continues to be the owner of any property not disposed of belonging to the company, notwithstanding the fact that a liquidation of its assets and its dissolution and winding up of its business have otherwise been completed.</p>


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<p>On the other hand, possession of items of personal property for a sufficiently long period of time after it should have been returned that is not permissive gives you title by adverse possession to it. Usually the adverse possession duration required by law for personal property is much shorter time period than the time period of adverse possession of real property. Often it is the statute of limitations for an action for replevin which is a lawsuit to seek physical return of a particular piece of property, or for conversion of personal property. But, the adverse possession deadline does not run if the possession of the property is permissive or if the possession of the property is secret.</p>


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Question Title: Is it legal for a US minor to take puberty blockers /for a doctor to prescribe puberty blockers to a minor without their parents knowledge or consent?

Question Body: <p>Is it legal to prescribe a minor puberty blockers without their parents' knowledge or consent? Is there an age limit?</p>
<p>Semi-related example:
In Germany, it is legal to prescribe girls birth control pills without their parents' knowledge at the age of 14. Is this case in the US or the UK for hormone blockers?</p>
<p>The Times claims that at least in the UK, you can get hormone blockers even if your parents are against it.</p>
<p><a href="https://www.thetimes.co.uk/article/tavistock-nhs-trust-wins-appeal-over-puberty-blockers-for-children-7k9pg9gfw" rel="nofollow noreferrer">Parents’ consent not needed to block puberty, say judges</a></p>
<p>This is a purely legal question out of curiosity.</p>


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Answer 1: <p>In the US, the answer is complicated. First, puberty blockers are approved by the FDA, but only as a treatment for precocious puberty. There is an off-label use for transgender people, which has been outlawed in some states (thus parental consent / notification is irrelevant). That leaves us with general parental consent laws. <a href="https://ndaa.org/wp-content/uploads/Minor-Consent-to-Medical-Treatment-2.pdf" rel="nofollow noreferrer">This document</a> summarizes the laws of various states regarding parental consent, where again it depends on the specific state whether parental notification or consent is required (and at what age). As you can see, the laws are very complex, involving different ages for different treatments. <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=71.34.530" rel="nofollow noreferrer">In Washington</a>, the age of consent for outpatient medical treatment is 13. <a href="https://www.leg.state.nv.us/nrs/nrs-129.html" rel="nofollow


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rel="nofollow noreferrer">In Washington</a>, the age of consent for outpatient medical treatment is 13. <a href="https://www.leg.state.nv.us/nrs/nrs-129.html" rel="nofollow noreferrer">In Nevada</a>, parental consent is required until age 18 except for emancipated minors and for limited medical purposes (emergencies, substance abuse and STD treatment...).</p>


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Question Body: <p>In <a href="https://arstechnica.com/cars/2023/05/teslas-full-self-driving-sees-pedestrian-chooses-not-to-slow-down/" rel="noreferrer">this</a> article reporting on a Tesla in Full Self Driving (FSD) mode in California, the car is shown approaching a pedestrian crossing when a person steps on to it from the opposite side of the road.  The Tesla detects the pedestrian, but elects to continue through the crossing without stopping (presumably because the pedestrian was not on their side of the road).</p>
<p>Various comments to that article state that what the Tesla did was illegal.  But in my various googling attempts, I have not found any source that definitely states that the car <em>has</em> to stop.  For example, the <a href="https://www.dmv.ca.gov/portal/handbook/california-driver-handbook/laws-and-rules-of-the-road/" rel="noreferrer">CA DMV Drivers handbook</a> says:</p>
<blockquote>
<p>When there is a pedestrian crossing a roadway with or without a


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<blockquote>
<p>When there is a pedestrian crossing a roadway with or without a
crosswalk, you must use caution, reduce your speed, or stop to allow
the pedestrian to safely finish crossing.</p>
</blockquote>
<p>The use of &quot;or&quot; here seems to imply that stopping is optional (of course I assume that means only if you have taken due care/caution)</p>
<p>But some of the commentators quote this from the same DMV handbook:</p>
<blockquote>
<p>Pedestrians have the right-of-way in marked or unmarked crosswalks. If
there is a limit line before the crosswalk, stop at the limit line and
allow pedestrians to cross the street.</p>
</blockquote>
<p>And take it to imply that the Tesla should have stopped because the crossing does have a &quot;limit line&quot;.</p>
<p>My question is pretty simple.  Did the Tesla break an actual law in California? Or is it simply a dick move that technically is not illegal?</p>


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<p>My question is pretty simple.  Did the Tesla break an actual law in California? Or is it simply a dick move that technically is not illegal?</p>
<p>Given the specificity of this video, I'm only really looking for answers that relate to California.  I know that in other jurisdictions in the US and in other countries there may be other definitions of legality - which does make producing generic software for an automated car rather complex.</p>


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Answer 1: <p>I am aware of a view of the California law that if a pedestrian looks like they might want to cross the street, any car must stop, but this is not supported by the law, which is about &quot;yielding&quot;. The law incorporates both &quot;yield&quot; and &quot;stop&quot;, the former being &quot;and allow the other person to proceed&quot;.
Ignoring the photo for a moment, the requirement to yield (not stop) allows a car to continue driving when the driver is e.g. 10 ft from the crosswalk and the pedestrian is three lanes over when they enter the crosswalk, remaining in compliance with the law. The pedestrian and the driven can continue with their journey because there is no conflict.</p>


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<p>The requirement to yield states whose right to proceed is subordinated to the other person's, in case of conflict. Turning to the video which shows what is in front but not behind, it is evident that the vehicle did not actually conflict with the pedestrian, who did not slow down in order to let the vehicle pass. The violation of social conventions is clear, in that the pedestrian enters the crosswalk while the car is 5 or so car lengths back, and can safely slow down so that there would be zero chance of hitting the pedestrian (it starts to slow but only trivially one the pedestrian is visibly 'crossing the street'). As far as I can determine, California case law has not established any numbers that constitute &quot;not yielding&quot;. While I would stop in this circumstance, I don't see that there is a conflict between the pedestrian and the vehicle.</p>


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Question Title: How can Crabs Adjust Humidity be legal?

Question Body: <p><a href="http://crabsadjusthumidity.com/" rel="noreferrer">Crabs Adjust Humidity</a> is, as its makers describe it, "a crappy little third-party, unofficial, unauthorized expansion card set" for the wildly-popular game known as <a href="https://www.cardsagainsthumanity.com/" rel="noreferrer">Cards Against Humanity</a>.</p>

<p>Personally, I love the idea. I don't have the expansions myself yet, but I think it's great that people can create things like this to even further expand a game that I thoroughly enjoy. (Further, that is, beyond the existing, official 6 major expansions and dozen or so minor booster packs.)</p>

<p>However, I am also wondering a bit as to how they can legally do what they're doing.</p>


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<p>However, I am also wondering a bit as to how they can legally do what they're doing.</p>

<p>Presumably, this is facilitated by the fact that Cards Against Humanity uses an unusually-permissive license for a commercially-sold product of its sort. The game, and all official expansions, are under a <a href="https://creativecommons.org/" rel="noreferrer">Creative Commons</a> license which allows other people to do a number of things that they wouldn't be able to do under the typical copyright licenses attached other works.</p>

<p>In particular, without needing to pay royalties or obtain special permission, other people can:</p>

<ul>
<li>Copy and redistribute Cards Against Humanity as-is.</li>
<li>Make and distribute derivative works that are based upon, and may even partially or fully include, Cards Against Humanity.</li>
</ul>


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<p>However, the particular license used for Cards Against Humanity is <a href="https://creativecommons.org/licenses/by-nc-sa/2.0/" rel="noreferrer">CC BY-NC-SA 2.0</a>. This puts the following restrictions upon sharing and re-use of Cards Against Humanity:</p>

<ul>
<li><p><strong>Attribution (BY):</strong> Appropriate credit must be given to Cards Against Humanity LLC, and changes from the original work must be noted. This should not imply any endorsement by Cards Against Humanity LLC.</p></li>
<li><p><strong>Non-Commercial (NC):</strong> Any copies of Cards Against Humanity, or derivative works, are not to be used for commercial purposes (e.g.: sold) without permission of Cards Against Humanity LLC.</p></li>
<li><p><strong>Share Alike (SA):</strong> All copies of Cards Against Humanity, or derivative works, must use the CC BY-NC-SA license or another <a href="https://creativecommons.org/compatiblelicenses/" rel="noreferrer">Compatible License</a>.</p></li>
</ul>


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<p>Crabs Adjust Humidity clearly meets the BY requirement. They mention several times over on the site that their expansions are not official and they are in no way affiliated with Cards Against Humanity LLC. A notice on their website even specifically states that it is <em>not</em> the Cards Against Humanity website, provides a link to the official Cards Against Humanity site, and encourages people to "Go there and buy it now. We'll wait. Get all of the official expansions, too. They rock.".</p>

<p>The NC requirement is where they most obviously appear to fall short. Crabs Adjust Humidity is being sold, both directly from their own website as well as through other vendors. (Personally, I first discovered the products by seeing them on a shelf at my favorite local gaming store.) Each individual expansion (each containing 112 cards) costs $14 USD, with a boxed set of all 5 for $50 USD ($10 per expansion/$4 off each pack/$20 off the set).</p>


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<p>For comparison, Cards Against Humanity sells their main game (550 cards) for $25, major expansions (100 cards each) for $10 each, and smaller expansions for varying prices. There is no official boxed set for Cards Against Humanity. (The Bigger, Blacker Box is - mostly - just a box.)</p>

<p>So, Crabs Adjust Humidity expansions are being sold at about a 25% higher per-card cost than the official major expansions. When you compare the boxed set of Crabs Adjust Humidity to the official main game, the former has a nearly-double per-card price. (Arguably, this isn't an "apples-to-apples" comparison.<code>*</code> But it was a lot simpler than trying to differentiate costs between Black Cards and White Cards.)</p>


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<p>Crabs Adjust Humidity also seems to fall afoul of the SA requirement, as the product (as seen on their <a href="http://www.crabsadjusthumidity.com/Counterfeit-Crabs_ep_42.html" rel="noreferrer">Counterfeit Crabs</a> page) and the website have the standard "copyright ... All Rights Reserved" notices. Thus Crabs Adjust Humidity cannot be handled per CC BY-NC-SA, as the license on Cards Against Humanity would seem to require.</p>

<p>Of course, infringement upon copyright (whether actual or simply perceived) tends to not carry consequences unless the copyright holder chooses to pursue them. However, it seems that the creators of Crabs Adjust Humidity (and, as I've discovered while writing this post, about a half-dozen other companies) have chosen to make and publicly sell these works in seeming violation of the CC BY-NC-SA license without much fear of such recourse.</p>


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<p>Is this all really legally defensible, or are these products only surviving because Cards Against Humanity LLC has not yet chosen to take action against them?</p>

<p><code>*</code><em>Pun not originally intended, but now it totally is.</em></p>


Answer 1: <p>The "Crabs" game can be legal if it is seen as a form of <a href="http://literarydevices.net/parody/" rel="noreferrer">parody</a>. That is one of the forms of <a href="http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/" rel="noreferrer">"fair use"</a> that allows copying (within limits). This is to allow the use of limited amounts of copying for critical or "mocking" pieces, which are considered a form of free speech.</p>


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<p>Two other issues come into play under "fair use." The first is whether or not this is "commercial" (yes) or non-commercial (e.g educational) use. That is mildly negative for "Crabs" but by no means dispositive. The second is the likely market impact, whether the new use tends to compete with the old use in its "home" market, or whether it is likely to open a new market of a very different, perhaps "opposite" audience that might later buy the original as a "crossover."</p>

<p>The "Crabs" game seems to address the "green" or at least "pro animal" (PETA) market. If the defendant can show that the "Cards" market addresses e..g., your "inner Nazi," making it "opposite," that would be ideal. It would be less convincing if "Cards" were addressing e.g. human rights, because that might be seen to overlap with the green market in terms of social conscience.</p>


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Answer 2: <p>I don't think we have any way of knowing how or why the crabs haven't been cooked. <a href="http://www.opensourcejahrbuch.de/download/jb2006/chapter_06/osjb2006-06-02-en-moeller.pdf" rel="nofollow">This article</a> is critical of the NC license. The relevant language in <a href="https://creativecommons.org/licenses/by-nc-sa/4.0/legalcode" rel="nofollow">the license</a> says:</p>

<blockquote>
  <p>NonCommercial means not primarily intended for or directed towards
  commercial advantage or monetary compensation. For purposes of this
  Public License, the exchange of the Licensed Material for other
  material subject to Copyright and Similar Rights by digital
  file-sharing or similar means is NonCommercial provided there is no
  payment of monetary compensation in connection with the exchange.</p>
</blockquote>


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<p>A literal reading of the license terms would mean that you cannot take a journal article (for example) to a copy shop to make a copy, unless the shop makes all copies of NC materials for free. The terms do not say anything about profit: it requires there to be <strong>no payment of monetary compensation in connection with the exchange</strong>. </p>

<p>It is not clear to me that there is any potential copyright issue here. You can't copyright the idea of a smart-ass card game, and it is not evident that there is any actual copying of the original material. They do not seem to be actually selling copies of the original cards, so no clear issue of infringement.</p>


Answer 3: <p>It seems they did get into legal trouble with Cards Against Humanity, relating to the trademark, from this hearing from October 9, 2018:
<a href="https://ttabvue.uspto.gov/ttabvue/ttabvue-91225576-OPP-66.pdf" rel="nofollow noreferrer">https://ttabvue.uspto.gov/ttabvue/ttabvue-91225576-OPP-66.pdf</a></p>


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Question Title: If you try to charge someone for something and it doesn&#39;t stick, can a less severe charge be made as a follow-up?

Question Body: <p>Say Mark is charged with A (let's say Murder), but the charges don't stick because e.g. he didn't do it on purpose. Can Mark then charged as a follow-up for B (e.g. involuntary manslaughter)? Or does getting exonerated from A mean you can't keep charging him with lesser crimes like B until something sticks? And if you can charge him with B, does that mean you have to do a whole nother trial?</p>


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Answer 1: <p>It depends on what you mean by &quot;doesn't stick.&quot;  If Mark is acquitted of murder in state court, he can't be tried again in state court for the same act of homicide.  If the charges are dropped or dismissed without prejudice before jeopardy &quot;attaches&quot; then Mark can be charged again and tried for manslaughter or even murder.</p>
<p>From <a href="https://en.wikipedia.org/wiki/Double_jeopardy" rel="noreferrer">Wikipedia</a>:</p>
<blockquote>
<p>The Double Jeopardy clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment.  Jeopardy &quot;attaches&quot; when the jury is impanelled, the first witness is sworn, or a plea is accepted.</p>
</blockquote>


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</blockquote>
<p>Any lesser crimes that could be charged for the same act (or acts) are instead considered concurrently with the main charge (or charges) at the original trial.  See <a href="https://en.wikipedia.org/wiki/Lesser_included_offense" rel="noreferrer">lesser included offense at Wikipedia</a>.</p>
<blockquote>
<p>And if you can charge him with B, does that mean you have to do a whole nother trial?</p>
</blockquote>
<p>Yes.  If you can charge Mark again, this means that jeopardy did not attach.  In this case, if a new charge is to be brought, the entire process starts again from the beginning.</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><a href="https://laws-lois.justice.gc.ca/eng/acts/c-46/section-662.html" rel="noreferrer"><em>Criminal Code</em>, s. 662</a> provides that the accused is at jeopardy of all lesser included offences that are subsumed within the offence charged or as described in the count.</p>
<blockquote>
<p>An offence is “included” if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself.</p>
<p>(<em>R. v. G.R.</em>, <a href="https://canlii.ca/t/1l6wm#par25" rel="noreferrer">2005 SCC 45, paragraph 25</a>)</p>
</blockquote>


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<p>(<em>R. v. G.R.</em>, <a href="https://canlii.ca/t/1l6wm#par25" rel="noreferrer">2005 SCC 45, paragraph 25</a>)</p>
</blockquote>
<p>Where the accused was at jeopardy of a conviction on a lesser included offence, the principle against double jeopardy (specifically, <em>autrefois acquit</em>) precludes a subsequent prosecution on that lesser included offence.</p>


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Answer 3: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p>The CPS offers <a href="https://www.cps.gov.uk/legal-guidance/retrial-serious-offences#:%7E:text=The%20rule%20against%20double%20jeopardy,retrial%20section%2075(3)." rel="noreferrer">guidance on this</a>. You can't be retried for a lesser or more serious offence unless &quot;<em>new and compelling</em>&quot; evidence comes to light.</p>
<p>Under normal circumstances they get one bite of the cherry.</p>
<blockquote>
<p><strong>Retrial of Serious Offences</strong></p>


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<p>Under normal circumstances they get one bite of the cherry.</p>
<blockquote>
<p><strong>Retrial of Serious Offences</strong></p>
<p><em><strong>If a person was acquitted of a qualifying offence</strong> within section 75 (1)</em> [of the <a href="https://www.legislation.gov.uk/ukpga/2003/44#:%7E:text=time%20to%20time.-,Section%2075,-SCHEDULE%205" rel="noreferrer">Criminal Justice Act (2003)</a>]
<em>then <strong>that person is treated as also having been acquitted of any
alternative offence which is itself a qualifying offence</strong>, i.e. an
offence of which he or she could have been convicted in those
proceedings because of the offence being charged in the indictment...</em></p>
</blockquote>


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Answer 4: <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>The defendant cannot be put on trial twice for the same crime*. But the judge can <em>derubricare</em> the crime, which is a technical term to say that the judge can reduce the charge.</p>
<p>[*] After the first degree the prosecutor could challenge the verdict and trigger a second degree trial, but that would be something different.</p>


Tags: united-states, criminal-law, trial, double-jeopardy, prosecution


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Question Body: <p><a href="https://www.theguardian.com/environment/2023/apr/15/uk-families-threats-police-warnings-children-playing-in-street" rel="noreferrer">It is being reported</a> that claims are made that is can be against the law for children to play in the street.</p>
<blockquote>
<p>Liz Swift thought a basketball hoop on wheels pushed to the corner of her street on sunny afternoons would be a great way to keep her 13-year-old active. But the local authority did not agree. The family received letters from Waltham Forest council warning them that children playing in the street were “causing a nuisance to neighbours”.</p>
<p>She said: “The council told me they were breaking the law with their games because they were obstructing the highway. They always move out of the way for cars and they are never out after dark.”</p>


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<p>Then in February, said Swift, the police arrived to investigate a report about her children playing. “The police took no action when they saw what was happening but the council asbo team are insistent the children can’t play there. They even came to examine a wall after a ball went over it, telling me it was unacceptable.</p>
</blockquote>
<p>I find such a claim implausible, considering the large amount of my childhood that was spent playing in the street with no legal problems.  Is there any law that could prohibit children playing in the street?</p>


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Answer 1: <p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p><a href="https://www.legislation.gov.uk/ukpga/1980/66/section/161" rel="nofollow noreferrer">s161 Penalties for causing certain kinds of danger or annoyance, Highways Act 1980</a></p>
<blockquote>
<p>... (3) If a person plays at football or any other game on a highway to the
annoyance of a user of the highway he is guilty of an offence and
liable to a fine not exceeding [F3 level 1 on the standard scale]. ...</p>
</blockquote>
<p>(See also the <a href="https://www.legislation.gov.uk/ukpga/1980/66/part/IX/crossheading/obstruction-of-highways-and-streets" rel="nofollow noreferrer">s137 offence of wilful obstruction</a>.)</p>
<p>Some places may also have their own related bylaws, e.g.</p>


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<p>Some places may also have their own related bylaws, e.g.</p>
<blockquote>
<p>No person shall on any land adjoining a street play any game in a
manner likely to cause obstruction to any traffic or to cause danger
to any person in such a street</p>
</blockquote>
<p>Made under <a href="https://www.legislation.gov.uk/ukpga/1972/70/section/235" rel="nofollow noreferrer">s235 of the Local Government Act 1972</a>, for the prevention and suppression of nuisances.</p>


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<p>Traveling further back in time, the <a href="https://www.legislation.gov.uk/ukpga/Will4/5-6/50/section/LXXII/enacted" rel="nofollow noreferrer">Highway Act 1835</a> provided for penalties on persons who &quot;play at Football or any other Game on any Part of the said Highways, to the Annoyance of any Passenger or Passengers&quot; and, in London, the <a href="https://www.legislation.gov.uk/ukpga/Vict/2-3/47/section/LIV/enacted" rel="nofollow noreferrer">Metropolitan Police Act 1839</a> similarly made it an offence to &quot;any Kite or play at any Game to the Annoyance of the Inhabitants or Passengers, or who shall make or use any Slide upon Ice or Snow in any Street or other Thoroughfare, to the common Danger of the Passengers.&quot;</p>
<blockquote>
<p>I find such a claim implausible, considering the large amount of my childhood that was spent playing in the street with no legal problems.</p>
</blockquote>


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<blockquote>
<p>I find such a claim implausible, considering the large amount of my childhood that was spent playing in the street with no legal problems.</p>
</blockquote>
<p>It seems possible that the authorities turned a blind eye or your behaviour didn't come to their attention, or your street was designated as a 'play street' (introduced by the Street Playgrounds Act 1938, currently provided for by <a href="https://www.legislation.gov.uk/ukpga/1984/27/part/III/crossheading/street-playgrounds" rel="nofollow noreferrer">sections 29 to 31 of the Road Traffic Regulation Act 1984</a> as amended by the New Roads and Street Works Act 1991). Also, many alleged offenders might be younger than the criminal age of responsibility.</p>


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<p>According to <a href="https://hansard.millbanksystems.com/commons/1860/apr/20/observations" rel="nofollow noreferrer">TJ Miller MP (Colchester) in Hansard, speaking in 1860</a>, in 1859 44 of London's children were sent to prison for playing games in the streets, and by April 1860 25 had been sent to prison - apparently Manchester had imprisoned none.</p>
<p>In my youth we played in the street although we didn't put up basketball hoops, football goals or other such objects. These stories in the media seem to be rare and involve circumstances where the local authority received too many complaints, particularly when there is damage to homes, cars or flowerbeds - which may amount to criminal damage.</p>
<p><a href="http://news.bbc.co.uk/2/hi/uk_news/england/manchester/4965136.stm" rel="nofollow noreferrer">Blackpool in 2006</a></p>


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<p><a href="http://news.bbc.co.uk/2/hi/uk_news/england/manchester/4965136.stm" rel="nofollow noreferrer">Blackpool in 2006</a></p>
<p><a href="https://www.dailymail.co.uk/news/article-458961/Parents-face-100-fine-children-play-football-street.html" rel="nofollow noreferrer">Glenfield area of Leicester, 2007</a></p>
<p><a href="https://www.dailymail.co.uk/news/article-1045667/Council-bosses-threaten-children-prosecution--playing-football-street.html" rel="nofollow noreferrer">Newark, Nottinghamshire, 2008</a></p>
<p><a href="https://www.dailymail.co.uk/news/article-1313917/A-sledgehammer-crack-nut-Three-police-officers-patrol-car-rush--children-playing-football-street.html" rel="nofollow noreferrer">Manchester, 2010</a> - although this seems to be based on one complaint</p>


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<p><sup>Hat-tip <a href="https://pedestrianliberation.org/2012/07/25/play-streets/" rel="nofollow noreferrer">Pedestrian Liberation</a> for the information about the older legislation and arrests of children.</sup></p>


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Question Title: can states interpret an international law however they want?

Question Body: <p>can they even interpret it to effectively negate the rule of not using domestic law as a justification for non fullfilment of obligations by interpreting the treaty in a way that suits them ?</p>


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Answer 1: <p>There is a lot behind the word &quot;can&quot; in your question. If you are simply asking whether states have the sovereign power to interpret international law however they want, then sure. But they might be wrong (thereby leaving themselves in violation of the treaty they are failing to implement), and if they are intentionally doing so to avoid fulfilment of international obligations, then this is itself a violation of international law. States must take actions in good faith towards implementing treaties in their domestic law. See <a href="https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf" rel="nofollow noreferrer">Articles 26 and 27 of the <em>Vienna Convention</em></a>.</p>
<p>See also: <a href="https://law.stackexchange.com/questions/87955/what-gives-rise-to-binding-obligations-at-international-law/87956#87956">What gives rise to binding obligations at international law?</a></p>


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Answer 2: <p>A nation can interpret its treaty obligations however it wants. If it is wrong in its interpretation, the nation might be sued which could end up being somehow penalized for a wrongful action based on an incorrect interpretation. Whether they can get away with it depends on who is going to enforce that law.</p>


Tags: international, treaty


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Question Body: <p>Alice repeatedly commits some tortious act against Bob (say, defamation, or copyright infringement, or breach of contract).  Under the principle of mitigation, Bob must take reasonable action to minimize the amount of harm or loss he suffers.  That is, once he becomes aware of Alice's tortious activity, he cannot simply allow it to continue with the intention of accumulating loss and suing her for a much greater amount in the future.</p>


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<p>However, consider the situation in which Bob is not yet aware of Alice's tortious activity, but an uninvolved third party, Charles, does become aware of it.  As I understand it, as a third party, Charles would generally have no legal obligation to minimize Bob's losses.  But what if Charles intends to report Alice's activity to Bob in hopes of receiving a reward from Bob?  (Note the wording &quot;hopes&quot; here; Charles would freely turn over his evidence to Bob without <em>demanding</em> anything in exchange.)  Charles supposes that <em>if</em> Bob indeed offers a reward, then it will be proportional to Bob's losses.  Can Charles delay reporting Alice's tortious activity with the expectation that she will repeat or continue it, thus causing Bob further loss, and thus increasing the expected value of the reward from Bob?  If Charles does so delay his report, then does Bob (or indeed Alice, in the event Bob sues her) have a claim against Charles for the losses Bob incurred after


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expected value of the reward from Bob?  If Charles does so delay his report, then does Bob (or indeed Alice, in the event Bob sues her) have a claim against Charles for the losses Bob incurred after Charles first became aware of Alice's tortious activity?</p>


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<p>(This question arises from reports I have heard that certain law firms in Germany are proactively gathering evidence of serial copyright infringement and then presenting this evidence to the copyright holders in hopes that those copyright holders will retain the law firms to sue the infringers for damages.  I don't know or care whether these reports are actually true, though I am interested in knowing about the legality of this general sort of scenario, for any sort of tort in any jurisdiction.)</p>


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Answer 1: <p>Given that Bob has no obligation to pay anything to Charles, who has no legal duty to do anything, I don't see how Charles could have liability to Bob. If Charles wants to, he can decline to pay a reward to Bob or can pay an amount smaller than Charles hoped for as a reflection of Charles' delay.</p>


Tags: civil-law, tort, damage-mitigation


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Question Title: State tax domestication

Question Body: <p>With any judgement the judgement has to be domesticated in the jurisdiction you are trying to enforce it in. So for example, I owe taxes in California.</p>
<p>Now, California has a levy on my account, in a bank in California (California routing number but the bank is in new york). Now, I have another account at a bank branch in Nevada at a different bank.</p>
<p>In order to levy my Nevada account, can California &quot;get it for free&quot; with their existing judgement, or do they have to domesticate the judgement in Nevada and then serve the levy?</p>


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Answer 1: <h2>No</h2>
<p>The <a href="https://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause" rel="nofollow noreferrer">full faith and credit clause</a> of the Constitution mean that a judgement in one state is enforcable everywhere in the USA.</p>
<p>To enforce the judgement against a foreign asset, you would have to take the California judgement to the foreign court and ask them to enforce it - which is normally allowed.</p>


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Answer 2: <p>A judgment creditor collects money from bank accounts using what is called a writ of garnishment.</p>
<p>This is because (1) a writ of garnishment is a court order directing someone who owes a judgment debtor money or property to turn that money or property over to the judgment creditor instead, and (2) a bank deposit in a bank account is technically a debt that the bank owes to the bank account owner.</p>


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<p>If the bank has branches in both California and Nevada, a writ of garnishment issued based upon the California judgment can be presented to the bank in which you have an account and be directed to pay the money over to the California judgment creditor. Whether this is possible depends upon whether the bank in California where the writ of garnishment is served is the same entity as the bank in Nevada where the customer/judgment debtor has an account. Writs of garnishment are served upon &quot;persons&quot; (natural or legal), not upon accounts or bank branches. If the person upon whom the writ of garnishment needs to be served can be served with process and subjected to the jurisdiction of the California courts, it doesn't need to go to Nevada.</p>


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<p>If the bank at which the funds are deposited in Nevada does not have a branch in California, then the California judgment creditor has the &quot;register&quot; the California judgment in Nevada at which point it becomes also a Nevada judgment and can be enforced as a Nevada judgment with a Nevada writ of garnishment at that point. The registration is ministerial and merely requires filing of a one page form, a certified copy of the California judgment, and a filing fee. This would be done pursuant to the Nevada Enforcement of Foreign Judgments Act (Nevada Revised Statutes §§ <a href="https://www.leg.state.nv.us/nrs/nrs-017.html" rel="nofollow noreferrer">17.330 to 17.400</a>).</p>


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<p>Finally, it is worth noting that a slightly different state court process is usually used in state tax cases than in non-tax cases. Often, rather than litigating a case to judgment in court, what happens is that the state taxing authority files what is called a &quot;distraint warrant&quot; in a state court of general jurisdiction, which is effectively a registration of a judgment entered in the state's administrative tax debt process in a court for purposes of collection as a money judgment through the state court process. Like a judgment registration in another state, this is generally a ministerial process (usually without even a filing fee for the state taxing authority), that isn't actively litigated and can be done without notice having to be served upon the tax debtor. Unfortunately, however, due to the fact that this is such a summary procedure, scammer often issue fake distraint warrants and try to collect them from unsuspecting scam victim.</p>


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Question Title: Use of copyrighted material for creating a commercial product

Question Body: <p>In a hypothetical scenario, Mr. Peter writes a book about tree types in a certain geographical area. He creates a commercial products. Can he use another commercial product that is copyrighted, e.g. a map of a location (the map is a political map and has nothing to do with trees), for his tree research purposes, if such a map won't be part of the book he works on?</p>
<p>jurisdiction: EU country</p>


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Answer 1: <blockquote>
<p>Can he use another commercial product that is copyrighted, e.g. a map
of a location (the map is a political map and has nothing to do with
trees), for his tree research purposes, if such a map won't be part of
the book he works on?</p>
</blockquote>
<p>Yes.</p>
<p>Copyright protects particular expressions of ideas and knowledge, not the ideas and knowledge themselves.</p>
<p>Using a map for research purposes when the map or a modified version of it does not appear in the final work does not make the final work a &quot;derivative work&quot; covered by copyright.</p>


Tags: copyright


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Question Title: Car and Med Insurance?

Question Body: <p>If somebody were to get into a bad car accident, the med costs can rack up, and it'd be best to have insurance burgeon a portion of the debt.  But let's say that due to financial straits, said person figured suicide in such a scenario so as to escape debt and the bill.  But what happens if he/she survived and unconsciously underwent ER?  Then if he/she suicided, there would normally be the debt from the operation.  If he/she suicided, then perhaps friends or family would have to inherit the debt? - in which case, all of this seems like an awkward debt generation hole in the economy.  Is there law or insurance policy compensating for this?</p>


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Answer 1: <p>Any debts that a person has are to be paid by their estate. Whoever administers the estate must, in all states, publish an announcement to the effect that Smith is deceased and all claims must be made by such and such date, probably within 90 days. If (this is a small if) the hospital takes 6 months to make their claim, it is too late for them (provided that notice was properly given).</p>
<p>There are also limits on how much can be collected, the simplest case being that you can't collect more than what is in the estate. There can also be complexities regarding order of priority – as you would expect, you must pay debts to the government first. That could include the Medicaid clawback (officially &quot;estate recovery&quot;), however, in the circumstance that you describe it doesn't sound like that would be applicable.


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There may also be exemptions in a state, for example in Florida, your registered homestead (property of a certain size that you have been living in and have filed the paperwork for) cannot be seized to pay debts, even after death.</p>


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Question Body: <p>I wanted to use a school logo on my website. This is an <a href="https://en.wikipedia.org/wiki/Sydney_Grammar_School#/media/File:Sydney_Grammar_School_Logo.png" rel="nofollow noreferrer">example of one</a> (which is a private school) and <a href="https://en.wikipedia.org/wiki/File:North_Sydney_Girls_High_logo.jpg" rel="nofollow noreferrer">here is another</a> (a public school).</p>
<p>Wikipedia says that they are both no longer in copyright. But when on the government <a href="https://education.nsw.gov.au/about-us/copyright" rel="nofollow noreferrer">website</a>, it says this about the copyright:</p>
<blockquote>
<p>Material on this website not available under a Creative Commons
licence includes:</p>
<ul>
<li>the Department of Education logo, other logos and trademark-protected material</li>
</ul>
</blockquote>


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licence includes:</p>
<ul>
<li>the Department of Education logo, other logos and trademark-protected material</li>
</ul>
</blockquote>
<p>Is this statement the Department of Education made true? It seems to me that the copyright has indeed expired. Is the Department of Education just making a blanket statement that may not be true if the logo is very old?</p>


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Answer 1: <p>I can see two points you might be confused about in your question.</p>
<h3>1. Works can be in the public domain without having a CC license</h3>
<p>The Wikipedia statement and the government statement are not inconsistent with each other;  just because something isn't available under a Creative Commons license doesn't necessarily mean that it is restricted by copyright.  In fact, <a href="https://wiki.creativecommons.org/wiki/public_domain" rel="nofollow noreferrer">CC licenses are moot for material in the public domain:</a></p>
<blockquote>
<p>When a work is in the public domain, it is free for use by anyone for any purpose without restriction under copyright law. Public domain is the purest form of open/free, since no one owns or controls the material in any way. ... Creative Commons licenses do not affect the status of a work that is in the public domain under applicable law, because our licenses only apply to works that are protected by copyright.</p>
</blockquote>


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</blockquote>
<p>So if a work is in the public domain, you can use it for whatever purpose you wish (though see below), without restriction or attribution.  This is less restrictive than the various Creative Commons licenses, which require various levels of attribution, non-modification, etc. depending on the license chosen by the creator.</p>
<h3>2. Trademark protections are separate from copyright protections</h3>
<p>Your quote from the government website implies that these logos might be trademarked, even if they're not under copyright;  this is entirely possible.  Roughly speaking, trademark protections keep other people from trading on your good name &amp; reputation; copyright protections keep other people from directly profiting from your creative endeavors.</p>


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<p>If another party creates a product that uses a trademark in a way that would create confusion among consumers, the trademark holder can sue for that.  Depending on how you use the logos, you might run afoul of these protections.  See <a href="https://law.stackexchange.com/questions/74218/">this Q&amp;A for futher details under US law.</a> (Australian law may differ a bit but I would expect that the general principles are the same.)</p>


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Question Title: is mistake of fact a defence in various laws relating to protected classes?

Question Body: <p>If a law for example criminalises intimidating or assaulting someone who suffers from dwarfism , if the person doesn't know that the person is suffering from dwarfism or what dwarfism is but makes fun of the person anyway , would they still be liable ?</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>You have tagged this 'criminal law', so I will stick to that, and avoid non-criminal anti-discrimination regimes.</p>
<p><em>Criminal Code</em>, s. 319 makes it an offence to wilfully incite or promote hatred against an identifiable group.</p>
<p>It does not matter whether the person that is being communicated to is a member of the identifiable group (meaning &quot;any section of the public distinguished by colour, race, religion or ethnic origin&quot;). What matters is a strict <em>mens rea</em> requirement that the communication was done with the <em>intent</em> of promoting or inciting hatred <em>against</em> such a group.</p>


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<p>If the accused holds such intent, it is no defence that they mistook the person they were communicating with as not being a member of such a group.</p>
<p>See generally, <em>R. v. Keegstra</em>, [1990] 3 SCR 697.</p>
<h3>Hypothetical laws</h3>
<p>If instead you are asking about what a hypothetical law <em>could</em> require (since you ask, &quot;If a law for example criminalises intimidating or assaulting someone who suffers from dwarfism...&quot;), then as a matter of statutory interpretation, the law could be written in a way that makes the mistake you describe a defence or it could be written in a way that does not allow that defence.</p>
<p>E.g. &quot;Any person who assaults another, knowing that the other person is X, commits an offence...&quot; This phrasing of the law clearly would require the accused to know that the person they have assaulted is in the category X in order for the assault to fall within this specific variant of assault.</p>


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<p>E.g. &quot;Any person who assaults a person that is X, regardless of whether they know the other person to be X, commits an offence...&quot; Under this phrasing of the law, knowledge of the status of the target of the assault clearly does not matter.</p>
<p>However, Canadian law has constitutional minimum <em>mens rea</em> requirements for elements of crimes that bring risk of imprisonment. If the offence is punishable by imprisonment, then the variant that essentially removes the <em>mens rea</em> from the element relating to the target's status would be unconstitutional.</p>


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Answer 2: <h2>Intimidating or assaulting <em>anyone</em> is against the law</h2>
<p>It doesn’t matter if they have a congenital genetic condition or not.</p>
<h2>Anti-discrimination laws aren't written that way</h2>
<p>They only apply in certain circumstances and they make discrimination on the basis of being or not being in a protected class unlawful. It doesn’t matter if the discriminated against individual is or is not; what matters is if the person doing the discrimination is doing it <em>on that basis</em>.</p>
<p>Outside of those circumstance, people are allowed to be as bigoted as they like - if you don’t want to hang around with people who have dwarfism, you do you.</p>
<h2>Perhaps you are thinking of anti-vilification law?</h2>


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<h2>Perhaps you are thinking of anti-vilification law?</h2>
<p>In some countries there are laws against vilifying certain groups. However, you are free to insult whoever you like - you just aren’t allowed to use insults about the group. Which means, practically, if you don’t know someone is in a particular group, why would you be using insults that target that particular group anyway? Just stick with the classics: <a href="https://www.youtube.com/watch?v=cAy4zULKFDU" rel="nofollow noreferrer">Your mother was a hamster, and your father stank of elderberries!</a></p>


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Answer 3: <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> <strong>Yes</strong></p>
<p>All criminal and civil statutes relating to protected classes use a similar wording of <em>vrai ou supposé</em> (actual or assumed). <a href="https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006070719/LEGISCTA000006165460/" rel="nofollow noreferrer">Example</a></p>
<blockquote>
<p>La provocation non publique à la discrimination, à la haine ou à la violence à l'égard d'une personne ou d'un groupe de personnes à raison de leur origine ou de leur appartenance ou de leur non-appartenance, <strong>vraie ou supposée</strong>, à une ethnie, une nation, une prétendue race ou une religion déterminée est punie de (...)</p>
</blockquote>
<blockquote>


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</blockquote>
<blockquote>
<p>Non-public inciting discrimination, hatred or violence against a person or group of persons because of their origin, belonging or non-belonging, <strong>actual or assumed</strong>, in a given ethnic group, nation, so-called race, or religion, is punished by (...)</p>
</blockquote>
<p>For instance, many people are prosecuted for actions where racist motive is an aggravating factor. Let’s say the defendant in an assault case posted a photo on Facebook with the label &quot;all Arabs are thieves, I made this one pay for the others&quot;. That is the clearest evidence the prosecutor could hope for, even if that assertion is clearly mistaken. Obviously it is not true that all Arabs are thieves; furthermore, it might be that the victim is not Arab (they attacked a darker-skin individual, without caring to check if they spoke Arabic, abstained from drinking alcohol, etc. - &quot;Arab&quot; is a cultural characteristic, not a skin tone).</p>


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<p><em>Discussing the &quot;so-called race&quot; wording would take an offtopic deep dive into how mainstream French culture perceives race/ethnicity compared to the UK or US. <a href="https://casdinteret.com/2020/06/racism-in-france-what-most-americans-dont-know/" rel="nofollow noreferrer">That link</a> gives a rather good accounting for a general audience (even if some nuance is lost to simplification).</em></p>


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Answer 4: <p>U.S.</p>
<p>In the U.S., merely making fun of someone is not a crime, though it can be considered insensitive.  Therefore, whether mistaken or not, merely mocking someone is not a crime.</p>


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<p>Instead, if you commit a crime against a person, and it can be proven that your motivation in committing that crime was in part because of the victim's status as a member of a protected class led to the victim to be targeted by the criminal, than the criminal may be charged with a count of &quot;Hate Crime&quot; in addition to the ordinary crime or crimes that were charged.  The language of the law is also written to include the phrase &quot;perceived or otherwise&quot; to denote that the mistaken targeting of the victim for being a member of a protected class that the victim is in fact not is not a defense against a Hate Crime charge.  For example, following the events of 9/11 there was a spike in attacks against Sikh men largely due to the fact that most Adult Sihks wear Turbans and have large beards, both products of a tennent of the Sihk faith, which forbids men from ever cutting their hair.  In the U.S., a Turban and Beard are often associated with Arabic and Islamic culture


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have large beards, both products of a tennent of the Sihk faith, which forbids men from ever cutting their hair.  In the U.S., a Turban and Beard are often associated with Arabic and Islamic culture more than Sikhism, which is a much smaller religion from India and Pakistan.  This lead to Sikh men getting mistaken from Muslim men and assaulted for the actions of the Islamic based terrorists who masterminded the terrorist attacks.  When the perpetrators were arrested, they were charged with a hate crime, since it was clear the attacks were motivated by hatred against Muslims and Arab-Americans, despite the fact that the victims were neither Muslims nor were they Arabic.</p>


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<p>The protected classes in the U.S. under federal hate crime laws are defined as race, color, religion, national origin, ethnicity, gender, sexual orientation, gender identity, or disability as of 2009.  Dwarfism is a medical term that refers to a number of conditions that result in an adult human of any sex achieving a full grown height equal to or lesser than 4'10&quot; tall (147 cm) and typically is considered a disability, so would fall under a Hate Crime protection.  However, height, in and of itself, is not a protected class, so a 6'6&quot; (2 m) person attacking someone with medical dwarfism because his victim is smaller than him would not be a hate crime, since a person of average height would also be targeted.  It would have to be proven that the attacker was specifically targeting people for having dwarfism.</p>


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<p>It should also be noted that Hate Crime legislation is written in a way to be neutral to a particular protected class based on minority or majority status.  Because of this, a hate crime can occur against victim with white skin so long as the victim's skin color was the reason they were targeted. Additionally, a hate crime cannot occur if the crime targeted someone in part or wholly based on non-protected status.  For example, if a serial killer is targeting African-American Men who are overweight, then it is not a hate crime, since weight is not a protected class despite the other two categories being protected classes.  The U.S. also defines &quot;religion&quot; as a &quot;sincerely held belief&quot; and makes no legal requirements for consideration of whether one is practicing a valid religion beyond that (almost all legal definitions to classify religion are for tax purposes only.  No categorization requires observation of any particular doctrine.).</p>


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<p>It should also be noted that protected classes are expanded in matters such as civil laws.  Additionally, states and other law-making bodies may impose their own Hate Crimes laws, which can expand on the defined protected classes.  For example, in Washington D.C., protected status includes &quot;source of income&quot; which largely makes it a Hate Crime to target for crime someone because they work for a political organization (it doesn't have to but being the capitol and having protests frequently outside of the workplace of government agencies, the reason for this inclusion was in the minds of lawmakers when they included it.).</p>


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Question Title: Does art. 12(1) of the German Basic Law require students to be automatically graduated regardless of grades?

Question Body: <p>In <a href="https://academia.stackexchange.com/a/196256/152405">this post</a>, it notes that <a href="https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html" rel="nofollow noreferrer">art. 12(1) of the basic law</a> (the constitution) says:</p>
<blockquote>
<p>All Germans shall have the right freely to choose their occupation or profession, their place of work and their place of training. The practice of an occupation or profession may be regulated by or pursuant to a law.</p>
</blockquote>
<p>Has art. 12(1) been interpreted to require that all students should be automatically graduated regardless of grades?</p>


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Answer 1: <h1>No</h1>
<p>What it means is that no German can be forced by the government into a job, education or place of work. So for example, the Government cannot come and say &quot;we are short on railroad workers, the next 200 graduates of this school will report to Hamburg Station for training and become rail workers in Munich&quot;.</p>
<p>That might be blindingly obvious <em>today</em>, but when this was written, the government that had just ceased to exist had heavily dictated who was allowed into which profession, not on personal qualification, but on things like faith, nationality, heritage and skin color. And <em>other</em> governments forming from the ashes right next door were indeed not capitalistic and their socialist central planning meant that they would direct at least parts of their workforce which jobs to take and sometimes even where.</p>


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<p>In contrast, in Western Germany, whether or not one becomes a rail worker, which company educates them and where they work in the end is their choice.</p>
<p>Obviously choices are limited by reality. I can <em>choose</em> to be a railworker on an island in the North Sea, but I will be unemployed, because there is no rail line there and I won't get a permit to build my private one.</p>
<p>I can <em>choose</em> to study philosophy, but if I cannot find an employer in need of philosophers, I will have to fall back on making money driving an Uber.</p>


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<p>I can <em>choose</em> to study philosophy, but if I cannot find an employer in need of philosophers, I will have to fall back on making money driving an Uber.</p>
<p>I can <em>choose</em> to become a Pilot. But I will have a hard time finding a spare 747 to train on if I don't train with one of the big airlines. The may have their own, totally capitalistic goals. For example, contracts that say &quot;if we train you, you have to stay for X years and work for us or pay X amount of money&quot; are totally normal and legal in those businesses. And if their training center with the big 747 simulators is in city A, I can choose to train in city B, but I will obviously fail their program.</p>


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<p>So no, this law does not imply any kind of automatic success on a personal level. You still need to qualify for the training you want, be able to pay rent in the city you want to live in and find an employer that employs you, or customers to become a successful freelancer. Maybe you cannot do that for personal reasons. But the government will not dictate instead. You are then free to choose the next alternative.</p>


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Answer 2: <p>I don't think it can be interpreted that way, particularly due to the second sentence in your quote: <em>The practice of an occupation or profession may be regulated by a law.</em> And such laws (or at least articles) do exist, e.g. <a href="https://www.gesetze-im-internet.de/stgb/__132a.html" rel="noreferrer">§132a StGB</a> on the abuse of academic degrees. Whoever uses an academic title or certain professions (such as doctor or lawyer) without actually having such a degree risks a jail sentence.</p>
<p>Since such a law is (arguably) in line with the above article from the basic law, you can't name yourself lawyer without the relevant degree. And hence you cannot <em>be</em> a lawyer.</p>


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Answer 3: <h2>Hell no!</h2>
<p>The article you quote bans the government from banning a group of people from trying to achieve certain jobs. It was a direct answer to the Nuremberg Laws that the Nazis enacted to ban people of jewish faith from many professions.</p>
<p>In a similar fashion, it does not allow to order people to work or train in a specific job like mandating people to construct a new factory or making ammunition - another thing that reflects to the WW2 times in which <em>Zwangsarbeit</em> (forced labor) was common without a court's judgment. This ban from ordering specific jobs to be performed has two carve-outs: Mandatory civil or military service is on the Grundgesetz and not covered by this preclusion (and not used since about 2010 anyway) and neither is being drafted for community fire brigades where there are no volunteers. In fact, Both of these carve-outs are in the Basic Law: fire service (and similar) are under 12(2), Military service is in 12a.</p>


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<p>As a different type of carve out, technically 12(3) might allow to force convicted people to work in certain fields, but instead of forcing inmates to work, they are offered to work for benefits and pay, as that furthers the goal of resocializing and reintegrating the convicted into society.</p>
<p>Those demands to the politics however have nothing to do with the exams that regulate qualification to do certain jobs - and thus the argument that you <em>have to</em> get graduated fails. In fact, the fact that qualifications might be required is explicitly called out in the very paragraph: <em>The practice of an occupation or profession may be regulated</em></p>


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Answer 4: <p>As is the case so often — reflecting reality, after all! — there are <em>conflicting</em> basic rights. The one specifically conflicting here is <em>freedom of teaching</em> (&quot;Freiheit der Lehre&quot;), granted in <a href="https://www.gesetze-im-internet.de/gg/art_5.html" rel="nofollow noreferrer">Art. 5</a> Par. 3.</p>
<p>This Basic Law article's gist is to prevent the government from directly prescribing what is taught in universities, and in which way it is taught. This was, of course, a reaction to the <a href="https://de.wikipedia.org/wiki/Universit%C3%A4t_im_Nationalsozialismus#Rechtliche_Umgestaltung" rel="nofollow noreferrer">National Socialist interference with universities</a> after 1933.</p>


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<p>The result is that universities are free to decide, for example, how they grade students and whom they let graduate under which conditions; the &quot;only&quot; requirement is that it doesn't violate other provisions in the Basic Law, for example the equality of men and women guaranteed in <a href="https://www.gesetze-im-internet.de/gg/art_3.html" rel="nofollow noreferrer">Art. 3</a>. They certainly could decide to let everybody graduate, and some do: For example, the left-wing political science faculty of the <em>Freie Universität Berlin</em> where I happened to study in the 1980s was forced by the authorities to document the achievements of students who wanted to become publicly employed teachers. In an act of defiance, they tasked the checkroom attendant with the job: She had &quot;office hours&quot; at the counter of the checkroom of the <em>auditorium maximum</em> once a week. She had an official stamp she would use to approve of the self-assembled lists of courses a student


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hours&quot; at the counter of the checkroom of the <em>auditorium maximum</em> once a week. She had an official stamp she would use to approve of the self-assembled lists of courses a student had allegedly visited. Obviously, she had no means of verifying the veracity of those lists; that was the whole point.</p>


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<p>Other departments have stricter requirements for graduating; it is their respective prerogative.</p>


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Question Title: If a man is raped, resulting in pregnancy, and the woman chooses to carry the child to term, is the man still responsible for child support?


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Question Body: <p>Inspired by <a href="https://law.stackexchange.com/questions/79652/is-it-true-that-men-are-forced-to-pay-child-support-for-children-they-didnt-con">Is it true that men are forced to pay child support for children they didn't consent to have?</a></p>
<p>Let's say Alice rapes Bob and becomes pregnant. She then carries the child to term, against Bob's wishes. Can she then compel Bob to pay child support? Compared to the linked question, here Bob did not consent to sex.</p>
<p>ohwilleke's answer to the linked question says that if Bob rapes Alice and Alice carries the child to term, then she is required to care for the child. On the other hand, presumably Alice can choose to abort the child if she doesn't want to care for the child. In the case where Alice rapes Bob, Bob presumably can't compel Alice to terminate the pregnancy.</p>


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<p>Some Googling led me to <a href="https://en.wikipedia.org/wiki/Hermesmann_v._Seyer" rel="noreferrer">Hermesmann v. Seyer</a>, which asserts that in Kansas, &quot;a woman is entitled to sue the father of her child for child support even if conception occurred as a result of a criminal act committed by the woman&quot;. However, the text of the article seems to say that although Seyer (the man in the relationship) was underage and therefore incapable of providing consent under statutory rape law, he had actually given consent to the acts under civil law since he didn't complain to his parents. In the hypothetical scenario described above, Bob did not consent to the acts since he was raped.</p>
<p>I'm interested in all jurisdictions.</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;" rel="tag">united-states</a></p>
<p>The treatment of how paternity is handled in cases of rape, from which child support and child custody determinations flow, varies by U.S. state in the United States as a result of an ongoing and recent wave of legislative innovation, prompted by cases in which convicted male rapists sought child custody in connection with children conceived in acts of rape for which they were convicted. A state by state summary of the applicable laws as of January 2020 (which oversimplifies the situation in which there are additional distinctions not noted, some of which are differences in wording that could be relevant to how these statutes apply in the OP case) can be found <a href="https://www.mylifetime.com/movies/you-cant-take-my-daughter/articles/how-parental-rights-for-rapists-vary-by-state" rel="noreferrer">here</a>.</p>


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<p><a href="https://i.stack.imgur.com/30rZL.jpg" rel="noreferrer"><img src="https://i.stack.imgur.com/30rZL.jpg" alt="enter image description here" /></a></p>
<p>All of these laws are targeted at the case of a woman raped by a man who becomes pregnant, which is factually predominant, something that happens many thousands of times each year in the United States as a whole, and not at the case of a man who, in the course of being raped by a female, causes the female to become pregnant as a result.</p>


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<p>Cases of men being raped that are handled by the legal system, and do not involve statutory rape, predominantly involve sexual interaction that is not reproductive, i.e. something other than a man involuntarily having vaginal sex with a woman, often prison rape by a same sex inmate or rape with an object, and also, as in other cases of rape, often doesn't result in a conception of a child due to random chance. Likewise, many women convicted of rape are convicted as co-participants in a crime that involves physical penetration of a victim by a man or an object, rather than sexual intercourse with the woman convicted of the crime. So, the number of cases that could potentially be litigated with respect to this issue is much smaller.</p>


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<p>It is also worth noting that under U.S. criminal law, sexual intercourse procured by deception (other than deception regarding the person with whom one is having sex, for example, because of a blindfold or darkness, or deception regarding one's status as a medical practitioner making a medical examination, or as a law enforcement officer making a legally authorized cavity search) is not a crime and does not constitute rape.</p>
<p>Also, generally speaking, having sex consensually in a manner not intended to lead to conception, which, in fact, does result in conception with consent to the sex giving rise to conception (e.g. where there is an agreement to &quot;pull out&quot; that isn't performed due to the acts of one or both parties involved), will almost never be prosecuted criminally as rape, whether or not a jury with perfect knowledge of the facts of the interaction could convict under the law of the minority of U.S. states where this might be possible.</p>


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<p>As @user6726 notes, the primary fact pattern related to the OP historically has involved instances of intercourse that are consensual in fact, but constitute statutory rape due to the age of the father which makes it impossible for him to legally consent, and in those cases, the default rule that the biological father of a child is recognized as the father for custody and child support purposes has been the predominant rule.</p>
<p>But much of that case law predates modern rapist-paternity statutes and there is an equal protection argument that those statutes should have a parallel construction, although to the best of my knowledge, there are no reported appellate cases that have tested that issue. It remains an open issue of first impression in most, if not all, jurisdictions that have adopted rape-paternity statutes.</p>


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<p>In Minnesota, which had not adopted such a statute as of January 2020, being raped would not be a defense to a paternity, child custody, or child support claim.</p>


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Answer 2: <p>There is a substantial pattern of decisions to the effect that a male, being an underage minor legally incapable of consenting to sex, who fathers a child is still responsible for child support despite the potentially criminal nature of the circumstances. See <a href="https://www.leagle.com/decision/20041236104p3d113211228" rel="noreferrer">in re. Paternity of KB</a>, 104 P.3d 1132</p>
<blockquote>
<p>courts from other states confronting similar facts have uniformly
concluded legal consent under criminal law is irrelevant in a civil
action for support of the child born of a minor father and an adult
mother</p>
</blockquote>
<p><a href="https://www.leagle.com/decision/19991727985sw2d74211704" rel="noreferrer">Hamm v. OCSE</a>, 985 S.W.2d 742:</p>
<blockquote>
<p>The rule generally accepted in other jurisdictions is that a putative
father who had been below the age of consent for sexual intercourse
under criminal sexual conduct statutes at the time of conception is


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father who had been below the age of consent for sexual intercourse
under criminal sexual conduct statutes at the time of conception is
liable for supporting the child resulting from that union. Jevning v.
Cichos, 499 N.W.2d 515 (Minn.App.1993); see also Dept. of Rev.,
Bennett v. Miller, 688 So.2d 1024 (Fla.App. 5 Dist.1997); State Ex
Rel. Hermesmann v. Seyer, 252 Kan. 646, 847 P.2d 1273 (1993); Mercer
County Dep't of Social Servs. v. Alf M., 155 Misc.2d 703, 589 N.Y.S.2d
288 (N.Y.Fam.Ct.1992); In Re Paternity of J.L.H., 149 Wis.2d 349, 441
N.W.2d 273 (App. 1989); Schierenbeck v. Minor, 148 Colo. 582, 367 P.2d
333 (1961); 14 C.J.S. Children Out-of-Wedlock § 42 (Supp.1998).</p>
</blockquote>


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</blockquote>
<p>The reasoning in these decisions affirms by constantly reciting the fact that these are actually-consensual cases of intercourse despite the overarching doctrine that the minor is incapable of consent, which could easily provide a basis for distinguishing actually-nonconsensual rape of an adult male from the preceding circumstances. However, these cases also rely on the plain language of statutory requirements that a father must provide support for his child. While it would seem quite unjust to victimize a man twice in such a circumstance, the plain language of the statute says what it says, and it is (traditionally, in the US) the duty of the legislature and not the courts to write laws. Since there does not appear to be case law that directly addresses the matter, it's not a forgone conclusion how such a case would be resolved but the weight of precedent is in favor of the statutorily-mandated paternal obligation, lack of consent notwithstanding.</p>


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Question Title: Are terms of service that are not accessible until the supposed binding action has already been taken enforceable?

Question Body: <p>I used the <code>whois</code> Linux command to look up information for <code>mit.edu</code>:</p>
<pre><code>$ whois mit.edu 
This Registry database contains ONLY .EDU domains.
The data in the EDUCAUSE Whois database is provided
by EDUCAUSE for information purposes in order to
assist in the process of obtaining information about
or related to .edu domain registration records.

The EDUCAUSE Whois database is authoritative for the
.EDU domain.

A Web interface for the .EDU EDUCAUSE Whois Server is
available at: http://whois.educause.edu


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The EDUCAUSE Whois database is authoritative for the
.EDU domain.

A Web interface for the .EDU EDUCAUSE Whois Server is
available at: http://whois.educause.edu

By submitting a Whois query, you agree that this information
will not be used to allow, enable, or otherwise support
the transmission of unsolicited commercial advertising or
solicitations via e-mail.  The use of electronic processes to
harvest information from this server is generally prohibited
except as reasonably necessary to register or modify .edu
domain names.

-------------------------------------------------------------

Domain Name: MIT.EDU

Registrant:
    Massachusetts Institute of Technology
    77 Massachusetts Ave
    Cambridge, MA 02139
    USA

Administrative Contact:
    Mark Silis
    Massachusetts Institute of Technology
    MIT Room W92-167, 77 Massachusetts Avenue
    Cambridge, MA 02139-4307
    USA
    +1.6173245900
    mark@mit.edu


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Administrative Contact:
    Mark Silis
    Massachusetts Institute of Technology
    MIT Room W92-167, 77 Massachusetts Avenue
    Cambridge, MA 02139-4307
    USA
    +1.6173245900
    mark@mit.edu

Technical Contact:
    MIT Network Operations
    Massachusetts Institute of Technology
    MIT Room W92-167, 77 Massachusetts Avenue
    Cambridge, MA 02139-4307
    USA
    +1.6172538400
    noc@mit.edu

Name Servers:
    EUR5.AKAM.NET
    USW2.AKAM.NET
    ASIA1.AKAM.NET
    USE5.AKAM.NET
    USE2.AKAM.NET
    ASIA2.AKAM.NET
    NS1-173.AKAM.NET
    NS1-37.AKAM.NET


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Name Servers:
    EUR5.AKAM.NET
    USW2.AKAM.NET
    ASIA1.AKAM.NET
    USE5.AKAM.NET
    USE2.AKAM.NET
    ASIA2.AKAM.NET
    NS1-173.AKAM.NET
    NS1-37.AKAM.NET

Domain record activated:    23-May-1985
Domain record last updated: 08-Jun-2021
Domain expires:             31-Jul-2024
</code></pre>
<p>If this had been the first WHOIS request I had submitted on a <code>.edu</code> domain, I would not have had a chance to read the terms of service. Would these ToS be binding on my first request? Of course, they are binding for later requests, because I have [had a chance to] read them.</p>


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Answer 1: <h2>No</h2>
<p>One of the fundamental <a href="https://law.stackexchange.com/questions/6263/what-is-a-contract-and-what-is-required-for-them-to-be-valid">requirements</a> for an enforcable contract is that there must be agreement - you cannot agree to something you can't know. You can agree to something you don't know if you were given the opportunity to find out and didn't.</p>


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<p>However, the information you receive is not part of a contract since there is no consideration flowing from you to the Registry. Therefore, it must be a gift. However, gifts cannot come with conditions subsequent; I can impose conditions that you need to satisfy before I will give you the gift but I cannot require anything of you afterwards - that would make it a contract. Note that if you doing the conditions <em>requires</em> me to give the gift, then that makes it a contract too, however, if I still have discretion about giving the gift even if you fulfill the conditions, it's still a gift.</p>
<p>For your first call to a .edu domain, you would not be bound by this condition. For all subsequent calls, you would be.</p>
<p>Of course, &quot;the transmission of unsolicited commercial advertising or
solicitations via e-mail&quot; is illegal anyway.</p>


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Question Body: <p>I've been watching &quot;Des&quot;, ITV's dramatisation of the arrest and trial of serial killer Dennis Nielsen.  The police seem desperate to identify the names of the victims, despite having the bodies of the victims and ample evidence of Nielsen's guilt.  Is there a particular reason for this (besides a desire to follow protocol properly and identify the victims' families, etc?)</p>
<p>I'm not a lawyer, but the show makes it seem like the police need to identify the victims in order to charge him with murder - like him being caught with multiple unidentified dead bodies in his house and admitting to guilt isn't enough.</p>


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<p>(For those wondering, Nielsen claimed not to know the identities of his victims as they were predominantly homeless young men and, prior to murdering them, he had only had (in most cases) brief, consensual homosexual encounters with them and spoken to them on first-name terms, which was actually quite plausible).  And it seems logical to me to believe that crimes require identified victims for charges to be brought.</p>
<p>Can someone be charged with murder of an unidentified victim?</p>


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Answer 1: <h2>Yes, a person can be charged with the murder of person or persons unknown</h2>
<p>The reason that police are really keen to identify the victim include (in no particular order):</p>
<ol>
<li>It will probably clear up a missing persons case;</li>
<li>So they can inform the next-of-kin;</li>
<li>Being able to place a named person who loved and was loved before a jury rather than nameless corpse increases the chance of conviction - all else being equal.</li>
</ol>


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Answer 2: <p>In the U.S., John Wayne Gacy, one of the more infamous serial killers (famous for having a hobby of being a clown, though this was not used with his murder MO) was convicted on 33 counts of murder, all of whom were teenage or young adult males who Gacy sexually abused prior to their deaths.  At time of his trial, 11 of the victims he was eventually convicted of killing were unidentified.  Of those 11, 2 were identified while the trial was ongoing, an additional 4 were identified following Gacy's conviction, the most recent of which was identified in October of 2021.  At least one of the 4 post-conviction bodies that remained unidentified until the renewed effort that begun in 2011 was long suspected by the victim's parents, however, they were unable to provide dental records as their family dentist had recently retired and all his records were destroyed.</p>


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<p>While a reason was not asked, the renewed effort to identify Gacy's unidentified victims has led to the closing of four unrelated cold cases dating back as far as 1972 and ruled out several cases that Gacy was suspected of but never convicted of.</p>
<p>At time of writing, 5 of Gacy's victims remain unidentified, however all unidentified victims had viable DNA samples collected, as of October 2011.</p>


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Question Body: <p>TL;DR: Is it legal to download and read the DeCSS Haiku in the US? Is it legal to share it?</p>
<p>I now ask about<br>
The DeCSS haiku<br>
A poem written</p>
<p>As an exercise<br>
Of the First Amendment right<br>
To speak of one's views.</p>
<p>This particular<br>
view was that the DVD<br>
CCA cannot</p>
<p>Use their copyright<br>
Or, perhaps, trade secret right,<br>
To stop a coder</p>
<p>From decrypting<br>
His legally acquired,<br>
Yet encrypted, discs,</p>
<p>And telling others<br>
What he found would decode<br>
The encrypted discs.</p>
<p>To show computer code is speech,<br>
Protected under the law,<br>
He wrote a poem.<br></p>
<p>Four hundred sixty,<br>
Oh, and five more, stanzas<br>
Of geeky haiku.</p>
<p>From these many stanzas,<br>
Another coder, who knows<br>
C, can write their own</p>
<p>Program to decode<br>
Encrypted video discs,<br>
And thus, he proved that</p>
<p>Code is, in fact, speech.<br>
Or so it was thought by some;<br>
Others may argue,</p>


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C, can write their own</p>
<p>Program to decode<br>
Encrypted video discs,<br>
And thus, he proved that</p>
<p>Code is, in fact, speech.<br>
Or so it was thought by some;<br>
Others may argue,</p>
<p>Particularly the<br>
DVD CCA, that<br>
He did not succeed;</p>
<p>Even if code is speech,<br>
This code is unprotected,<br>
And thus illegal.</p>
<p>Who is right, O Muse?<br>
(Or rather, SE users),<br>
Please do inform me,</p>
<p>May I read this poem <br>
Legally in USA?<br>
Or does it infringe</p>
<p>Other rights, which are<br>
Held above free speech in court?<br>
May I read those words,</p>
<p>And also share them,<br>
Written to protest against<br>
IP tyranny?</p>


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Answer 1: <p>The “decss haiku” consists, in primary part, of a long string of numbers, split up into lines by syllables. It was a clever joke, but anyone who feels that encryption keys are stripped of any legal protection by making them into “poetry” fundamentally misunderstands the difference between telling a computer to do something and telling a judge to do something.</p>
<p>In any case, however, the finding that the encryption key was covered by trade secret protections was <a href="https://www.cnet.com/culture/court-decss-ban-violated-free-speech/" rel="nofollow noreferrer">reversed on appeal</a>.</p>


Tags: united-states, copyright, freedom-of-speech, first-amendment


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Question Title: idea behind the concept of alibi; people are innocent until proven guilty

Question Body: <p>What is the idea behind the concept of alibi in a legal system in which people are innocent until proven guilty?</p>


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Answer 1: <p>An alibi is a particular kind of defense strategy bearing on the burden of proof: <a href="https://www.justia.com/criminal/docs/calcrim/3400/3400/" rel="noreferrer">here is the alibi jury instruction</a> for California.</p>
<blockquote>
<p>The defendant contends (he/she) did not commit (this/these) crime[s]
and that (he/she) was somewhere else when the crime[s] (was/were)
committed. The People must prove that the defendant was present and
committed the crime[s] with which (he/she) is charged. The defendant
does not need to prove (he/she) was elsewhere at the time of the
crime.</p>
</blockquote>
<p>&quot;I had put the gun down&quot; is not an alibi defense, &quot;I was not in my right mind at the time&quot; is not an alibi defense. The alibi defense is essentially a formality that clarifies the logic of &quot;reasonable doubt&quot; for the jury. If the defendant could not have committed the crime because they weren't there, then that is the end of the discussion.</p>


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<p>The prosecution will introduce various facts that suggest that the defendant may have committed the crime. The &quot;reasonable doubt&quot; instruction is widely interpreted by jurors to involve a defense obligation to disprove that evidence, which is a reason why a number of jurisdictions have adopted a different instruction based on &quot;being firmly convinced&quot;. Reasons to doubt prosecution evidence can be weak and highly speculative, and the courts have struggled for years to find a good way to convey exactly what &quot;reasonable doubt&quot; is. An alibi goes way beyond merely detracting from the prosecution's case.</p>


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<p>An alibi is not an affirmative defense where you have to prove the claim by a preponderance of evidence. If you can establish that you were somewhere else when the crime happened, had no opportunity to have committed the crime and could not have committed the crime by another means, you have defended yourself against the charge (assuming that the prosecution does not successfully challenge the credibility of the alibi witness). And in California, you have to give notice that you intend to use the alibi defense.</p>


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Answer 2: <p>In most countries, the following happens before a conviction:</p>
<ol>
<li>The police believes the suspect to be guilty and passes the case to the prosecution. If the police don't believe the suspect is guilty, the suspect is not a suspect any more.</li>
<li>The prosecution believes that they can win the case, based on the evidence, and files the case in court. This is not just a professional judgement of the guilt of the defendant but also of the sufficiency of the evidence. If they do not think that they can win, it is the duty of the prosecution to stop wasting taxpayer money.</li>
<li>The prosecution convinces the judge or jury that the evidence shows guilt beyond reasonable doubt.</li>
</ol>


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<li>The prosecution convinces the judge or jury that the evidence shows guilt beyond reasonable doubt.</li>
</ol>
<p>If an innocent defendant reaches step 3, there must be evidence which can be <strong>misconstrued</strong> to show guilt. At this point, just saying <em>&quot;I plead not guilty and there is reasonable doubt&quot;</em> is a terribly risky defense strategy. It gambles that the judge or jury will not make the same mistake as the prosecution.</p>
<p>So it makes sense to show evidence of innocence (the alibi) to rebut the evidence of the prosecution.</p>


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Answer 3: <p>The phrase &quot;innocent until proven guilty&quot; is often misunderstood, not least because it isn't the whole phrase; it omits the the word &quot;presumed.&quot;</p>
<p>An accused party is not literally held to be innocent until proven guilty but is rather <em>presumed</em> to be innocent until proven guilty.  The primary effect of this presumption is to place the burden of proof on the prosecution.</p>
<p>One may indeed then reasonably ask what the role of alibi is in such a system.  Why must a defendant (or a suspect) show that he or she was not in the place where the crime was committed at the time of commission?  The answer is that this isn't in fact necessary unless the prosecution (or investigators) have some other evidence that tends to suggest that the defendant did commit the crime.</p>


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<p>For example, if Alice owns a red 1969 Ford Mustang and Bob was seen to have been shot dead by the driver of a red 1969 Ford Mustang then this is evidence of Alice's guilt even though there are other possible explanations.  A prosecutor can present this evidence at trial, and one response to this evidence could be for Alice to submit that she and her car were somewhere else at the time, leaving the &quot;trier of fact&quot; to make sense of the conflicting submissions.  Alice could also simply argue that the prosecutor hadn't proven that the car from which Bob was shot was Alice's nor that Alice was in the car, much less that Alice had pulled the trigger, but you can see that this is a somewhat weaker argument.  &quot;It couldn't have been Alice&quot; is a stronger statement than &quot;you haven't shown that it was Alice.&quot;</p>


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<p>In the early stages of an investigation, as we frequently see in fictional depictions, investigators use alibi to narrow the scope of their task.  They may not at that point have sufficient evidence -- or any evidence at all -- to suggest that Alice killed Bob, but if they can establish quickly that Alice couldn't have killed Bob then they can save themselves a lot of work investigating Alice.</p>
<hr />
<p>To put it another way, inspired by Sneftel's comment asking about &quot;other evidence presented in defence,&quot; the prosecutor must present evidence of the defendant's guilt, but the defendant can present evidence to counter or &quot;rebut&quot; the prosecutor's evidence.  Alibi is just one category of such evidence.</p>


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<p>In a system where suspects have no obligation to respond to police questioning, suspects are not obliged to present an alibi if asked, even if they are in fact innocent of the crime under investigation (for example, they may have been committing another crime at the time).  Defendants similarly do not need to present alibi evidence at trial; they may use other means to rebut prosecutors' evidence, or they may even refrain from doing so and accept a conviction for a crime they did not commit.</p>


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Answer 4: <p>Proof beyond a reasonable doubt does not require that a prosecutor show that there is no conceivable string of coincidences which would be be consistent with the evidence even if the accused was not guilty, but merely that any such string of coincidences be sufficiently unlikely as to be implausible.</p>
<p>If the defendant has a distinctive red head resembling Lucille Ball, and someone who looked like that was caught on video robbing a store, and a defendant is found in the neighboorhood fairly soon thereafter, it may be possible that the defendant had just driven into the neighborhood at the same time as someone else who looked like Lucille Ball had robbed the store, but that would generally be unlikely.</p>


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<p>If, however, the defendant could prove that the defendant had just entered the neighborhood after performing a comedy routine in front of a large audience, and that the defendant was on stage at the moment the robbery was taking place, that would suggest that there <em>must</em> have been some other red head in the neighborhood, even though that would seem an unlikely coincidence.</p>
<p>Alternatively, a defendant might introduce evidence that there was a Lucille Ball lookalike contest in the neighborhood, and that while her hairdo might have been distinctive compared to the population at large, it would have not stood out at all from many of the other women in the contest.  This wouldn't be an alibi as such, but would again serve the purpose of showing that what might have seemed an implausibly unlikely coincidence had quite possibly in fact happened.</p>


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<p>Note that some jurisdictions may require that claimed alibis be made available to the prosecution before trial.  This is done to ensure that the prosecution has a fair chance to vet any alibi witnesses, determine whether they are reliable, and ensure that the jury is made aware of any evidence that might suggest the alibi witness is not especially reliable.  It would also ensure that the prosecution can identify any evidence such as video takes to determine whether they might have been falsified.  A prosecutor isn't allowed to simply say in trial &quot;We have no way of knowing for certain whether the defendant's video might have been faked&quot;, inducing speculation that it might be.  Instead, the prosecutor must be given time to find evidence--if any exists--of the falsification.</p>


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Answer 5: <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>&quot;Any person charged with an offence has the right... <strong>to be presumed innocent until proven guilty</strong> according to law...&quot; (<em>Charter</em>, s. 11(d)).</p>
<p>When it appears to the defence that the prosecution will otherwise prove the offence, there will often be a <em>practical</em> burden on the defendant to introduce their alibi in order to introduce reasonable doubt about their guilt.</p>
<p>See Justice Pigeon's explanation in <em>R. v. Proudlock</em> (1978), <a href="https://canlii.ca/t/1mktb" rel="nofollow noreferrer">[1979] 1 S.C.R. 525</a>.</p>
<blockquote>


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<p>See Justice Pigeon's explanation in <em>R. v. Proudlock</em> (1978), <a href="https://canlii.ca/t/1mktb" rel="nofollow noreferrer">[1979] 1 S.C.R. 525</a>.</p>
<blockquote>
<p>If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accused will necessarily have the burden of adducing evidence if he is to escape conviction.</p>
</blockquote>
<p>However, the burden is always on the prosecution to prove the guilt of the defendant beyond a reasonable doubt. A typical jury instruction includes a phrase such as:</p>
<blockquote>
<p>Even if you are not left in a reasonable doubt by the evidence in support of the defence of alibi, you must still go on to determine whether or not on the basis of all the evidence the accused is guilty.</p>
<p>(<em>R. v. Hibbert</em>, <a href="https://canlii.ca/t/51s0#par55" rel="nofollow noreferrer">2002 SCC 39 at para. 55</a>)</p>
</blockquote>


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Answer 6: <ul>
<li><p>A defendant is asked to provide an alibi during a trial. It means that there was already enough evidence to prosecute the defendant. In this case the alibi is needed to counter that evidence. Absence of an alibi does not mean that the defendant is immediately considered guilty, but it makes more likely a guilty verdict at the end of the trial.</p>
</li>
<li><p>A suspect is asked to provide an alibi during an interrogation by the police. In this case it is in the interest of the suspect to provide an alibi to avoid being investigated and eventually prosecuted. Providing immediately an alibi is not mandatory, but providing that alibi later without a reasonable explanation might make it appear fabricated.</p>
</li>
</ul>


Tags: criminal-law


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Question Body: <p>Is Post Traumatic Stress Disorder (or Complex PTSD) treated as an injury, serious injury or life-changing injury in cases of assault ?</p>
<p>I am interested in answers from any jurisdiction.</p>
<p>In response to a comment : I am interested in whether or not, or to what extent, the effect of PTSD can be included as an injury due to the assault, not if it would be an additional charge (although if that's the case anywhere I'd like to know).</p>
<p>I am primarily interested in criminal law, although points of note in civil law would be of interest as well.</p>
<p><strong>Motivation</strong></p>
<p>I'm trying to gather information on how PTSD/C-PTSD is viewed in terms of injury to a victim in different jurisdictions.</p>
<p>From my perspective causing PTSD/C-PTSD is equivalent to causing a permanent disability.</p>


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<p>From my perspective causing PTSD/C-PTSD is equivalent to causing a permanent disability.</p>
<p>Many years ago I  was a victim of an assault and break-in which resulted in (thankfully) minor physical injuries but caused severe Complex Post Traumatic Stress Disorder (C-PTSD).  PTSD and C-PTSD are life changing disorders which have an impact similar to a severe disability in many ways.  In Ireland they're treated as a disability for the purposes of Welfare allowance.</p>
<p>However the court case, long past, did not mention my C-PTSD and while there was a guilty verdict, it is clear that, in my case, PTSD was not considered as equivalent to e.g. the effect of gross bodily harm or causing a disability to the victim.</p>
<p>My C-PTSD was diagnosed long before the court case and within a month of the assault.  There would have been ample time to list it as a result of the assault on e.g. a formal charge document.</p>


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<p>My C-PTSD was diagnosed long before the court case and within a month of the assault.  There would have been ample time to list it as a result of the assault on e.g. a formal charge document.</p>
<p>I'm Irish and the assault I describe happened in Ireland, so a similar legal system to the UK.  I am, however, interested in how this is treated in jurisdictions.</p>


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Answer 1: <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> <strong>Yes, both for civil and criminal law, but in different ways.</strong></p>
<p>The general principle of civil law in France (and I believe every <a href="/questions/tagged/civil-legal-system" class="post-tag" title="show questions tagged &#39;civil-legal-system&#39;" aria-label="show questions tagged &#39;civil-legal-system&#39;" rel="tag" aria-labelledby="tag-civil-legal-system-tooltip-container">civil-legal-system</a> jurisdiction) is that one is liable for any damage they cause through fault. Of course, details differ greatly between what is considered a damage, what are the standards to prove causation or fault, etc.</p>


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<p><a href="https://www.legifrance.gouv.fr/juri/id/JURITEXT000036584595/" rel="nofollow noreferrer">Cour de cassation, civile, Chambre civile 2, 18 janvier 2018, 16-28.392</a> specifically endorsed a lower court reasoning that distinguished between <em>préjudice moral</em> (moral damage) and <em>préjudice psychologique</em> (psychological damage). The latter is about quantifiable medical damage (even if mental rather than physical), while the former covers grave breaches of wellbeing. In the case at hand, a couple was assassinated when their child was two years old; the child later developed severe psychic disorders as a result of the trauma; it was found that a compensation for the <em>préjudice moral</em> of losing his parents at a young age did not foreclose a later suit for the <em>préjudice psychologique</em> of developing mental troubles (which became visible much later in his life).</p>


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<p>To be honest, I would be extremely surprised if <em>any</em> jurisdiction recognized no cause of action for any type of psychological damage. There might be issues of burden of proof etc. such that <em>in practice</em> suing for psychological damage is unviable, but a complete bar on any civil action predicated on psychic damage seems unthinkable.</p>
<hr />


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<hr />
<p>Regarding criminal law, many assault-type crimes are scaled by gravity. That gravity is evaluated by days of &quot;complete inability to work&quot; (search <em>incapacité totale de travail</em> through <a href="https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006070719/LEGISCTA000006149827/#LEGISCTA000006149827" rel="nofollow noreferrer">that section of the penal code</a>). While the notion has been standardized by work law cases, it also applies outside a work context when the damage prevents one from doing basic life actions (children, retirees or the unemployed can be subject to a &quot;complete inability to work&quot;). Whether the damage that caused it was physical or mental is irrelevant.</p>
<p>Two notes though:</p>
<ul>


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<p>Two notes though:</p>
<ul>
<li>physical damage resulting from assault is more easily quantified by that scale than mental damage. If a mob boss breaks your bones, you spend one month in the hospital, and then you get out roughly healed; it’s easy to say that it cost you one month of your life. If the same mob boss kills your wife in a gruesome manner, you might be haunted for life, but still be able to work, feed yourself etc., past one or two days of shock. &quot;Low-level&quot;, long-lasting damage is not well-measured that way.</li>


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<li>quantifying the duration of a &quot;complete inability to work&quot; depends on the victim’s active cooperation with the prosecution (such as going to see a doctor to get a certificate). That is possible because the civil and criminal causes of actions are usually joined in a single trial, during which the victim will try to prove injury. (It is possible for the victim to open a separate civil trial, but that’s usually not a good idea. The same exact remedies are available by joining in the criminal trial; usually the prosecutor has the same goals as you in proving the facts, so why not let them do it and save some lawyer fees?) It would probably not be reasonable in a <a href="/questions/tagged/common-law" class="post-tag" title="show questions tagged &#39;common-law&#39;" aria-label="show questions tagged &#39;common-law&#39;" rel="tag" aria-labelledby="tag-common-law-tooltip-container">common-law</a> system with separate trials. It also breaks down in certain cases (e.g.: in a


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questions tagged &#39;common-law&#39;" rel="tag" aria-labelledby="tag-common-law-tooltip-container">common-law</a> system with separate trials. It also breaks down in certain cases (e.g.: in a good fraction of spousal abuse cases, the victim refuses to testify against the accused).</li>


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Answer 2: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>I am not aware of any such statute. Often, assault crimes are graded between those that result in merely &quot;bodily injury&quot; and those that result in &quot;serious bodily injury.&quot;</p>
<p>Sometimes there are offense enhancers for assaults on children, pregnant women, or &quot;at risk&quot; individuals (such as elderly people), and for assaults on law enforcement and other first responders.</p>
<p>If an assault occurs in the course of a robbery, burglary, kidnapping, or rape, the assault is often a sentencing enhancer for those crimes.</p>


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<p>If an assault occurs in the course of a robbery, burglary, kidnapping, or rape, the assault is often a sentencing enhancer for those crimes.</p>
<p>In some cases, conduct giving rise to a criminal charge of assault would also give rise to a criminal charge of &quot;menacing&quot; which is similar to the common law crime and tort of &quot;assault&quot;. Modern terminology in statutes frequently refers to the common law crime and tort of &quot;battery&quot; as &quot;assault&quot;, even though the common law meaning of the word was to place someone in apprehension of imminent battery rather than meaning battery itself.</p>
<p>But, psychological impact, such as PTSD, is not normally not considered in determining is serious injury, often specifically defined as &quot;seriously bodily injury&quot; has occurred.</p>


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<p>But, psychological impact, such as PTSD, is not normally not considered in determining is serious injury, often specifically defined as &quot;seriously bodily injury&quot; has occurred.</p>
<p>This said, typically, an offense of conviction involves a range of possible punishments decided upon in a post-conviction sentencing hearing. At such a hearing, the impact of the crime on the victim, including a PTSD impact, would frequently be presented as an aggravating factor to guide the sentencing decision within the allowed range of sentences for an offense.</p>
<p>So, for example, a simple assault resulted in PTSD for the victim of the assault, and the permissible sentencing range for the offenses was 1 day to 2 years of incarceration, evidence that the assault had severe psychological consequences, despite resulting in only modest bodily harm, would argue for a sentence towards the high end of the allowed range of sentences.</p>


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Answer 3: <h2>Yes</h2>
<p><a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" aria-label="show questions tagged &#39;new-south-wales&#39;" rel="tag" aria-labelledby="tag-new-south-wales-tooltip-container">new-south-wales</a></p>
<p>Assault that results in actual or grievous bodily harm attract progressively more severe punishments than assaults that don’t. The case law <a href="https://www.gotocourt.com.au/criminal-law/nsw/assault/" rel="nofollow noreferrer">recognises</a> psychological injury as bodily harm.</p>


Tags: assault, any-jurisdiction


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Question Title: What does the lawful sanctions clause in international convention on torture mean?

Question Body: <p>In Article 1 of international convention on torture. It states the following</p>
<blockquote>
<p>It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions</p>
</blockquote>
<p>How is this interpreted and is this interpreted broadly ? To include torture , cruel and inhuman treatment itself as a legal punishment ?</p>


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Answer 1: <h2>It excludes pain and suffering incidental to lawful <a href="https://en.wikipedia.org/wiki/Capital_punishment" rel="nofollow noreferrer">capital</a> and <a href="https://en.wikipedia.org/wiki/Corporal_punishment" rel="nofollow noreferrer">corporal</a> punishment</h2>
<p>Many countries around the world still execute people. As far as is known, no form of capital punishment is totally painless - even lethal injection involves a needle. In any event, the anticipation of capital punishment is likely to cause suffering.</p>
<p>Similarly, corporal punishment such as <a href="https://en.wikipedia.org/wiki/Caning#Judicial_corporal_punishment" rel="nofollow noreferrer">caning</a> is still a lawful sanction in many jurisdictions. This clearly causes pain - that’s the point - but it isn’t torture.</p>
<p>It would also exclude lawful corporal punishment of students by teachers where this is still legal. Or of military personnel by their superiors, again, where that is legal.</p>


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<p>It would also exclude lawful corporal punishment of students by teachers where this is still legal. Or of military personnel by their superiors, again, where that is legal.</p>
<p>Now, organisations like <a href="https://www.9news.com.au/national/cane-singapore-andrew-gosling-rattan-caned-malaysia-brunei-indonesia-crime-news/9474ddc2-62fb-44e9-a047-fe2ff6b16b7d" rel="nofollow noreferrer">Amnesty International</a> consider all of those things to be torture. I don’t think they are wrong in taking that position but, under the convention, they aren’t legally torture.</p>


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Answer 2: <p>There are several views as to the meaning of the &quot;lawful sanctions&quot; exception.</p>
<h3>The sanctions must be of the kind widely accepted as legitimate</h3>
<p><a href="https://en.wikipedia.org/wiki/United_Nations_special_rapporteur" rel="noreferrer">Special Rapporteur</a> on torture, <a href="https://en.wikipedia.org/wiki/Nigel_Rodley" rel="noreferrer">Nigel S. Rodley</a>, was tasked by the U.N. Commission on Human Rights to report on the practice of corporal punishment through the lens of various human rights instruments, including the UNCAT. He reported (<a href="https://documents-dds-ny.un.org/doc/UNDOC/GEN/G97/101/13/PDF/G9710113.pdf?OpenElement" rel="noreferrer">E/CN.4/1997/7</a>):</p>
<blockquote>


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<blockquote>
<p>the &quot;lawful sanctions&quot; exclusion must necessarily refer to those sanctions that constitute practices widely accepted as legitimate by the international community, such as deprivation of liberty through imprisonment, which is common to almost all penal systems. Deprivation of liberty, however unpleasant, as long as it comports with basic internationally accepted standards... is no doubt a lawful sanction. <strong>By contrast</strong>, the Special Rapporteur <strong>cannot accept the notion that the administration of such punishments as stoning to death, floggin and amputation -- acts which would unquestionably be unlawful in, say, the context of custodial interrogation -- can be deemed lawful simply because the punishment has been authorized in a procedurally legitimate manner, i.e. through the sanction of legislation, administrative rules or judicial order</strong>. To accept this view would be to accept that any physical punishment,


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no matter how torturous and cruel, can be considered lawful, as long as the
punishment had been duly promulgated under the domestic law of a State.</p>
</blockquote>
<h3>The Committee Against Torture has said all corporal punishment violates the Convention Against Torture</h3>
<p>See Concluding Observations on South Africa, <a href="https://documents-dds-ny.un.org/doc/UNDOC/GEN/G07/403/24/PDF/G0740324.pdf?OpenElement" rel="noreferrer">UN Doc. CAT/C/ZAF/CO/1, 2006</a>, §25:</p>
<blockquote>
<p>The State party should ensure that legislation banning corporal punishment is strictly implemented, in particular in schools and other welfare institutions for children, and establish a monitoring mechanism for such facilities.</p>
</blockquote>
<h3>The &quot;lawful sanctions&quot; exception does not expand what is allowed under the Convention Against Torture because article 16 is more restrictive anyway</h3>


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</blockquote>
<h3>The &quot;lawful sanctions&quot; exception does not expand what is allowed under the Convention Against Torture because article 16 is more restrictive anyway</h3>
<p>Article 16 forbids &quot;other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture&quot; anyway, with no exception for &quot;lawful sanctions.&quot; Article 1's &quot;lawful sanctions&quot; exception, when read in conjunction with Article 16, may be meaningless. See C.E.F. Coracini, &quot;<a href="https://journals.sagepub.com/doi/pdf/10.1177/016934410602400205" rel="noreferrer">The Lawful Sanctions Clause in the State Reporting Procedure Before the Committee Against Torture</a>&quot; (2006) 24 Netherlands Quarterly of Human Rights 305, p. 317:</p>
<blockquote>


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<blockquote>
<p>If the sole arguable application of the 'lawful sanctions' clause is to prevent the treatment of prisoners, consistent with international standards, from falling within the threshold of the concept of torture, and considering that the treatment of prisoners in accordance with international law should not violate the prohibition of torture, the clause is potentially a useless provision, which at the present time, ought not to be taken into account by interpreters.</p>
</blockquote>
<h3>Another view is that this is not clearly resolved</h3>
<p><a href="https://en.wikipedia.org/wiki/World_Organisation_Against_Torture" rel="noreferrer"><em>Organisation Mondiale Contre la Torture</em></a> (OMCT) says in their <a href="https://www.omct.org/site-resources/legacy/handbook4_eng_04_part4_2020-12-11-144643.pdf" rel="noreferrer">handbook</a>:</p>
<blockquote>


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<blockquote>
<p>the issue is not resolved, and it may be that this exception exempts even the cruellest treatment from classification as &quot;torture&quot; if such treatment is authorised by domestic law. [citing Johan D. van der Vyver, &quot;Torture as a Crime Under International Law&quot; (2003) 67 Albany Law Review 427, p. 432]</p>
</blockquote>
<h3>Domestic implementation</h3>
<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="united-states-container">united-states</a></p>
<p>The United States, in the context of its extradition regulations made to comply with the UNCAT, understands &quot;lawful sanctions&quot; to include (see <a href="https://www.law.cornell.edu/cfr/text/22/95.1" rel="noreferrer">22 C.F.R. § 95.1</a>):</p>
<blockquote>


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<blockquote>
<p>judicially imposed sanctions and other enforcement actions authorized by law, provided that such sanctions or actions were not adopted in order to defeat the object and purpose of the Convention to prohibit torture</p>
</blockquote>


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Question Title: Legality and license choice for reverse-engineered project

Question Body: <p>I reverse engineered (by sniffing+x32dbg) part of the protocol for a board game client in order to build an alternative client on top of it while still using the official servers. I open-sourced the work so that others can contribute to it as well. I'm based in the EU and the product owners are based in China.</p>
<p>Is this legal? And if so, what license is appropriate for it?</p>
<p>Note: I'm not benefiting commercially from this work.</p>


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Answer 1: <h2>Check your license!</h2>
<p>By operating the original client, you might have agreed to a license, the EULA. Check that license for what it says about you being allowed to do with the product.</p>
<p>In a recent case of <a href="https://www.courtlistener.com/docket/60204895/bungie-inc-v-elite-boss-tech-incorporated/" rel="noreferrer">Bungie vs. Elite Boss Tech</a>, a US court found in a <a href="https://ia804501.us.archive.org/23/items/gov.uscourts.wawd.302469/gov.uscourts.wawd.302469.75.1.pdf" rel="noreferrer">default judgment</a> that a certain cheat software that would interact with both the game's client and the company's servers among other things did...</p>
<ul>
<li>constitute copyright infringement [as a derivative work]</li>
<li>was a breach of contract [formed by the EULA and agreeing to the Terms of Service for the game]</li>
<li>was interference with Contractual allegations [of other users that obtained the software]</li>
</ul>


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<li>was interference with Contractual allegations [of other users that obtained the software]</li>
</ul>
<p>However, not all internet games or experiences are locked down like that. Other companies do offer an open API set or terms under which a client's software may be modified. As a very generous example, <a href="https://www.lindenlab.com/" rel="noreferrer">LindenLabs</a> does for its SecondLife Virtual World, <a href="https://wiki.secondlife.com/wiki/APIs_and_Web_Services_Portal" rel="noreferrer">for which they provide not just the framework</a>, but also <a href="https://secondlife.com/corporate/third-party-viewers" rel="noreferrer">the terms under which you are allowed to make a third party <em>Viewer</em></a></p>


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<p>Sometimes, the Terms of service are rather hidden. For example, the <a href="https://senseis.xmp.net/?FoxWeiqi" rel="noreferrer">Chinese Go platform Fox Weiqi</a> operates in china. To get to the terms of service, you need to download the free client, go to <em>Settings</em> (via the cog), then choose 野狐围棋用户协议, which is Chinese for Wild Fox Go User Agreement. This links to <a href="https://edu.foxwq.com/complex/useragreement.html" rel="noreferrer">https://edu.foxwq.com/complex/useragreement.html</a>. The user agreement is of course in Chinese, but Google Translate manages to get that to English. It contains the following clause:</p>
<blockquote>
<p>7.2 Unless permitted by law or with the written permission of Yehu, you shall not engage in the following acts during the use of this software:</p>
<p>( 1 ) Delete the copyright information on the software and its copies;</p>


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<p>( 1 ) Delete the copyright information on the software and its copies;</p>
<p>( 2 ) <strong>Reverse engineer, reverse assemble, reverse compile the software</strong>, or try to find the source code of the software in other ways;</p>
<p>( 6 ) Log in or use Yehu Go and its services <strong>through third-party software</strong>, plug-ins, plug-ins, systems not authorized by Yehu, or make, publish, and disseminate the above tools;</p>
<p>( 7 ) <strong>Interfering with the software</strong> and its components, modules, and data <strong>by</strong> itself or authorizing others or <strong>third-party software</strong></p>
</blockquote>


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</blockquote>
<p><a href="https://ironcladapp.com/journal/contracts/terms-and-conditions-legally-binding/" rel="noreferrer">While it takes a court to see if the terms hold water and are actually enforceable because of how the EULA is offered</a>, the face value of those clauses is, that it is forbidden unless you have a specific law that allows such or you obtain written permission.</p>
<p>With that kind of possible liability that might cost millions, there might be serious legal problems. <strong>Read your license agreement and terms of service</strong> and consult a lawyer.</p>


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Question Title: Is this trespassing on US government property?

Question Body: <p>I live on a residential access road off of USDA property. Multiple times a week for the last 5 years, I have taken a walk down my road and on to the USDA property, walking on the main roads around the complex. Yesterday I was stopped by a security guard for the first time and told that I could not walk on “federal government property” and I must turn around.</p>
<p>There is a single sign posted that says “US Government Property: No Trespassing Off Main Roads”. My question is, is this trespassing? I am walking on the main roads of the complex. There are sidewalks that lead all the way out to the public road out front. And I HAVE to cross into the USDA property to get to my house.</p>
<p>Other than the USDA property, the rest of the immediate area is commercial property without very good sidewalks so I would have to get in my car and go somewhere else in order to get a quick mile or two walk in.</p>


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Answer 1: <h2>Yes, you are trespassing</h2>
<p>Someone with the ostensible authority of the owner (the security guard) has revoked your permission to be on the property. If you remain in spite of this, you are trespassing.</p>
<p>Whether the guard had the actual authority to do so or was actually wrong to do so is something you don’t know and, in any event, is irrelevant to the particular circumstances. Your obligation in the moment is to comply with the direction and leave the premises.</p>
<p>At a latter date, you can clarify the issue  with someone higher up in the organization. If it turns out you can use the main roads, ask them to confirm that in writing and keep that document with you for the next time you are challenged.</p>


Tags: property, us-federal-government, trespass, trespassing


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Question Title: Can someone who does not consider himself a US citizen be extradited and punished for a US felony crime due to a US citizenship?

Question Body: <p>based off of the answer to this question: <a href="https://law.stackexchange.com/questions/4629/if-one-leaves-the-us-to-commit-an-act-illegal-in-the-us-but-legal-in-the-country/4631#4631">If one leaves the US to commit an act illegal in the US but legal in the country they travel to are they guilty of a crime?</a>  My first bizarre loophole question has to do with situations when someone is a US citizen, but consider themselves to be citizens of a different country with different laws..</p>

<p>Lets say you have two Individuals Bob, age 17, and Alice, who just turned 18, who live in, and are citizens of, some non-US country X, who are dating and have a sexual relationship.  Say country X considers the age of consent 16, recognizes dual citizenship, and has an extradition treaty with the US...</p>


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<p>However, Alice happened to have been born on a cruise while the cruise ship was sailing through US territorial waters, thus making her a US citizen.  She has never done any of the things which can cause someone to officially lose their US citizenship.</p>

<p>Federal law states <a href="http://trac.syr.edu/laws/18/18USC02423.html" rel="nofollow noreferrer">it is illegal for a US citizen to have sex with an individual under the age of 18 in a 'foreign place'</a></p>

<p>I'm wondering what, of any of these scenarios, would be illegal due to the above law and could theoretically lead to either extrication, or to arrest when/if they ever visited the US at some later date (and if one is possible but not the later).</p>

<ol>
<li><p>Alice never realizing she was born actually born in US waters and never thinking of herself as a US citizen, and she never visited the US or engaged in any of the activities that cause her to lose citizenship</p>


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<p>If the above would not be sufficient would any of the below situations potentially lead to prosecution:</p>

<ul>
<li>Knew she was also a US citizen and had once claimed some minor right or privileged due to being a US citizen.</li>
<li>Occasionally visits a friend or relative within the US for brief periods, using her US citizenship to allow easier entry to the US, without going through the steps of the VWP.</li>
<li>Once stayed in the US with said friend/relative for slightly more then 90 days (beyond the length a regular tourist can stay) many years ago</li>
<li>Had just spent spent 91 day summer vacation with her family relative before returning to her home country and having sexual relations with Bob.</li>
</ul></li>
<li><p>Alice and Bob both live in and were citizens of X but originally met when both were on a vacation to the US, ultimately having a sexual relationship in their home country.</p>

<p>Would Alice potentially face prosecution, if not would this change if: </p>


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<p>Would Alice potentially face prosecution, if not would this change if: </p>

<ul>
<li>The couple had (legally) engaged in sexual activity in the US prior to traveling back home</li>
<li>The couple originally met in a state where sexual intercourse would have been illegal and so waited until returning home before having a sexual relationship? </li>
<li>Alice bought bob plan ticket home, so she is officially 'transporting' bob? (section a of the above law applies)</li>
<li>Alice and bob did have a relationship prior to their visit to the US which continued during their US visit.</li>
</ul></li>
</ol>


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<p>I realize that prosecutor discretion would usually result in no one choosing to prosecutor most if not all of the above cases, despite any  legal right, but I'm asking rather they could face charges if a prosecutor did choose to move forward for some reason.  I don't know why they would, maybe they are angry at Alice for some other legal act and this is their way of bending the laws to punish Alice in some way, maybe someone is putting pressure on Alice as some political maneuver to pressure her important father into something, maybe some prosecutor is just really gung-ho in prosecuting crimes for some reason whatever...</p>


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<p>*Edit:
Looking back at the law I linked I realized that the definition of illicit sexual encounter, when outside of US territories, is effectively defined as a commercial sexual act, which negates all my examples since no one was being payed.  However, I'm not interested in the specific law so much as how any law making activities on foreign territory illegal would be applied to citizens, and only used this law because it was the only one I knew of to reliable reference.  For now umm...just pretend that illicit sexual act part of the law was not limited only to commercial acts when answering this question?  I think the heart of what I'm trying to understand wouldn't change if that law were slightly different and that's easier then my rewriting all of the above.</p>


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<p>ps. A US citizen can travel to Angola and have sex with a 12 year old without any repercussion so long as he doesn't pay anyone if I'm reading the law right?  That's something I really didn't need to know about.  I knew I shouldn't have used that particular law as my example for this...</p>

<p>pps. Also the definition of "any person can be charged with a
    criminal offense" seems extremely vague since it doesn't specify what country/state laws would apply for deciding if the person could be charged with a criminal offense, and I'm sure if you look far enough countries have outlawed all kind of things as sexual offenses, like being in the presence of a women who isn't wearing a hijab.</p>


Answer 1: <h2><a href="https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat" rel="noreferrer">Ignorantia juris non excusat</a></h2>

<p>You can say I didn't know: it won't keep you out of jail.</p>


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<p>You can say I didn't know: it won't keep you out of jail.</p>

<p>Rather than delving into the specifics of your question, I will keep my answer general. If you break the law, you break the law. It doesn't matter if:</p>

<ul>
<li>you don't know what the law is,</li>
<li>you didn't think the law applied to you,</li>
<li>you thought what you were doing was in accordance with the law.</li>
</ul>

<p><strong>"Break the law"</strong> is an objective fact - there is no subjectivity involved. The state of mind of the person is, in most jurisdictions, irrelevant; the common law doctrine of <em>mens rea</em> or "the guilty mind" has almost universally been done away with.</p>

<p>Now specific offences have specific defences. Generally, in underage sex cases genuine ignorance of the age of the person is one such defence. A court may decide that ignorance that the person was underage <em>under US law</em> may qualify for this defence.</p>


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Answer 2: <p>One line for Alice to pursue, is that <em>in general</em> a country will not extradite someone (even a citizen of the country requesting extradition) on charges that are not a crime in that country. Country X won't hold a full criminal trial to establish this, but they will have some standard (which varies according to what extradition treaties they have with the US) that extradition charges must meet in order to be considered.</p>

<p>irth's answer contains a case that may or may not be an exception to this rule (I don't know whether it was ruled that he would be extradited despite nothing having been done that Canada considers an offence, or whether Canada found a way to construe what he was charged with as being an offence). But even if the general principle doesn't always hold in Canada and didn't help that person, it may still be relevant to Country X and to Alice.</p>


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<p>So, if the act <em>is</em> a crime in country X then since it occurred in country X on the whole X won't extradite because they will instead prosecute. And if the act is <em>not</em> a crime in country X then Alice may hope that X declines to extradite. <strong>This depends entirely on the law of country X</strong> (well, plus I suppose any diplomacy the US might bring to bear against X to "encourage" a particular verdict). Firstly they must refuse to extradite such cases, and secondly they must determine that Alice's US citizenship does <em>not</em> alter the relevant age of consent for her. Even if she wins, it's still not an ideal outcome for Alice. She may find herself unable to visit any countries in which her act <em>would be</em> a crime, for fear that unlike X they would indeed arrest and extradite her to the US.</p>


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<p>So for example, suppose the US were to make it a crime for any US citizen to reside abroad (never mind whether that's constitutional: let's just say the US changes the constitution too if necessary!). Then one would <em>not</em> expect every country of the world to arrest and extradite all US citizens resident in that country, and <em>especially</em> not to do so for their own nationals who are US dual citizens. I've exaggerated the situation to something that quite clearly other countries do not considers a crime, just to remove any doubt that country X would consider the charges in the extradition request to be non-crimes.</p>


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Answer 3: <p>A perhaps better example of the general principle. It is illegal under US law for US citizens to engage in commercial bribery in a non-US country, even if such acts are not illegal under local law. (I believe that the UK has a similar law.) The country where the bribery took place might or might not extradite a person charged with such an act, but many other countries surely would, and if such a person were to visit the US s/he could surely be arrested.</p>

<p>This avoids the complications of laws about sexual acts.</p>


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Answer 4: <p>As cpast already pointed out in the comments, it would not actually be illegal under US law for an 18 year old US citizen to have sex with a 17 year old in a country whose local law permits such sexual relationships. Bob would need to be under the age of 12, or Bob would need to be under the age of 16 with Alice being at least 4 years older than Bob, in order for the US law in question to apply.</p>
<p>If Alice were 20 and Bob were 15, then it would be illegal under US law for Alice, being a US citizen, to have sex with Bob while outside the US.</p>


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<p>I'll address the issue of extradition momentarily. If Alice is in the US and is prosecuted by the US for the offence, Alice can <em>probably</em> use the fact that she didn't know she was a US citizen as a defense against 18 USC §2423(c). In <a href="https://en.wikipedia.org/wiki/Kawakita_v._United_States" rel="nofollow noreferrer"><em>Kawakita v. United States</em></a> (1952), the government was required to prove that Kawakita knew he was still a US national at the time when he committed the alleged acts, because only US nationals can commit treason against the US. <a href="https://en.wikipedia.org/wiki/Rehaif_v._United_States" rel="nofollow noreferrer"><em>Rehaif v. United States</em></a> (2019) concerned a law where one of the elements of the offense is <em>not</em> being a US national, and in fact not having a lawful status in the US. In that case, the Supreme Court held that the government must prove that Rehaif knew that he didn't have a lawful status.</p>


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<p><em>However,</em> the government could argue in the case of Alice that having US citizenship or lawful permanent resident status is a <em>jurisdictional element</em> of an offense under §2423(c) rather than a <em>material element</em>, thus distinguishing Alice's case from <em>Kawakita</em> and <em>Rehaif</em>. The prosecution is not required to prove that the defendant had knowledge of a jurisdictional element. For example, if you're smoking marijuana while strolling through a forest in Canada, and you happen to step into the United States without knowing that you've stepped into the United States, you can be convicted under US law despite the fact that you didn't know you were in the US. So, if US citizenship is held to be a jurisdictional element in §2423(c), Alice could be convicted without the government needing to prove that she knew she was a US citizen. (To be honest, I'm not sure how to tell whether it's a jurisdictional or material element. I'm not a lawyer and I've never


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without the government needing to prove that she knew she was a US citizen. (To be honest, I'm not sure how to tell whether it's a jurisdictional or material element. I'm not a lawyer and I've never been to law school. I imagine this is one of those things they teach people in law school, only for most students to forget shortly after passing the bar exam.)</p>


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<p>Regarding extradition:</p>
<h3>If the act is legal under local law</h3>
<p>Extradition is generally not required in cases where the act upon which the extradition request is based is legal under local law (the so-called <a href="https://en.wikipedia.org/wiki/Double_criminality" rel="nofollow noreferrer"><em>dual criminality</em></a> doctrine). However, some countries' laws do <em>permit</em> (not <em>require</em>) the authorities, at their discretion, to extradite people for acts that are legal under local law.</p>
<h3>If the act is illegal under local law</h3>


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<h3>If the act is illegal under local law</h3>
<p>Alice will generally be tried and punished under the law of the country where the offence occurred. Extradition treaties and domestic extradition laws usually don't require extradition in such circumstances, <em>i.e.</em>, the country where the offence occurred is not required to extradite Alice for the purposes of having her tried and punished a second time in the requesting country. Again, some countries probably <em>permit</em> (but do not <em>require</em>) the authorities to approve a request to extradite someone out of the country under such circumstances.</p>


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Question Body: <p>I have a GDPR question concerning a small non-profit organization. The organization is quite informal. Although it has many regular meetings, all these meetings are open to the public. As such, most of those who attend, even many regular attendees, are not officially registered members of the organization.</p>
<p>The organization would like to keep track of those who attend for follow-up purposes. I have three related questions about what the GDPR permits. In the first two cases, the organization does not make any formal announcement that it is tracking the attendance of whom attends. (However, attendance numbers are occasionally mentioned informally, so it is not a secret, either.)</p>


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<p>First, is it legal under the GDPR for the organization to take a count of how many people attend without recording any names? In this case, the organization groups the counts by the general age (child, teenager, or adult) and gender (male or female) of the attendees, but no names are recorded. These attendance numbers are shared among the organization members and are occasionally announced to all meeting attendees. (I would think that this is authorized.)</p>
<p>Second, is it legal under the GDPR for the organization to record the attendees by name, including their general age and gender as mentioned above? The names are obtained through informal contact with the attendees during meetings; attendees are never explicitly asked if they want their attendance recorded. These attendance lists with names are shared only among organization members on follow-up committees. (This is the main case that I have questions about under the GDPR.)</p>


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<p>Third, in case either or both of the above cases are not authorized under the GDPR, is there any legal way that attendance by name can be recorded and shared among designated organization members? The primary hesitation to formally requesting authorization is that the organization wants attendance records to be as accurate as possible and if some attendees do not grant authorization, then the records will never be accurate. I have heard that one way to accomplish this would be to verbally announce at the beginning of each meeting that attendance is recorded, or to conspicuously post a written notice to this effect at the entrance. Would either of these fulfill GDPR obligations? Or is there an alternative solution?</p>
<p>In any answer, I would appreciate it if you could cite specific relevant sections of the GDPR so that I can learn the law better.</p>


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Answer 1: <p>The scope of the GDPR is entered when personal data is being processed in a structured manner.</p>
<p>Personal data is any information relating to identifiable data subjects (definition in Art 4(1)). &quot;Peter attended the meeting on the 14th&quot; is personal data. &quot;That woman with the blue handbag said she wanted to return on the 25th&quot; is personal data. However, aggregate statistics do not relate to individuals, and are typically not personal data. &quot;On the 14th, we had 25 attendees&quot; is not personal data.</p>
<p>Not all use of personal data is within the scope of the GDPR. For example, the GDPR would not apply if two organizers talk about who attended the meeting. However, Art 2(1) says the GDPR applies when personal data</p>
<ul>
<li>is processed wholly or partially with automated means (e.g. computers, smartphones), or</li>


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<ul>
<li>is processed wholly or partially with automated means (e.g. computers, smartphones), or</li>
<li>forms a filing system or is intended for a filing system (e.g. keeping notes on attendees, keeping attendance lists)</li>
</ul>
<p>If GDPR applies, the organization would be responsible for ensuring compliance with its rules and principles, summarized in Art 5. Primarily, this means:</p>
<ul>
<li>having a clear purpose for processing</li>
<li>selecting a suitable Art 6 legal basis for that purpose (e.g. <em>consent</em> or a <em>legitimate interest</em>)</li>
<li>only processing the minimum data necessary for achieving that purpose</li>
<li>determining and implementing appropriate technical and organizational measures to ensure compliance and security of the processing activities</li>
<li>preparing for data subject rights, in particular by providing an Art 13 privacy notice when collecting data from the data subjects</li>
</ul>


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<li>preparing for data subject rights, in particular by providing an Art 13 privacy notice when collecting data from the data subjects</li>
</ul>
<p>There are of course some complexities in the details. When the legal basis is &quot;consent&quot; (opt-in), the organization would have to ensure that this consent was freely given and sufficiently informed. Per Art 7(4), consent would not be freely given if that consent was a condition for access to the meeting. Using &quot;legitimate interest&quot; (opt-out) can be more flexible, but it requires performing a balancing test to show that the legitimate interest isn't outweighed by the data subjects' interests, rights, and freedoms. Roughly, relying on a legitimate interest is appropriate when the data subjects can reasonably expect the processing activity to occur.</p>


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<p>Regarding <strong>point 1</strong>, keeping general counts and aggregate statistics about attendees is probably OK since it wouldn't be personal data. If you are very conscientious about this, you could round all counts and use categories like &quot;0-4 attendees, 5-9 attendees&quot; for each facet, which makes it more difficult to make inferences about individuals. But the fundamental point is that all your data should relate to attendees as a whole, never to individuals.</p>
<p>Regarding <strong>point 2 and 3</strong>, this is a question of legal basis. Since you gather names through informal conversations, I think that attendees would be weirded out if they learned that you kept detailed records on their attendance. So I think that you probably wouldn't have a legitimate interest here. However, being upfront with this and offering an opt-out could change this.</p>


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<p>On the aspect of keeping detailed notes on data from informal conversations, I'd like to point out H&amp;M's EUR 35 million fine back in 2020 (summary on <a href="https://gdprhub.eu/index.php?title=HmbBfDI_-_H%26M" rel="noreferrer">GDPRHub.eu</a>). In a callcenter, managers used to have conversations with employees. These conversations touched on anything from vacation experiences to health problems, marriage problems, and religious beliefs. All of that is fine. What was not fine is that the managers went full Stasi and kept detailed notes about all of this on a shared drive and used that information for management decisions. This went on until a configuration error made those files accessible to all employees. This violated all the points in the basic compliance process outlined above: the records had no clear purpose, no suitable legal basis, contained way more data than necessary (and even Art 9 special categories of data like information on health or religious beliefs which


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the records had no clear purpose, no suitable legal basis, contained way more data than necessary (and even Art 9 special categories of data like information on health or religious beliefs which have extra protection), did not have appropriate measures to prevent unauthorized access, and did not fulfill data subject rights like the Art 13 right to be informed.</p>


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<p>In case this non-profit is a church or religious organization that had its own comprehensive data protection rules before the GDPR came into force in 2018, those can continue to apply per Art 91. This could probably address some issues of legal basis, but cannot circumvent the GDPR's general principles.</p>


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Question Body: <p>I am trying to find the exact piece of New Zealand legislation that defines the immunity of judges from civil claims resulting from doing their job (or <em>any</em> immunities they may have).</p>
<p><a href="https://www.legislation.govt.nz/act/public/2016/0049/latest/whole.html#DLM6942300" rel="noreferrer">Section 23</a> of the District Court Act 2016 simply equates DC judges immunity to that of HC judges:</p>
<blockquote>
<p>A Judge has the same immunities as a High Court Judge.</p>
</blockquote>


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<blockquote>
<p>A Judge has the same immunities as a High Court Judge.</p>
</blockquote>
<p>The <a href="https://legislation.govt.nz/act/public/2016/0048/latest/whole.html#DLM5759262" rel="noreferrer">Senior Courts Act 2016</a> (which one would expect to spell out the immunities of HC judges) only says that associate HC judges enjoy the same immumities as regular HC judges (<a href="https://legislation.govt.nz/act/public/2016/0048/latest/whole.html#DLM6925904" rel="noreferrer">s 28</a>), and so do acting judges (<a href="https://legislation.govt.nz/act/public/2016/0048/latest/whole.html#DLM5759465" rel="noreferrer">s 118</a>).</p>
<p>But just <em>where</em> the HC judges' immunities are defined in the first place?</p>


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Answer 1: <p><a href="/questions/tagged/new-zealand" class="post-tag" title="show questions tagged &#39;new-zealand&#39;" aria-label="show questions tagged &#39;new-zealand&#39;" rel="tag" aria-labelledby="tag-new-zealand-tooltip-container">new-zealand</a></p>
<p>The New Zealand Supreme Court describes judicial immunity as &quot;common law doctrine&quot;:</p>
<blockquote>
<p>Judicial immunity is common law doctrine [citing to the English line of case law, including <em>Sirros</em>]. Although its existence is now acknowledged in statute, its scope remains a matter of common law.</p>
<p><em>Attorney-General v Chapman</em> <a href="http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZSC/2011/110.html" rel="noreferrer">[2011] NZSC 110</a></p>
</blockquote>
<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>
<blockquote>


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<blockquote>
<p>The immunity of superior court judges in Canada, including judges of the Quebec Superior Court, is inherited from English law.</p>
<p>(<em>Morier and Boily v. Rivard</em>, <a href="https://canlii.ca/t/1ftx7#par85" rel="noreferrer">[1985] 2 SCR 716, at paragraph 85</a>)</p>
</blockquote>
<p>That judgment goes on to cite English cases dating back to 1607, and a doctrinal text (H. Brun and G. Tremblay, <em>Droit constitutionnel</em>) also agreeing that the immunity stems from common law (translation):</p>
<blockquote>
<p>This absolute immunity is a rule of the common law applicable to superior court judges even where bad faith has been alleged.</p>
</blockquote>


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<blockquote>
<p>This absolute immunity is a rule of the common law applicable to superior court judges even where bad faith has been alleged.</p>
</blockquote>
<p>Courts in Canada have also recognized that judicial immunity is now constitutionalized, through the unwritten constitutional principle of judicial independence. See e.g. <em>Taylor v. Canada (Attorney General)</em>, <a href="https://canlii.ca/t/4l93#par58" rel="noreferrer">[2000] 3 FC 298 (C.A.) at paragraphs 58-60</a>.</p>


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Question Body: <p>With the rise of AI art generators capable of making explicit and nsfw content free of charge, I worry about the ethical and moral boundaries that come along with it. In particular, it is possible to create obscene virtual porn depicting children.</p>
<p>I have read this
<a href="https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1060&amp;context=dltr" rel="nofollow noreferrer">&quot;Virtual Child&quot; Pornography on the Internet: A &quot;Virtual&quot; Victim?</a></p>
<p>and this...
<a href="https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-child-pornography" rel="nofollow noreferrer">Citizen's Guide To U.S. Federal Law On Child Pornography</a></p>
<p>I am particularly interested in this particular example:<br />


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<p>I am particularly interested in this particular example:<br />
Bob uses such a service to indulge in a fantasy. He uses a list of known child actresses to generate obscene sexual 'art' featuring one of them. Is a law being broken? In the case of yes, who is responsible? Is the owner of the site providing the service committing an offense because they host the service and presumably train the AI, or is it Bob because he entered the tags being used to generate the 'art' which used the likeness of an actual child film star? Is this AI generated form considered to be featuring a depiction of a real child?</p>


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Answer 1: <h2>Let's clarify the point: the material is most likely illegal <em>per se</em></h2>
<p>In the laws of many jurisdictions, the definition of child pornography extends from depicting sexual acts with a minor to depicting sexual acts with an <strong>apparent</strong> minor.</p>
<p>As an extreme example: in Australia, <a href="https://www.vice.com/en/article/xgz8md/japanese-hentai-is-now-banned-in-australia" rel="nofollow noreferrer"><em>drawn sexual comics with Anime aesthetics are banned wholesale</em></a>, and <a href="https://law.stackexchange.com/questions/1279/is-virtual-child-pornography-illegal?noredirect=1&amp;lq=1">England and Wales similarly made photorealistic and even more abstract styles of such material illegal.</a> AI art would fall somewhere under those.</p>


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<p>In other countries, like the US or Japan, legality is based on the material not being <em>obscene</em>. Obscenity often is a somewhat subjective test, like in the US the standard for a time was &quot;I know it when I see it&quot; (Jacobellis v. Ohio, 378 U.S. 184 (1964)), but was refined into the <a href="https://caselaw.findlaw.com/court/us-supreme-court/413/15.html" rel="nofollow noreferrer">Miller Test</a> in 1973:</p>
<blockquote>
<ol>
<li>Obscene material is not protected by the First Amendment. Roth v. United States, 354 U.S. 476 , reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 23-24.</li>


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<li>The basic guidelines for the trier of fact must be: (a) whether &quot;the average person, applying contemporary community standards&quot; would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Pp. 24-25.</li>
<li>The test of &quot;utterly without redeeming social value&quot; articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 24-25.</li>


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<li>The test of &quot;utterly without redeeming social value&quot; articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 24-25.</li>
<li>The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a &quot;national standard.&quot; Pp. 30-34.</li>
</ol>
</blockquote>
<p>In a totally different definition, <a href="/questions/tagged/japan" class="post-tag" title="show questions tagged &#39;japan&#39;" aria-label="show questions tagged &#39;japan&#39;" rel="tag" aria-labelledby="tag-japan-tooltip-container">japan</a> has its <a href="https://www.icmec.org/wp-content/uploads/2017/08/Japan-National-Legislation.pdf" rel="nofollow noreferrer">Penal Code of Japan Section 175</a> reads (in translation) much more like a subjective test, which is often called out to demand conformity (and censor bars):</p>
<blockquote>


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<blockquote>
<p>Chapter XXII, Article 175. Distribution of Obscene Objects: A person who distributes, sells or displays in public an obscene document, drawing or other objects shall be punished by imprisonment with work for not more than 2 years, a fine of not more than 2,500,000 yen or a petty fine. The same shall apply to a person who possess the same
for the purpose of the sale.</p>
</blockquote>
<h2>Who is in possession of illegal material?</h2>
<p>This depends:</p>
<ul>
<li>IF the AI was trained on illegal material, the makers of the AI had in their possession material of which possession is illegal.</li>
<li>IF the hosting company stores the material generated by the user,
and it is of the banned type once evaluated, then the company where the image is hosted might be in possession.
<ul>


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<li>IF the hosting company stores the material generated by the user,
and it is of the banned type once evaluated, then the company where the image is hosted might be in possession.
<ul>
<li>In the US, due to <a href="https://en.wikipedia.org/wiki/Section_230" rel="nofollow noreferrer">Section 230 (of Title 47)</a>, the hosting company however is blameless for user-generated and user-stored content. The User is fully to blame.</li>
</ul>
</li>
<li>The User, by properly downloading the file actively gets into possession of illegal material, which would make them liable for that
<ul>
<li><a href="https://www.nealdavislaw.com/criminal-defense-guides/child-porn-viewing-posession.html" rel="nofollow noreferrer">Just having the file in the browser cache does not always suffice in the US</a> but courts might evaluate the evidence differently</li>
</ul>
</li>
</ul>


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Question Title: Is is illegal to hack websites in a country considered to be an enemy of my country?

Question Body: <p>I know that Hacking is illegal in any country. my question is this "is it illegal to hack enemy country website ?" e.g i lived in Pakistan, let say i hacked Indian Govt websites. is this illegal ? if this is illegal what will be fine and prison charge?</p>


Answer 1: <p>This question really depends on the specific countries involved, as all law depends on jurisdiction. However, there are essentially two ways that breaking into foreign computer systems could be illegal: 1) Your own country has laws against hacking that include hacking into foreign computers
<strong>or</strong> 2) The country you're breaking into has laws about hacking that are not limited to citizens.</p>


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<p>In the first case, your own country would find such "hacking" illegal; in the second, your target country would find such "hacking" illegal. If you violate the first, which is the less likely option, you could be traced, located and prosecuted by your own country. If you violate the second, which is the more likely option, the target country would target you for extradition and prosecution. Depending on the amount of political power your target country has, this could result in you being shipped off to another country to face their courts, without the protection of your own country.</p>

<p>In other words, it could very well be illegal, though the specific sentence resulting from such a crime is far too specific to even attempt to address in the general case.</p>


Tags: criminal-law, hacking, cybersquatting


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Question Body: <p>Some years ago, I recall a professor who announced that (in the United States) charging someone an annual interest rate of 24% or more was considered <em>usury</em>.</p>
<p>The other day, someone I know in the United States received an unsolicited offer for a Toyota credit card that specified a 31.74% annual APR interest rate for cash advances and interest rates for &quot;Toyota Rewards Visa Card Purchases&quot; raging between 20.74% and 29.74% depending upon cred &quot;worthiness.&quot;</p>
<p>QUESTION: Does this not constitute <em>usury</em> anymore in the U. S.? Does the United States have usury  laws anymore; if so, what might they be?</p>
<p>I ask this because, for example, if someone borrowed, say, $100,000 at 31.74% and paid virtually nothing on the balance, the debt would rise to $200,000 in a little over two years. This seems to me, that without just usury laws, Americans are subjected to a &quot;legal&quot; form of gouging.</p>


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Answer 1: <h2>There is no <a href="https://www.bankrate.com/finance/credit-cards/does-law-cap-credit-card-interest-rates/" rel="noreferrer">usury</a> on Credit Cards in the USA</h2>
<p>Legally, usury is charging interest rates above the mandated maximum. Due to ongoing successful lobbying by card providers, there is no maximum on credit cards. Some protections around disclosure and transparency were passed in 2009, which is why you can so easily quote the figures.</p>
<p>However, even in jurisdictions where there are caps, the rates you quote may not exceed them. For example, in Australia, the maximum rate is 48%.</p>


Tags: united-states, debt, credit-card, usury, toyota


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Question Body: <p>There are a number of companies which make their source code available in various public forums like Github or Gitlab. These products are not open source, but the source is available for public commentary or research purposes, or simply for the appearance of transparency. Of particular note, Gitlab themselves makes their enterprise edition source code <a href="https://gitlab.com/gitlab-org/gitlab/-/tree/master/ee" rel="nofollow noreferrer">available</a>.The code in this repository has a license located <a href="https://gitlab.com/gitlab-org/gitlab/-/blob/master/ee/LICENSE" rel="nofollow noreferrer">here</a>.</p>


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<p>I have usually assumed that source code licenses are only relevant in the event that you attempt to prepare a copy of the software, not if you build/otherwise use it for personal (or even organizational) purposes. Thus, my question is: can you acquire a copy of the source code for a &quot;source available&quot; product without binding yourself to the terms of the license that is distributed with that source? If you do, can you build/run it without being bound by said license?</p>


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Answer 1: <blockquote>
<p>If you do, can you build/run it without being bound by said license?</p>
</blockquote>
<p>No, you cannot. Because there is no way to &quot;build/run&quot; it without making a copy. You <em>copy</em> the sourcecode, before you can run your compiler. <em>That</em> is the copy you are making, not copying the file that results from this process.</p>


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<p>A valid question might be, are you bound by the license? Well, that is up for lawyers and a court to decide, but in all countries I know, copyright is automatic for anything worth copying. And the copyright holder can grant licenses to people to <em>allow</em> things. So arguing you are not bound by a specific license would mean you would argue that you are bound by the legal default, which in most countries is &quot;You cannot copy that. At all. Unless you have explicit permission&quot;. That argument would sound like &quot;I stole all 10, because the offer of buy-one-get-one-free was not legally binding&quot;. Maybe it wasn't. But that doesn't mean you get to do something unrelated illegal instead.</p>


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<p>Now, there are many exceptions for &quot;personal use&quot;. You can sing any song in the shower. I would assume you can compile any program there, too. You just cannot use that program for anything worthwhile, the same way you cannot record your song in the shower and sell it.</p>


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Answer 2: <p>You can do with the source code: whatever copyright law allows, and whatever a license by the copyright holder allows. Copyright law may allow you to download a copy of the source code if the copyright holder made it available voluntarily for everyone to download, that’s it.</p>
<p>There are possible exceptions for personal use, which will be highly limited, beyond that if a license sets conditions then you either follow the conditions or you cannot copy the source code. And practically anything requires copying the source code.</p>


Tags: united-states, software


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Question Body: <p>If a mobile/web developer creates an application like Uber, then sells it to a company, and the company also wants the copyrights for the application, what happens if after few months another company comes to developer and asks for a new similar application like Uber, then the developer creates a new application like Lyft and give it to the new customer/company?</p>
<p>I mean a developer may use 90% of similar codes that he used while creating Uber application for the Lyft application. In this case, can Uber company sue against the developer because they have also bought copyrights for the Uber application?</p>


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<p>It's a little bit confusing for me as a developer because most of the time we use similar codes to create similar behaviors in an application. Also the way you code is like your handwritten and you can not code similar applications in different ways, it's kinda meaningless! Because most of the time we just copy and paste similar codes that we already use in another application if we want to build something similar.</p>
<p><strong>So how does copyrights law work for the applications?</strong></p>


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Answer 1: <p>A fundamental principle of copyright law is that protection is only afforded to the concrete expression, and not the abstract idea. Therefore, if you write a sort program, what is protected is &quot;that specific program&quot;, and not the general idea of a sort program. There are many kinds of sort algorithms: if you write a bubble sort program, you don't &quot;own&quot; all bubble sort programs, you only own the one that you wrote. If you sell your right to a particular bubble sort program, you don't thereby prevent yourself from writing another bubble sort program. But, technically, you <em>do</em> prevent yourself from copying that program, changing some variable names or maybe manually recoding a couple of lines, and re-licensing the code (assuming that you fully transferred copyright, or gave the customer exclusive rights to the code).</p>


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<p>The basic question that the courts will ask is &quot;did you copy that program&quot;, which they answer by looking at the similarity between the two programs. All bubble sorts have a necessary similarity. To prove infringement, the plaintiff would (ultimately) have to prove that the similarity had to have come from copying rather than independent coincidental re-creation. Functional considerations and general programmer practice
would tend to weigh against an allegation of infringement in certain cases, where &quot;counter&quot; is a common name for a counter variable, and bubble sort is a well known algorithm with limited practical differences in lines of code.</p>


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<p>The hard part is establishing that it would be natural for such similarities to exist even when independently coded by a single person. It may be common practice to take a program that you've sold and tweak it in some fashion, but that is copyright infringement, whereas &quot;applying the lessons that you learned in writing X to a new program&quot; is not infringement, it is using the same ideas, and the ideas are not what is protected.</p>


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Answer 2: <p>If the developer sold exclusive rights to their code, their customer has grounds to sue.</p>
<p>If the developer licensed their code non-exclusively, there isn't grounds.</p>
<p>Normally, a contract developer will sell the rights, while a product-based company will license them. Of course it's common in practice to do the former, but then reuse parts of the code - there are both legal and non-legal ways to make this happen.</p>


Tags: copyright, software, business, copyright-notice, copyright-transfer


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Question Title: Why do some licenses have a clause stating that one can&#39;t violate the law?

Question Body: <p>Example of such a clause in the <a href="https://huggingface.co/spaces/CompVis/stable-diffusion-license" rel="noreferrer">Creative MLOpen RAIL-M dated August 22, 2022</a> used by <a href="https://huggingface.co/runwayml/stable-diffusion-v1-5" rel="noreferrer">runwayml/stable-diffusion-v1-5</a>:</p>
<blockquote>
<p>You agree not to use the Model or Derivatives of the Model:</p>
<ul>
<li>In any way that violates any applicable national, federal, state, local or international law or regulation.</li>
</ul>
</blockquote>
<p>I don't see the point of that clause. I.e., I don't see what would change if the clause were to be deleted. Why do some licenses have a clause stating that one can't violate the law?</p>


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Answer 1: <h2>Because breaking the law is not breach of contract</h2>
<p>(Necessarily).</p>
<p>Were you to use the model to 3D-print a gun and rob banks with it, without this clause, you have not broken the contract. That would mean that the provider could neither sue you for any damages the use of their model in your crime spree might have caused them, nor can they legally terminate the licence with you.</p>


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Answer 2: <blockquote>
<p>I don't see the point of that clause</p>
</blockquote>
<p>The point is to add a legal disclaimer in case someone uses the open source model for nefarious purposes. It's there for the same reason <code>This software is provided as-is</code> is included in all software licenses - it's a legal statement designed to avoid legal liability from the use of your program by others.</p>
<p>@DaleM mentions &quot;breach of contract&quot; as a possible reason but it's extremely unlikely anyone, anywhere will be able to recover damages as a result of misusing one's open source model. The real reason is to protect the author of the model, not to sue anyone for damages.</p>


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Answer 3: <p>Perhaps, this would protect the company from being sued.  Take a flamethrower, for example. If you burn someone's house down, that person might sue you and the flamethrower's manufacturer.</p>
<p>They could say to the manufacturer this framethrower is dangerous! How come you make such a dangerous product?  You give us money, also.</p>
<p>The manufacturer can just say, hey we had a contract with him saying he wouldn't do crime with it.  Not did we warn him not to burn your house down, we even made him sign a contract saying, he wouldn't do it.  What do you want from us? It's just him.</p>


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Answer 4: <p>In some jurisdictions (<a href="https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1962" rel="nofollow noreferrer">Germany, for example</a>) it can be illegal to create software that is intended for computer sabotage and other illegal purposes. Writing into the license agreement that using the software for illegal purposes is specifically not allowed could be in preparation of a legal defense against an accusation that the software was provided for the purpose of doing something illegal with it.</p>


Answer 5: <p>I think of two main reasons. The first one is to avoid liability for third party users breaking the law or causing damages using the licensed product. The second one is that the author of the product has moral rights over it and can prohibit anything he wants about its use. Of course it's not always easy to enforce that, but it's there at least.</p>


Tags: software, licensing, open-source-software


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Question Title: Can a song be used in a presentation for work?

Question Body: <p>Does it fall under that Fair Use Act of 1976 to include a song as the intro to a presentation for work if the presentation is being given for educational/teaching purposes?</p>


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Question Body: <p>Does it fall under that Fair Use Act of 1976 to include a song as the intro to a presentation for work if the presentation is being given for educational/teaching purposes?</p>


Answer 1: <p>The educational/teaching purposes do not apply to any copyrighted work that you chose to include in the educative material that you might produce.</p>
<p>The educational/teaching purposes means education <strong>refering to</strong> or <strong>related to</strong> the work being used.</p>
<p>If  your presentation is about the musical styles of the 70s, you can use a 70s song to show how it matches those styles, its impact, relevance... But you cannot use the same song as soundtrack in a presentation about how to properly fill the X-520 form.</p>
<p>It also usually requires some depth. So, your presentation being just &quot;These are some songs from the 70s&quot; and playing a few hours would not cut it, even if it serves for some in your public to listen (learn) new songs.</p>


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Question Title: Does contract formation require subjective &quot;meeting of the minds&quot;?

Question Body: <p>For a contract to be formed, it is said there must be a &quot;<a href="https://law.stackexchange.com/search?q=%22meeting%20of%20the%20minds%22">meeting of the minds</a>.&quot; Does this mean that the fact-finder attempts to ascertain the actual subjective intentions and understanding of the parties?</p>


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Answer 1: <p>No: &quot;meeting of the minds&quot; (also known as <em>consensus ad idem</em>) is not about what the parties actually subjectively understood or wanted.</p>
<p>For contract formation, <em>consensus ad idem</em> only requires that it appears to an objective reasonable person that the two parties were assenting to the terms of the agreement. See generally, Westlaw Canada, &quot;Contract: I.2: <a href="https://www.westlawcanada.com/academic/ced/contracts/" rel="noreferrer"><em>Consensus Ad Idem</em></a>&quot;; see also Cornell Law School, Legal Information Institute, &quot;<a href="https://www.law.cornell.edu/wex/meeting_of_the_minds" rel="noreferrer">Meeting of the Minds</a>.&quot;</p>
<p>&quot;[I]n contractual interpretation, the goal of the exercise is to ascertain the objective intent of the parties (<em>Sattva Capital Corp. v. Creston Moly Corp.</em>, 2014 SCC 53 at <a href="https://canlii.ca/t/g88q1#par49" rel="noreferrer">para. 49</a>).</p>


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<p>&quot;Evidence of one party’s subjective intention has no independent place in this determination&quot; (<em>Eli Lilly &amp; Co. v. Novopharm Ltd.</em>, <a href="https://canlii.ca/t/1fqqz" rel="noreferrer">[1998] 2 S.C.R. 129</a> at para. 54).</p>
<blockquote>
<p>It is important to note that <strong><em>consensus ad idem</em> is an objective, not a subjective test</strong>. As noted by the Alberta Court of Appeal in <em>Ron Ghitter Property Consultants Ltd. v. Beaver Lumber Company Limited</em>, 2003 ABCA 221, at para. 9, the test is whether “it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty.”</p>
<p>(<em>Silver Eagle Management Inc. v. Onoway (Town)</em>, 2011 ABQB 139 at <a href="https://canlii.ca/t/fkpt0#par60" rel="noreferrer">para. 60</a>).</p>
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