# embedding_metadata

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<p>Is my interpretation correct, and is it therefore still allowed to publish fully open datasets? As mentioned in the <a href="https://openai.com/policies/sharing-publication-policy" rel="nofollow noreferrer">Sharing policy</a> it is of course a good idea to specify in a README file (or similar) that the content was synthetically generated and attributing OpenAI for using their tools.</p>


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Answer 1: <p>The premise of &quot;open-source&quot; is that a bit imprecise, since some such licenses preclude &quot;commercial use&quot;, so first read the license. I would have to say &quot;you may not use my model for commercial purposes&quot; if that is my intent – I assume you aren't talking about a licensing restriction which I impose on the model that I create. I also assume that I did something in the course of creating the model that constitutes &quot;originality&quot;, i.e. it is not just an automatic computer response to an automatic input (I have to select some of the training data).</p>


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<p>Then it becomes a licensing question regarding your use of OpenAI to create the training data. The data itself is not (under current law) protected by copyright, but the program and its use are subject to copyright protection. I agree that OpenAI has not prohibited use of their software for commercial purposes. The data itself is not protected by copyright, because it was automatically created by a computer, and thus is not protected by copyright. An exception is that in the UK, under <a href="https://www.legislation.gov.uk/ukpga/1988/48/section/9" rel="nofollow noreferrer">§9(3)</a> of Copyright, Designs and Patents Act 1988, &quot;In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken&quot;, so the data may be protected.</p>


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<p>Nevertheless, the verbiage of the set of documents proffered as terms of use etc. by a preponderance of evidence indicates that OpenAI permits copying of data created by their program, which would thwart any attempt on their part to prohibit you from using their bot to create data that is commercially exploited, leaving aside the &quot;no-compete&quot; clause that you mentioned. Of course, you have to hire a lawyer to do a specialized analysis of your proposed use, but that is the general outline of relevant copyright law.</p>


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Question Body: <p>The short story is that I (EU citizen) booked a flight, the government imposed an entry a policy change for me post-booking, and the flight company (Lufthansa) refuses to refund me (although re-booking has been suggested). This article [1] says that I should be entitled to a refund under force of circumstances, the flight company says I am not.</p>
<p>Should I be entitled to a refund?</p>


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<p>Should I be entitled to a refund?</p>
<p>In particular, I booked a flight from Lufthansa on the July 17th. The flight date is 22nd of August. On the 17th of July, according to the official rules, I could travel to Hong Kong. However, the government announced a policy change on the 16th of August, so some days ago [2]. Starting 20th of August, people from my country can travel to Hong Kong only if they are fully vaccinated at the time of the boarding. Due to this governmental change, I am barred from boarding the flight on the 22nd of August (I am vaccinated, but the time by which I am considered to have sufficient antibodies is on the 23rd, so two weeks after my 2nd vaccination).</p>


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<p>I have requested the company for refund on three occasions (two phone calls, one chat on the website). However, I've been told that there will be no refund because I can not board due to restrictions, whilst I have been trying to repeatedly say that I am not requesting for a refund due to not reading travel restrictions, but due to an abrupt travel entry requirement for me which I could not anticipate at the time of the booking.</p>
<p>Quoting [1]:</p>
<p>&quot;According to the German travel law expert Prof. Dr. Ernst Führich, an officially imposed entry ban is a case of force of circumstances. As a result, package holidays and individually booked flights can be cancelled free of charge.&quot;</p>
<p>Do you know if I should be entitled to a refund or not?</p>


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<p>Do you know if I should be entitled to a refund or not?</p>
<p><strong>Edit:</strong> To clarify, the question is more specifically: &quot;Does a formally imposed travel entry requirement change that bars boarding of a passenger constitute unforeseeable extraordinary circumstances?&quot; Lufthansa seemingly uses the argument that covid-related flight cancellations constitute <em>unavoidable</em> extraordinary circumstances in order not to have to compensate over covid-related cancellations (rightly so). However, Lufthansa seemingly simultaneously states that a passenger cancellation due to covid-related travel requirement change (same reason) constitutes <em>avoidable</em> extraordinary circumstances. However, both stem from the same cause. How can a covid-related travel travel requirement change be unavoidable only when it cancels a flight and thus works in the favor of the flight company?</p>


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<p>[1] <a href="https://www.evz.de/en/travelling-motor-vehicles/travel-law/coronavirus-travel-advice.html" rel="nofollow noreferrer">https://www.evz.de/en/travelling-motor-vehicles/travel-law/coronavirus-travel-advice.html</a></p>


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Answer 1: <h2>You are not entitled to a refund</h2>
<p>Lufthansa stands ready, willing and able to fly you to Hong Kong - they have fulfilled their contractual obligation. The fact that you can't fly is due to your inability to comply with government requirements - it is no different than if you turned up at the airport with an expired passport.</p>
<p>While German (and Dutch) law includes the doctrine of <a href="https://dutch-law.com/force-majeure.html" rel="nofollow noreferrer">force majeure</a>, which is what Prof. Dr. Ernst Führich is referring to, it doesn't apply here. Both parties are still able to fulfil their contractual obligations - Lufthansa can provide a seat on a plane and you can pay for it - there is no contractual obligation on either of you for that seat to be occupied.</p>


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<p>Notwithstanding, the default position can be modified by contract. Lufthansa's <a href="https://www.lufthansa.com/xx/en/business-terms-and-conditions-1.html#10" rel="nofollow noreferrer">contract</a> says:</p>
<blockquote>
<p>10.2.1. We will give you a refund as set out below if we cancel a flight, fail to operate a flight according to the timetable ...</p>
</blockquote>
<p>and</p>
<blockquote>
<p>10.3.1. If you request a refund for reasons other than those mentioned under paragraph 10.2.1. of this section, the amount of the refund will thus, <strong>provided the respective fare conditions stipulate as much</strong>, correspond to:</p>
</blockquote>
<p>Airlines sell (and are allowed to sell) tickets with different conditions, including whether they are refundable or not.</p>


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Question Body: <p>I was recently thrown off an American Airlines Flight under the pretext that my suitcase had contained a laptop (information I had ill-advisedly volunteered to the lady at the desk right before boarding), leaving my pregnant wife and 2.5 year old to fly all by themselves.</p>
<p>They sent me down to passenger check-in again to get my suitcase under the pretext that having a laptop in checked luggage is a hazard. When I got down there, they sent down the wrong suitcases, and left the suitcase that contained the laptop in the belly of the airplane, and took off anyway (shocker!).</p>


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<p>I was blue with anger. Either the pretext was complete bull (which of course it was, since the TSA says that it's completely OK to have laptops in checked luggage: <a href="https://www.tsa.gov/travel/security-screening/whatcanibring/items/laptops" rel="nofollow noreferrer">https://www.tsa.gov/travel/security-screening/whatcanibring/items/laptops</a>), or they are grossly incompletent, putting my pregnant wife and kid, and the rest of the airplane in danger.</p>
<p>Is there legal recourse here?</p>


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Answer 1: <p>AA &quot;requests&quot; that you remove batteries from checked laptops and put them in carry-on luggage. You must, per their <a href="https://www.aa.com/i18n/customer-service/support/conditions-of-carriage.jsp" rel="nofollow noreferrer">contract of carriage</a>, &quot;comply with airline safety rules&quot;, and they say that they can deny you boarding if you do not comply, which includes &quot;Are uncooperative, abusive, harassing, or show the potential to be while on board&quot;. You might then hope to sue them because you didn't violate any safety policy of theirs but they denied you your seat, but there's nothing in the contract that states &quot;The following is a complete list of policies&quot;. You should discuss this in more detail with your lawyer, but on the face of it there is no legal recourse, except of course a refund.</p>


Tags: travel, air-travel


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Question Title: Can a self-represented defendant call oneself as a witness?

Question Body: <p>You see this occassionally in comedy films and I have to wonder how legal it is. If I act as my own lawyer at a trial, can I call myself to the stand as a witness? Can I refuse to answer my own questions and be a hostile witness to myself? Am I supposed to ask a question, then run and sit on the stand and answer, then dash back in front to ask my next question? Can the opposing counsel accuse me of &quot;leading the witness&quot; or &quot;badgering the witness&quot; or whatever?</p>


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Answer 1: <p>The old saying: Being your own lawyer means you have a fool as the lawyer and a fool as the client. If one fool calls the other fool as a witness, that's even more foolish. And the worst crime is annoying the judge with your antics.</p>
<p>Opposing council will just take note of every question you ask and your replies, and then call you as witness themself. And assuming they are a proper lawyer, everything they ask will be hurting you. No need to accuse you as &quot;leading&quot; or &quot;badgering&quot; the witness.</p>


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Answer 2: <p>Yes, though there is a procedure for in that doesn't involve running back and forth (don't do this as the bailiff will tackle you).</p>
<p>The defendant will almost always need to take the stand. There are two ways this can be done. Which is permitted depends on the judge.</p>
<p>The first, more common method is that the defendant gives a statement without being questioned. This would include all relevant facts that would normally be given by answers to their lawyer's questions.</p>
<p>After this statement is given, the prosecution will cross-examine as usual.</p>
<p>The second is more similar to what you describe- the defendant plays the role of asker and answerer. The defendant does not run back and forth and should probably refrain from doing a silly voice for the lawyer part but yes, they ask questions and answer them. This was used in United States v. Nivica, 887 F.2d 1110 (1st Cir. 1989).</p>


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Question Title: Legal liability of websites for text produced by chat bots such as ChatGPT

Question Body: <p>To what extent is a website hosted in the US legally liable for the output of an AI chat bot?</p>
<p>For example, if ChatGPT produced the phrase:</p>
<blockquote>
<p>kill yourself</p>
</blockquote>
<p>and OpenAI distributed this phrase to me over the internet, and I did it, could relatives hold OpenAI liable for this? As far as I understand, websites are generally liable for any content posted there, and chat bot output is part of that, whether it's AI-generated content or manually curated content.</p>


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Answer 1: <p>We do not really know, and relevant legislation is pending.</p>
<p>The most relevant case for this, where the company that is hosting the service is being held responsible for the output of the chatbot, is <a href="https://www.courthousenews.com/wp-content/uploads/2023/06/walters-openai-complaint-gwinnett-county.pdf" rel="nofollow noreferrer">MARK WALTERS vs. OpenAI, L.L.C.</a>.  This is described by <a href="https://www.theverge.com/2023/6/9/23755057/openai-chatgpt-false-information-defamation-lawsuit" rel="nofollow noreferrer">The Verge</a>:</p>
<blockquote>
<p>A radio host in Georgia, Mark Walters, is suing the company after ChatGPT stated that Walters had been accused of defrauding and embezzling funds from a non-profit organization. The system generated the information in response to a request from a third party, a journalist named Fred Riehl.</p>
</blockquote>


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<p>It seems plausible that if Open AI are held responsible in this case then they may be in your hypothetical.</p>


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Answer 2: <p>For many reasons, no. First, you yourself produced and distributed the phrase &quot;kill yourself&quot;, so you are more likely to be found to be the cause of all subsequent suicides. There are billions of potential plaintiffs who have distributed this phrase, blaming one specific entity take extraordinary evidence. Second and focusing on suicide-specific aspects, an AI has no intent (often a requirement behind laws outlawing &quot;causing&quot; a suicide), which precludes criminal liability, likewise &quot;encouraging&quot; presupposes a mental state that a program does not have.</p>
<p>One might attempt to assign liability for unleashing a &quot;dangerous object&quot;, where one can be strictly liable for damages caused by blasting or operating an oil well in downtown Dallas. The hallucinations of an AI do not rise to the level of being ultra-hazardous.</p>


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<p>Also note that Open AI does not distribute such pseudo-instructions, whereas SE does distribute user-generated content. The Open AI portal is more similar to a keyboard or computer, it is a tool that one can use to generate text, and it makes it possible to copy and redistribute said text. One cannot sue the manufacturers of typewriters and paper for making it possible to type up and disseminate the text &quot;Kill yourself&quot;.</p>
<p>Then also, if Smith used Open AI to generate text that causes death and gets sued, and plaintiff also drags Open AI into court, Smith has to shoulder all of the liability pursuant to the <a href="https://openai.com/policies/terms-of-use" rel="nofollow noreferrer">Open AI indemnification clause (§7)</a>.</p>


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Question Title: Can a lawyer at trial keep shouting objection in order to fillibuster?

Question Body: <p>Lets say that I'm at my own trial, representing myself pro se. I immediately object to something (anything at all - it doesn't matter what). If I understand correctly I can't be held in contempt - objecting to things is my right as a lawyer. The judge mumbles overruled (probably). I immediately object again with the same or similar objection, forcing the judge to again overrule. I keep on shouting objection ('tis my right as a lawyer that nobody can take away from me) - am I right in the assumption that the trial then cannot continue, since nobody else can be heard? I cant be stopped from objecting and the judge is lawbound to keep saying &quot;overruled&quot; (or &quot;sustained&quot;) until the day is over?</p>


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Answer 1: <p>I am guessing that the question is about the United States, since the &quot;objection!&quot; procedure is not the same in other places.</p>
<p>The Supreme Court has held that even though you have the right to represent yourself, this is conditional on your maintenance of proper conduct. If you disrupt proceedings and disregard judicial directions, then the judge can find you in contempt of court, just as with anybody else who was doing that.</p>


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<p>In <a href="https://supreme.justia.com/cases/federal/us/397/337/" rel="noreferrer"><em>Illinois v Allen</em>, 397 U.S. 337 (1970)</a>, a self-represented litigant &quot;started to argue with the judge in a most abusive and disrespectful manner&quot;, threatened the judge's life, and made clear that he intended to filibuster the process, saying &quot;There is going to be no proceeding. I'm going to start talking and I'm going to keep on talking all through the trial. There's not going to be no trial like this.&quot; The judge ordered him removed from the courtroom on several instances of this behavior, and also appointed professional counsel. Following a series of appeals against all this, the Supreme Court ultimately said:</p>
<blockquote>


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<blockquote>
<p>Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 464 (1938), we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course. be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.</p>


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<p>It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.
</blockquote>


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Answer 2: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>The <em>Criminal Code</em> allows a court to &quot;cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible&quot; (s. 650(2)).</p>
<p>An accused who is disrupting and paralyzing the proceedings is themself affecting the fairness of the trial:</p>
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<p>An accused who is disrupting and paralyzing the proceedings is themself affecting the fairness of the trial:</p>
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<p>The rights afforded accused persons cannot be permitted to undermine the object for which they are given – the holding of a fair trial according to law. ... “... the many safeguards built into the criminal justice system for an accused, particularly an unrepresented one, cannot be allowed to give rise to a right in an accused person to disrupt the orderly process of a trial.”</p>
<p>(<a href="https://canlii.ca/t/1hq95" rel="noreferrer"><em>R. v. Schneider</em>, 2004 NSCA 99</a>)</p>
</blockquote>
<p>The judge has many options available to them short of removal, and even after removal, there are ways to allow the accused to participate:</p>
<ul>
<li>the judge can provide instructions on procedure and what objections can be made</li>
<li>the judge can tell the accused that objections of the sort being made are not in order</li>


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<ul>
<li>the judge can provide instructions on procedure and what objections can be made</li>
<li>the judge can tell the accused that objections of the sort being made are not in order</li>
<li>the judge can order the accused to be silent</li>
<li>the judge can issue a contempt order</li>
<li>the judge remove the accused from the courtroom</li>
<li>the judge can allow the accused participate in the hearings via video and microphone, with the ability to mute the video and/or audio</li>
<li>the judge can allow them back into the courtroom with conditions</li>
</ul>


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Answer 3: <p>You do not have the &quot;right&quot; to make baseless objections, either as a defendant or as a lawyer.</p>
<p>Once the judge gets sick of you wasting the court's time, they will likely ask you to stop or be found in contempt of court.</p>


Answer 4: <h2>“'tis my right as a lawyer that nobody can take away from me”</h2>
<p>What an imagination you have!</p>
<p>You must follow the rules of the court and the judge will shut you down very quickly if you don’t.</p>


Tags: court, rules-of-court, judge


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Question Title: Therapist violates confidentiality. Any laws applicable?

Question Body: <p>A friend is doing counseling as a domestic violence victim at a domestic violence aid agency. The therapist recently disclosed her information, including what they have talked about in counseling sessions, to other people in the agency. Being confronted, the therapist pointed the finger back and accused her of false things and refused to see her again.</p>

<p>We would like to know if there are laws and regulations applicable in this situation. Are there federal level regulations applicable in this situation? The agency is responding indifferently. We are considering filing a complaint with the state board of psychology. We found several possible names on the state's professional licensing website, but can't be sure which one is the therapist, since the therapist keeps her full name from us.</p>


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Answer 1: <p>We're missing a lot of information that we'd need to offer a full answer. Here are some of the things that will probably drive the analysis:</p>

<ul>
<li>the type of counselor we're talking about;</li>
<li>the types of information the counselor disclosed;</li>
<li>the reason she disclosed it;</li>
<li>the job functions of the people to whom she disclosed it;</li>
<li>the reason the client is bothered by the disclosure.</li>
</ul>

<p>Generally speaking, a mental-health counselor has a fiduciary duty to maintain the confidentiality of patient information, but my understanding is that in most cases, the counselor would be allowed to discuss a case with colleagues for the purposes of advancing the patient's treatment. So discussing the facts of a tough case with a supervisor is not going to be as problematic as idly gossiping about clients with custodial staff.</p>


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<p>Beyond the permitted disclosures, there are also situations in which counselors are <em>required</em> to disclose confidential information, including cases where the counselor suspects child or elder abuse or where the counselor believes the client poses a danger to herself or others.</p>

<p>If the disclosure was truly not permitted, then it may be that the client has a claim for breach of fiduciary duty. In Georgia, proving that case requires evidence that:</p>

<ol>
<li>That the counselor had information relating to the client that she knew or should have known was confidential;</li>
<li>That the counselor communicated the client’s confidential information to third parties;</li>
<li>That the client did not give informed consent to the counselor’s conduct;</li>
<li>That the confidential information was not a matter of general knowledge; and</li>
<li>That the disclosure harmed the client.</li>
</ol>


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<p>As you noted, the client could also file a complaint with the state licensing board. I don't know of any federal laws or regulations that would come into play in the situation you've described.</p>


Answer 2: <p>If any of the information disclosed was <strong>Protected Health Information</strong> (PHI) under the federal HIPAA law, the disclosures <strong>might</strong> violate that law. Providers, which would usually include therapists are subject to HIPAA. However, HIPAA has several permitted grounds for disclosures, and this case might well fall under one of them.</p>


Tags: united-states, georgia, confidentiality, fiduciary-duties


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Question Title: Why aren&#39;t post-mortem records protected by HIPAA?

Question Body: <p>Looking at the question <a href="https://law.stackexchange.com/q/33230/11130">Why are toxicology reports made public?</a> and the answer provided, I have to wonder why aren't such records (autopsy results, toxicology reports, etc.) covered by HIPAA? </p>

<p>Looking at <a href="https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/health-information-of-deceased-individuals/index.html" rel="nofollow noreferrer">HHS.Gov</a> it reads:</p>

<blockquote>
  <p>The HIPAA Privacy Rule protects the individually identifiable health information about a decedent for 50 years following the date of death of the individual.</p>
</blockquote>

<p>and yet autopsy and toxicology reports are treated as 'public record'.</p>


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Answer 1: <p>HIPAA applies only to specified entities(see <a href="https://www.cms.gov/Regulations-and-Guidance/Administrative-Simplification/HIPAA-ACA/AreYouaCoveredEntity.html" rel="nofollow noreferrer">https://www.cms.gov/Regulations-and-Guidance/Administrative-Simplification/HIPAA-ACA/AreYouaCoveredEntity.html</a>); including Health Plans, Health Care Providers, Clearinghouses, and &quot;Business Associates&quot;.</p>
<p>Autopsy and toxicology records are the output not of a medical practice but of the coroner's office. The coroner is not* a health care professional; rather they are a law-enforcement official, and law enforcement are not constrained by HIPAA. Law enforcement records are often part of the public record, especially when they are attached to a court case.</p>


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<p>The office of a coroner is empowered and charged with recording deaths in their jurisdictions, and determining cause of death for violent or suspicious deaths. In some jurisdictions, they have the power to instigate investigations.  They often do this by overseeing (or, generally, in smaller jurisdictions, acting as) medical examiners and/or forensic pathologists.</p>
<p>*It is more proper to say that the coroner is not inherently a health care professional. Often, coroners may hold medical degrees. In some small (and often poor) counties, a/the local doctor does double duty. In others, the office of the coroner is combined into the office of the sheriff, and the positions are sometimes even merged into one person. In larger (and often wealthy) counties, the coroner may be a purely organizational and administrative position.</p>


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Answer 2: <p>Sharur's answer is the correct one, but I wanted to chime in to note that even when records <em>are</em> covered by HIPAA, they may still be public records nonetheless, because HIPAA includes an exception (<a href="https://www.law.cornell.edu/cfr/text/45/164.512" rel="nofollow noreferrer">45 C.F.R. § 164.512</a>) for uses &quot;required by law&quot;:</p>
<blockquote>
<p>A covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law.</p>
</blockquote>
<p>I don't know how many times this has come up, but the Ohio Supreme Court decided some time ago that this meant that HIPAA-protected records still needed to be released in response to otherwise-appropriate requests for public records under <a href="http://codes.ohio.gov/orc/149.43" rel="nofollow noreferrer">R.C. 149.43</a>:</p>
<blockquote>


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<blockquote>
<p>Our research reveals that at the time of implementing these regulations, the Department of Health and Human Services, Office of the Secretary, promulgated Standards  ... stating, “we intend 160.512(a) to preserve access to information considered important enough by state or federal authorities to require its disclosure by law.” ...</p>
<p>Similarly, in reviewing federal Freedom of Information Act requests, the secretary explains that federal FOIA requests “come within § 164.512(a) of the privacy regulation that permits uses or disclosures required by law if the uses or disclosures meet the relevant requirements of the law.” ... By analogy, an entity like the Cincinnati Health Department, faced with an Ohio Public Records Act request, need determine only whether the requested disclosure is required by Ohio law to avoid violating HIPAA's privacy rule.</p>
</blockquote>


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</blockquote>
<p><a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2006/2006-Ohio-1215.pdf" rel="nofollow noreferrer"><em>State ex rel. Cincinnati Enquirer v. Daniels</em>, 108 Ohio St. 3d 518, ¶¶ 27-28 (2006)</a>.</p>


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Question Title: Can i create a software which can store doctor prescription?

Question Body: <p>I have developed a software which can store doctors prescription digitally. wondering if there would any legal complications on it. Any laws preventing that sort of software/practice in united states. </p>

<p>the user basically would manually re-enter what is in prescription into this app.</p>


Answer 1: <p>Your basic regulatory umbrella for anything that stores, transmits or interacts with any private health information or health IT systems is <a href="https://www.hhs.gov/hipaa/index.html" rel="nofollow noreferrer">Health Information Privacy | HHS.gov</a>, as well as state authorities. There are severe penalties at the federal and state level for non-compliance and privacy breaches, and many other agencies - such as the DEA, state health departments, insurance companies - would have to be involved in testing and certification of such a App.</p>


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<p>You will simply not be able to distribute the App on Google or iTunes without their approval, and those distributors will not approve a App that has not been strictly vetted for privacy and HIPAA compliance.</p>

<p>In order to distribute such as App - with a TOS that assures personal privacy and shields you from liability (if possible) - you will need to spend hundreds of thousands of dollars on legal representation for compliance. As an example, see ohwilleke's answer to <a href="https://law.stackexchange.com/questions/22126/what-kind-of-lawyer-should-i-seek-to-understand-compliance-requirements-for-proc/22128#22128">What kind of lawyer should I seek to understand compliance requirements for processing credit cards?</a></p>


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Answer 2: <p>Prescription systems are designed to insure that a prescription can be filled only once. All the stakeholders (state health department, DEA, physicians, pharmacies) must be convinced any system will accomplish that goal. I don't know if there is a formal permit system to authorize the system.</p>

<p>If the system isn't used to fill prescriptions, but just help the patient keep track of them, there are still medical privacy issues. I don't know if there are any government permissions required before the service is offered, but the company running the service is likely to face serious consequences if the security of the system is breached (or if the company is foolish enough to share information with third parties, such as advertisers).</p>


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Answer 3: <p>Unless this software is running <strong>only</strong> on the patient's own personal computer, and is not networked anywhere, such a system in the US would need to comply with the requirements of the <a href="https://en.wikipedia.org/wiki/Health_Insurance_Portability_and_Accountability_Act" rel="nofollow noreferrer">Health Insurance Portability and Accountability Act</a>  (HIPAA). This requires that &quot;protected Health Information&quot; (PHI) be stored protected by encryption or other security methods approved by the federal government, that users of the system be restricted by enforceable contracts not to improperly access or use such information, and a number of other requirements. I work on software designed for hospitals which stores patient information, including Rx and diagnosis info, and we have to take this into account at every stage of design. The penalties for violating the HIPAA rules are sizable, potentially enough to bankrupt even a major corporation


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Rx and diagnosis info, and we have to take this into account at every stage of design. The penalties for violating the HIPAA rules are sizable, potentially enough to bankrupt even a major corporation (although they usually are not enforced to the theoretical legal limit).</p>


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<p>I do not believe that you need an advance license, but you need to review the HIPAA requirements very carefully.</p>
<p>Exactly what precautions such software would need to take would depend on how it is intended to be used, and by whom, and where PHI would be stored. This is a potentially tricky area, and you should consult both legal and software experts in the specific field of HIPAA compliance, <strong>before</strong> trying to market any such software, or load information about any real people into it. Test data about purely fictional individuals is safe.</p>
<p>If the software is to be used to trnasmit prescriptions for dispensing, there are additional state and federal requirements under the Controlled Substances act and various state laws. These may require a permit in advance, I am not sure.</p>


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Question Title: Financial Debt Transaction question, Compliance/accounting laws

Question Body: <p>I am an IT Database person at our company. Our company does not have a financial transaction interactive program for business users, to log customer debt payments or debt increases. So they are requesting me to become a bookkeeper/and manually log transactions with SQL statements (SQL is a database programming language). I have to log transactions with funky code into a database, </p>

<p>(a) Is this even legal? I have to log 1000+ transactions in a month, and if I mess up, my boss gets angry, I am not a bookkeeper. I doubt this even abides my financial compliance/GAAP accounting laws, etc. 
(b)Just curious what my legal rights are if they ever try to fire people over this?</p>


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Answer 1: <blockquote>
<p>a) Is this even legal? I have to log 1000+ transactions in a month,
and if I mess up, my boss gets angry, I am not a bookkeeper.</p>
</blockquote>
<p>No occupational licenses are required to be a bookkeeper. Unless you have a contract with your employer or a collective bargain agreement negotiated with your union that limits your responsibilities, the employer can assign you whatever duties the employer wishes.</p>
<blockquote>
<p>I doubt this even abides my financial compliance/GAAP accounting laws,
etc.</p>
</blockquote>


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<blockquote>
<p>I doubt this even abides my financial compliance/GAAP accounting laws,
etc.</p>
</blockquote>
<p>If the company is not publicly held and is not under a contractual obligation to do so, GAAP accounting is not required. What you are doing isn't inherently inconsistent with either GAAP accounting or with HIPAA (for health care information) either. GAAP accounting (which is compelled by securities laws), HIPAA and similar laws governing record keeping and databases don't govern the mechanism by which data is put into or retrieved from databases or records (other than required security measures for the data in the case of HIPAA and some banking laws) or the precise format of databases/records.</p>


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<p>The employer has made an implicit decision to do work in a stupid and inefficient way and to pay you to do it, rather than to do it in a cheaper and more conventional way, but that is the employer's prerogative. The employer would be perfectly within the law and its rights to have you use an abacus and cuneiform ledgers in mud with a stylus if it wished, so long as the ledgers were kept in a secure environment.</p>
<p>The tax laws merely require that a company keep records adequate to comply. It is poor business practice but probably not illegal. Workplace.SE would probably have suggestions about how to get an employer to be less stupid.</p>


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<p>It may even put the company at risk of liability for negligent misrepresentation to a third party causing a customer harm occurs if an error is made and then reported to a collection agency and the error prone method is found to be negligent by a judge or jury. But, it would not be illegal and would not give rise to liability, unless an error that negligently causes harm to a customer actually happens.</p>
<p>Also, first party debt collections (as opposed to debt collections through a third party debt collector) are not subject to the Fair Debt Collection Practices Act. So a mistake in a bill sent to its own client would not be actionable.</p>
<blockquote>
<p>(b)Just curious what my legal rights are if they ever try to fire
people over this?</p>
</blockquote>


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<blockquote>
<p>(b)Just curious what my legal rights are if they ever try to fire
people over this?</p>
</blockquote>
<p>If you are an employee at will (and in the U.S. you almost surely are), and you aren't in Montana (which has a requirement to fire only for good cause), the only right you have in connection with a firing for bad cause is that it entitles you to unemployment benefits which you are not entitled to receive if you quit or are laid off, and there are alternative severance pay arrangements when that is allowed by state law.</p>
<p>Also, inability to perform assigned job duties to the standard set by the employer is good cause. So, you could be fired without negative consequences for the employer if your boss gets angry. The fact that your aren't qualified for the kind of work and bad work processes your employer wants you to engage in doesn't really matter.</p>


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Answer 2: <p>The financial record keeping you are doing - under direction by management - <em>may</em> be illegal in different ways; that's hard to say without knowing more about the procedures, data storage, etc. You <em>may be immune</em> due to working under the direction of management; that's hard to say without more information on the work arrangement, your contract, your manager's instructions, etc.</p>

<p>But, the best thing to do is find free legal help and get an opinion as to if 1) the financial system is compliant with state and federal laws, and 2) how to protect yourself if you are fired as a result of questioning the work you have been instructed to do, or protecting yourself if you quit and/or blow the whistle on what has been found to be illegal activity.</p>


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<p>Check out <a href="http://www.courts.ca.gov/selfhelp-lowcosthelp.htm" rel="nofollow noreferrer">courts.ca.gov - Free and Low-Cost Legal Help</a>. You can make it clear to the organization's staff and lawyers that you do not wish your company to know you are there, and they should protect you under attorney client privilege.</p>


Tags: california, finance, debt


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Question Title: Picture of a receipt from a Doctor

Question Body: <p>I had to go several rounds with a doctor's office about them not taking my insurance and them assuring me that the copay would be a certain amount. They then charged me 20x the quoted amount. I didn't have documentation of the quote which is admittedly my fault. Lesson learned, not going back to that office and getting documented quotes in the future. </p>


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<p>My issue is that the only way I could pay the bill was to call them over the phone to provide credit card information. I asked for a receipt and the office emailed me a picture of an analog receipt that looked like it came from a cash register with my name scribbled on it. All infosec issues aside this doesn't seem like a legally binding document and it is making me very concerned especially since I am pretty sure I will want to file my taxes with this as a non reimbursed medical expense. Will the IRS take this as a legitimate receipt of medical services rendered? Are their reporting laws around this? </p>

<p>The services were rendered in New York State. </p>


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Answer 1: <h1>Is It Legally Binding?</h1>
<p>While their customer service sucks, your oral authorization of the charge is legally binding (I take payments that way almost every day in my own business, it isn't an unusual business practice in small professional businesses). You authorize oral authorization of payments over the phone in the credit card agreement that your credit card company sends you every year that you don't read and throw away.</p>
<p>The provider has to collect more information for a credit card payment over the phone than they do for an in person swipe in a credit card machine (e.g. your credit card billing address) and they are fully responsible for wrongful charges if they deal with an imposter. By regularly checking your credit card statements, you can confirm that no incorrect charges are present.</p>
<h1>Tax Issues</h1>


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<h1>Tax Issues</h1>
<p>If you want to take a tax deduction for non-reimbursed medical expenses, you simply need to tote up the amounts your are entitled to from your own records, and put it in the appropriate box on your tax forms. You don't have to attach documentation to your return.</p>
<p>If the IRS disputes your payment, you can offer up your credit card statements and your photograph of the receipts, and if necessary, medical records to show that you received the services, to show that the payment really happened and are deductible. Your credit card company's records, reflected in your monthly credit card statements, are considered very reliable for tax purposes.</p>


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<p>You have the burden of proving that the expense was incurred and is of a type that qualifies for a deduction by a preponderance of the evidence in the event that there is a dispute that is litigated, which means that you must show that it is more likely than not that you incurred a deductible expense of that kind in that amount in that tax year.</p>
<h1>Privacy Issues</h1>
<p>While there are financial information privacy issues associated with this transaction, HIPAA, which covers medical records, normally wouldn't apply to a credit card payment that indicates the person paid, the person paying, the account, the amount and the date, but not a description of the medical services provided or to whom they were provided, which is what is normally on a credit card receipt.</p>


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<p>The financial privacy issues are also partially addressed by the provider's merchant agreement with the credit card company which contains terms requiring them to maintain certain kinds of security with respect to your financial information (which is not to say that the provider actually follows all of the requirements of their merchant agreement scrupulously, which is why data breaches happen all the time in businesses both large and small).</p>


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Question Title: Can a health provider (physical or mental) contact my family to ask them questions without my permission?

Question Body: <p>Can a health provider (physical or mental) contact my family to ask them questions about me without my consent? Can they do it if they don't disclose their reasoning or any medical information and just start asking them questions?</p>

<p>For example, contacting your family and asking them if they have noticed certain symptoms you may have.</p>


Answer 1: <p>I'm an emergency medical technician in Vermont. In an emergency, information may be shared with anyone likely to be able to help. For example, I knock on a door and ask</p>

<p>"Did you call for an ambulance?"</p>

<p>"No."</p>

<p>"Is this 178 Lake drive?"</p>

<p>"No, this is 182."</p>

<p>"Do you know where 178 is?"</p>


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Answer 2: <p>Questions by a health provider are very likely to reveal some health-related information about you. The mere fact that you have consulted a particular provider is generally considered protected health information (PHI). The nature of the question is likely to reveal additional info, unless perhaps it is asking only for demographic info such as your age, or contact info for you. Just what info would be revealed depends on the specific question or questions asked, but under HIPAA information may be considered to be &quot;revealed&quot; by implication, even if it is not explicitly stated. If someone hearing all of the question(s) asked could plausibly conclude something about your health, such as your diagnosis or symptoms, that such a person would not have known otherwise, then it has been revealed.</p>


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<p>In general a provider may not reveal PHI without the consent of the patient. A parent or guardian may give consent for an underage child. The holder of a PoA or healthcare proxy may give consent if the document authorizes this. A guardian may consent for someone who is legally incompetent.</p>
<p>There are specific circumstances under which info may be revealed without consent. For example, it may be given to a billing service so that you can be billed. Info may be given to affiliated providers who are being consulted on your case. (for these you must be informed of the possibility in advance, usually when first seeing the provider.) It may be given to an insurance company so that a claim may be filed and paid. If there is reason to believe that you are a danger to yourself or others, info may be given to emergency services as needed. <strong>Edit:</strong> It may be shared for any reasonable purpose in the event of an emergency, and there are other exceptions.</p>


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<p>And of course if you signed a consent form in advance, info may be given in accord with that form.</p>
<p><strong>Edit:</strong> None of the obvious exceptions seem to apply here, but without specifics one cannot be sure.</p>
<p>The potential penalties for violating HIPAA restrictions are quite sizable, although there is a great deal of discretion in what penalties will actually be imposed, if any.</p>


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Question Body: <p>I work for a company that services schools across the US and we receive email communications from them all the time.</p>
<p>On occasion I receive emails with blocks such as the following in their signatures:</p>
<blockquote>
<p>PRIVACY &amp; CONFIDENTIALITY OF INFORMATION NOTICE: This communication may contain non-public, confidential, or legally privileged information intended for the sole use of the designated recipient (s). If you are not the intended recipient, or have received this communication in error, please notify the sender immediately by reply e-mail or by telephone and delete all copies of the communication, including attachments, without reading them or saving them to disk. If you are the intended recipient, you must secure the contents in accordance with all applicable state or federal requirements related to the privacy and confidentiality of information, including the FERPA and HIPAA Privacy guidelines.</p>


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<p>Under Florida law, e-mail addresses, and all forms of communications,
including e-mail communications, made or received in connection with
the transaction of School Board business are public records, which
must be retained as required by law and must be disclosed upon receipt
of a public records request, except as may be excluded by federal or
state laws. If you do not want your e-mail address released in
response to a public records request, do not send electronic mail to
this entity. Instead, contact this office by phone.</p>
</blockquote>
<p>My question regards the tail ends of both paragraphs. In both cases is appears that I'd be subject to binding by law or reductions in my privacy due to an email I may never have requested. In particular the first paragraph suggests that a public entity could contact me(provided they intended to) and I can then become responsible for securing the contents of an email I may never have requested or anticipated.</p>


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<p>The second paragraph seems to suggest that my email address could become public record if I responded to a message sent in error(it lacks the clause about intended recipient). It seems backwards to make my information public based on interacting <em>at all</em> with the sender of an email I received.</p>
<p>The precise question is this: Can this school cause me to come under the authority of Florida public records law or make me subject to disclosure agreement regarding the information simply by sending it to me? Is there any requirement for at least implied consent?</p>
<p>(In case it matters, I don't have any great need to do so, I'm just curious at the presumptive language used in the notice).</p>


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<p>(In case it matters, I don't have any great need to do so, I'm just curious at the presumptive language used in the notice).</p>
<p>Edit: The linked answer provides information for one of the clauses and suggests a possible answer for the rest, but doesn't provide for the disclosure clause regarding my own email. I've edited the question to try to twine them together more clearly. The whole concern is the ability of another entity to essentially opt me into an agreement, wherein the only real consent is opening a communication I received to see what it might be.</p>


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Answer 1: <p>The second paragraph actually says that your e-mail address <em>will</em> become public record if you send an e-mail message to them.  That's because there's a Florida law that requires this.  If you want to communicate with the school without your e-mail address appearing in the public record, you can call on the telephone, send postal mail, or visit in person.</p>

<p>The notice is precisely there to inform you of the fact that sending e-mail to the school will have this effect, and it helpfully mentions one of the ways you can avoid that outcome:</p>

<blockquote>
  <p>If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone.</p>
</blockquote>


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<p>If you think about the nature and purpose of public records laws, you will perhaps understand why the Florida law does not speak of consent or allow those corresponding with affected entities to opt out.  If that were possible, then people who were conducting improper business with the public entities would withhold consent or otherwise opt out, making the public records law useless in the service of its goal of increasing transparency in government.</p>


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Answer 2: <p>As phoog correctly states, if you reply to an email from a state agency, the entire message minus statutorily restricted information is subject to disclosure under Florida <a href="http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&amp;URL=0100-0199/0119/0119.html" rel="nofollow noreferrer">public records law</a>, as long as the record (portion) is not exempted (confidential information may be redacted). It is reasonable to think (based on a reading of things exempted) that an email address is non-exempt, but that is not absolutely guaranteed. You should read their statement in para 2 as an interpretation of what the law requires. That law does not require you to do anything, instead, the school will do something if they are told to.</p>


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<p>The tail of the first paragraph is somewhat deceptive. Whether or not you are the intended recipient, you "must" secure the contents in accordance with all applicable law. They do not actually state that any law is applicable to you. HIPAA and FERPA do not impose any requirements on "ordinary folks", they impose requirements on state agencies, educational institutes, medical practitioners, and so on. But, you are not interacting with them as "ordinary folks", you are doing so in connection with a business, and businesses are regulated. So in fact there <em>are</em> restrictions, HIPAA and FERPA being prominent, on dealing with emails, intended or not, which contain confidential information.</p>


Tags: united-states, email


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Question Title: Can a U.S. business store mail on a server outside the U.S.?

Question Body: <p>If you are a business incorporated/registered in the US, is it currently (Feb. 28 2018) legal to store emails on mail servers outside the US?</p>


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Answer 1: <p>In the absence of national security concerns, it is legal to store emails on mail servers outside the US. This is true <a href="https://law.stackexchange.com/questions/25636/for-hipaa-does-us-patient-data-have-to-stay-on-us-servers/25692#25692">even of information protected by HIPAA</a>.</p>


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<p>This is a good thing, because the way the Internet works is a sort of pony express style network. Your email goes from server to server to server, potentially all over the world even if the sender and recipient of the email are not too far from each other in the same country, by a route that only the most sophisticated techies can even determine, and spends time in all of the unknown servers it crosses through en route. An email I send from Denver to my brother in Boston could easily detour through servers in Canada and Iceland en route, for example. So, if it was illegal for a U.S. business to have an email on a non-U.S. server, it could easily violate the law every day without even knowing it.</p>


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<p>Defense contractors and intelligence agency contractors would typically be subject to much more stringent cyber security requirements set forth in their contracts and mandated by various DOD and intelligence agency regulations which might prohibit storing emails on mail servers outside the U.S. The exact details of those requirements typically aren't publicly available to people who do not have security clearances, and might involve crypto standards rather than the physical locations of the servers used, for example.</p>


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<p>Note, however, that the fact that server is outside the U.S. would not relieve the U.S. based business of the obligation to comply with subpoenas and other legal process related to data in foreign servers which they control. Generally, court orders act on the person and subject that person to penalties if they fail to comply, rather than upon the thing involved in a direction to comply with court process. But, if the information was in foreign servers, a subpoena to get the information might have to be aimed at the U.S. company, rather than the foreign server management company in the absence of a cumbersome process called issuance of letter rogatory.</p>


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<p>Similarly, the U.S. business would not be immune from liability, for example, under U.S. child pornography laws, simply because the U.S. business had emails and data on a server outside the U.S. rather than in the U.S., at least, if the U.S. person or business could effectively exercise control over that data, in the eyes of a judge.</p>
<p>A final point worth noting is that it would be much easier for the NSA to obtain legal authority to hack email of a U.S. business on foreign servers than it would be for the NSA to get legal permission to hack the email of a U.S. business on domestic servers. As far as U.S. intelligence agencies are concerned, almost all non-U.S. sources are legitimate hacking targets for any alleged intelligence objective, read very leniently.</p>


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Question Title: what are the fines for negligent administration of social security numbers?

Question Body: <p>Years ago (about 2001) I read a USC statute that stated that the fine for negligent storage of social security number could result in a $10k 'per record' fine.</p>
<p>I have been looking for this USC or anything like it now and find nothing.</p>
<p>What is the CFR code or USC federal statute that implements a fine for negligent storage social security numbers (private personal data) on a database or computer, especially pertaining to HIPAA?</p>


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Answer 1: <p>It's hard to prove nonexistence when it comes to federal law, but as far as I can tell there is no federal fine for negligently storing a social security number. States are another matter, though most state laws pertain to sending material with a social security number on it (see <a href="https://www.cga.ct.gov/2011/rpt/2011-R-0369.htm" rel="nofollow noreferrer">this report</a> on Connecticut law and associated fines). HIPAA also requires that personal information be stored securely, and a social security number (and all sorts of other information) would be an example of protected information. There is a civil penalty of $100 for an unknowing violation, a disclosure that the entity is unaware of and could not have realistically avoided, had a reasonable amount of care had been taken to abide by HIPAA Rules. For "willful neglect" the penalty is $10K minimum (here is <a href="https://www.gpo.gov/fdsys/pkg/FR-2013-01-25/pdf/2013-01073.pdf" rel="nofollow noreferrer">the


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been taken to abide by HIPAA Rules. For "willful neglect" the penalty is $10K minimum (here is <a href="https://www.gpo.gov/fdsys/pkg/FR-2013-01-25/pdf/2013-01073.pdf" rel="nofollow noreferrer">the rule</a>, and the part of CFR that gives these amounts is <a href="https://www.law.cornell.edu/cfr/text/45/160.404" rel="nofollow noreferrer">45 CFR 160.404</a>).</p>


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Question Title: Can HIPAA be waived by contract with doctor and what constitutes one&#39;s &#39;medical status&#39;?

Question Body: <p>I was at a doctor’s office, and in all of those forms was something that said something along the lines of <code>I authorize the doctor to discus my medical status as his patient with government agencies.</code> However, I know that I would generally need to authorize such a release of my medical records. Does this actually void such rights?</p>

<p>When I go to <a href="http://www.hhs.gov/hipaa/for-individuals/notice-privacy-practices/" rel="nofollow noreferrer">http://www.hhs.gov/hipaa/for-individuals/notice-privacy-practices/</a> , it explains that</p>

<blockquote>
  <p>Signing [a doctor's privacy policy] does not mean that you have agreed to any special uses or
  disclosures (sharing) of your health records.</p>
</blockquote>


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<blockquote>
  <p>Signing [a doctor's privacy policy] does not mean that you have agreed to any special uses or
  disclosures (sharing) of your health records.</p>
</blockquote>

<p>However, this wasn't a privacy policy. It was on the same page as other legal clauses about arbitration in the event of a dispute, etc...</p>

<p>I suppose this is a two-part question: </p>

<p>1) Does "medical status" include past diagnoses that are no longer being treated by the doctor? (Eg. suppose someone has arthritis but is no longer treated for it by the doctor. Is this medical history part of their "medical status"?)</p>

<p>2) Does signing such a release actually allow the doctor to release such records without additional consent?</p>


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Answer 1: <p><a href="http://www.ecfr.gov/cgi-bin/text-idx?SID=cd65fda336073127c9ca168b477e414e&amp;mc=true&amp;node=sp45.1.164.e&amp;rgn=div6" rel="nofollow noreferrer">HIPAA privacy regulations</a> do not rely on the term "status", but it is used as an ordinary-language way of talking about a person's condition. A full medical record is pretty detailed, and the restrictions on disclosure are not just on records. A doctor can't tell a friend health-status thing like "He has 2 months to live" or "He broke his arm", without the consent of the covered entity (a.k.a. patient). The two main elements that go into a doctor talking about a patient are patient consent and relevance (<a href="https://www.gpo.gov/fdsys/pkg/CFR-2003-title45-vol1/xml/CFR-2003-title45-vol1-sec164-510.xml" rel="nofollow noreferrer">subsection (b) here</a>). It could be relevant to discuss payment options with adult family members, but not with children or the taxi driver. There should be more detailed information


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noreferrer">subsection (b) here</a>). It could be relevant to discuss payment options with adult family members, but not with children or the taxi driver. There should be more detailed information to go with the form you signed which would explain why they would ever talk to a government agency, though often you get a sheaf of paper and corresponding prompts on a signature pad.</p>


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Answer 2: <p>The clause does not say what you think it does. Your status is either "current patient" or "former patient".</p>


Tags: contract-law, privacy, health


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Question Title: What determines the valid jurisdiction for a subpoena for written information collected by a 3rd party who has connections to multiple jurisdictions?

Question Body: <p>Which of the following affect the valid jurisdiction:</p>

<ul>
<li>The location of the collecting party?

<ul>
<li><em>What if the party (resides/does business/practices/is licensed) in more than one state?</em></li>
</ul></li>
<li>The location where the information was collected?

<ul>
<li><em>What if it was collected via some form of telecommunication from parties in other locations?</em></li>
</ul></li>
<li>The location where the information is stored?

<ul>
<li><em>What if it is stored in an online cloud service, where the physical location(s) of the data may not be easily determined or may change at
any time?</em></li>
</ul></li>
<li>The party holding the information, if it is different from
the collector (e.g. an archival service)?</li>
</ul>


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<p>If more than one of these factors is relevant, does one take precedence? Can there be multiple valid jurisdictions?</p>

<p>If the type of information being subpoenaed is pertinent, I'm specifically interested in the case of mental health records, but if there is a general case that is the same or similar, please discuss that too, pointing out any differences.</p>

<p>If the answer is different for state vs. federal law, please point out the differences, where possible.</p>

<p>EDIT: Just to clarify, this is a theoretical question. I am researching the extents to which the protections on <em>protected health information (PHI)</em> in the United States can be overridden in legal actions, and how that varies with location, especially in the context of today's connected society.</p>


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<p>From Dale M's answer below, it appears this is not clear cut, so it would be useful if anyone can provide citations relevant to the subpoena of medical and mental health records, especially in situations where:</p>

<ul>
<li>The medical professional who generates the records in licensed in
more than one state</li>
<li>The medical professional who generates the
records practices in more than one state</li>
<li>The patient saw the medical
professional at his/her practice in state A, but the patient resides
in state B</li>
<li>The records are stored with a third party in one or more
states other than that of the medical professional</li>
</ul>


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Answer 1: <p>Typically, a person (including a corporate person) is subject to a jurisdiction if they have a connection to it. Doing business within it is certainly a connection, so the jurisdictions of the business and the customer are both applicable. Similarly, where the information is can trigger jurisdiction. The person who has custody may also trigger jurisdiction.</p>

<p>Lack of jurisdiction is grounds for a court refusing to issue or the served person to challenge a subpoena. The court will decide if the person is or is not subject to their jurisdiction. They are usually pretty liberal in this decision: if they can justify a connection then they have jurisdiction.</p>

<p>Of course, having jurisdiction and being able to enforce their writs are two different things, particularly if the connection is slight. This will boil down to the degree of cooperation between jurisdictions and if another jurisdiction will enforce the other's claim to jurisdiction.</p>


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Answer 2: <p><strong>General Rules</strong></p>
<p>Operationally, the limitations imposed by the court rules of the court where a lawsuit is pending governing subpoenas (Federal Rule of Civil Procedure 45 in federal civil lawsuits and similar rules in most state court sytems) are more restrictive than the limitations imposed on jurisdiction in civil lawsuits generally by the due process clauses of the 5th and 14th Amendments of the  United States Constitution which govern jurisdiction in civil lawsuits generally. (Subpoenas in criminal lawsuits and subpoenas issued by administrative agencies are beyond what is reasonably considered in this answer.)</p>
<p>Generally what matters is: where a person resides, is employed or regularly conducts business (any of these suffice); where the subpoena directs the person to comply; and the burden imposed.</p>


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<p>Generally what matters is: where a person resides, is employed or regularly conducts business (any of these suffice); where the subpoena directs the person to comply; and the burden imposed.</p>
<p>So, basically, the only important factor is the residence or business address of &quot;The party holding the information&quot; (with &quot;holding&quot; defined as having &quot;possession, custody or control&quot; of the information where ever it may be physically located) in relation to the place where the information sought is to be produced.</p>
<p>Sometimes exceptions to the general rule may be made on a case by case basis by someone subject to a subpoena based upon hardship in this particular instance. The other three factors that you suggest are basically irrelevant unless the subpoena directs a physical inspection of something or someplace, in which case the location of the thing or place is what usually matters.</p>


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<p>Usually, under evolving jurisdictional laws set by the U.S. Supreme Court, entities are deemed to reside at their headquarters and if different also at the office of their registered agent to receive service of legal process in the state under whose laws they are formed. Sometimes, this is defined more broadly.</p>
<p>In the case of an entity, normally, the person subject to a subpoena would be the custodian of the records of the entity that provides them, and if that person is unknown, the subpoena would often be a two step process with step one being an order directing the entity subject to the subpoena to designate a human being as a custodian of the records requested who must actually be able to obtain access to the records, and the second step being a subpoena directed at the custodian. This is because the usual consequence for failing to comply with a third party subpoena is for an arrest warrant to issue for the non-compliant custodian of records.</p>


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<p>In the case of mental health records, a subpoena could be directed either at the custodian of those records or in the alternative to someone who has authority to access those records.</p>
<p><strong>Conflict of Laws Issues</strong></p>
<p>But, any request for a mental health record would be subject to defenses of doctor-patient privilege and HIPAA privacy laws (in the U.S.) and the former would be resolved based upon the relevant state law (which is often a quite mushy question that can turn on a great many relevant facts such as the ones you identify) by the Court with jurisdiction under Rule 45 or the equivalent over the person compelled by the subpoena to produce the records.</p>


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<p>The question of whose doctor-patient privilege laws to apply is called a &quot;conflict of laws&quot; question as opposed to a jurisdiction or civil procedure question - which courts can be applied to in order to make the decision is usually pretty clear, but which law that court will chose to use in the case is often mushy in cases with complicated facts like the ones mentioned in the question and the outcome of a conflict of law issue is often very difficult to predict.</p>
<p>Fortunately, often the conflict of law issue won't matter. This is because the substantive law is frequently very similar in all of the relevant jurisdictions in subpoena cases because almost all state laws on the question are derived from a shared common law legal tradition that predates American independence and from a shared federal case law on the scope of legal privileges not to respond to subpoenas that state courts emulate even when they are not required by the constitution to do so.</p>


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<p><strong>Interstate and International Subpoenas Originating In State Courts</strong></p>
<p>The structure is a bit different in international and interstate cases than in Federal Rule of Civil Procedure 45 quoted below.</p>
<p>If a person subject to a subpoena is in another state in a state court lawsuit, or is in another country, the court where the case is pending exchanges &quot;letters rogatory&quot; with a civil court whose territorial jurisdiction includes the part of the state or country where the person subject to the subpoena is located and the actual subpoena is issued by the receiving court in a summary proceeding (compliance in mandatory in another state due to the full faith and credit clause of the constitution and is voluntary and based on international comity or international treaties in international cases). This process is slow and expensive and often cannot be completed in time for a trial in a state court case unless commenced as soon as possible.</p>


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<p><strong>Appendix</strong></p>
<p>Federal Rule of Civil Procedure 45 states in the pertinent parts that:</p>
<blockquote>
<p>Rule 45. Subpoena</p>
<p>(a) In General.</p>
<p>(1) Form and Contents.</p>
<p>(A) Requirements -In General. Every subpoena must:</p>
<p>(i) state the court from which it issued;</p>
<p>(ii) state the title of the action, and its civil-action number;</p>
<p>(iii) command each person to whom it is directed to do the following
at a specified time and place: attend and testify; produce designated
documents, electronically stored information, or tangible things in
that person's possession, custody, or control; or permit the
inspection of premises; and</p>
<p>(iv) set out the text of Rule 45(d) and (e) .</p>
<p>(B) Command to Attend a Deposition -Notice of the Recording Method. A
subpoena commanding attendance at a deposition must state the method
for recording the testimony.</p>
<p>(C) Combining or Separating a Command to Produce or to Permit


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subpoena commanding attendance at a deposition must state the method
for recording the testimony.</p>
<p>(C) Combining or Separating a Command to Produce or to Permit
Inspection; Specifying the Form for Electronically Stored Information.
A command to produce documents, electronically stored information, or
tangible things or to permit the inspection of premises may be
included in a subpoena commanding attendance at a deposition, hearing,
or trial, or may be set out in a separate subpoena. A subpoena may
specify the form or forms in which electronically stored information
is to be produced.</p>
<p>(D) Command to Produce; Included Obligations. A command in a subpoena
to produce documents, electronically stored information, or tangible
things requires the responding person to permit inspection, copying,
testing, or sampling of the materials.</p>
<p>(2) Issuing Court. A subpoena must issue from the court where the
action is pending.</p>


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testing, or sampling of the materials.</p>
<p>(2) Issuing Court. A subpoena must issue from the court where the
action is pending.</p>
<p>(3) Issued by Whom. The clerk must issue a subpoena, signed but
otherwise in blank, to a party who requests it. That party must
complete it before service. An attorney also may issue and sign a
subpoena if the attorney is authorized to practice in the issuing
Court.</p>
<p>(4) Notice to Other Parties before Service. If the subpoena commands
the production of documents, electronically stored information, or
tangible things or the inspection of premises before trial, then
before it is served on the person to whom it is directed, a notice and
a copy of the subpoena must be served on each party.</p>
<p>(b) Service.</p>
<p>(1) By Whom and How; Tendering Fees. Any person who is at least 18
years old and not a party may serve a subpoena. Serving a subpoena
requires delivering a copy to the named person and, if the subpoena


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years old and not a party may serve a subpoena. Serving a subpoena
requires delivering a copy to the named person and, if the subpoena
requires that person's attendance, tendering the fees for 1 day's
attendance and the mileage allowed by law. Fees and mileage need not
be tendered when the subpoena issues on behalf of the United States or
any of its officers or agencies.</p>
<p>(2) Service in the United States. A subpoena may be served at any
place within the United States.</p>
<p>(3) Service in a Foreign Country. 28 U.S.C. §1783 governs issuing and
serving a subpoena directed to a United States national or resident
who is in a foreign country.</p>
<p>(4) Proof of Service. Proving service, when necessary, requires filing
with the issuing court a statement showing the date and manner of
service and the names of the persons served. The statement must be
certified by the server.</p>
<p>(c) Place of Compliance.</p>
<p>(1) For a Trial, Hearing, or Deposition. A subpoena may command a


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service and the names of the persons served. The statement must be
certified by the server.</p>
<p>(c) Place of Compliance.</p>
<p>(1) For a Trial, Hearing, or Deposition. A subpoena may command a
person to attend a trial, hearing, or deposition only as follows:</p>
<p>(A) within 100 miles of where the person resides, is employed, or
regularly transacts business in person; or</p>
<p>(B) within the state where the person resides, is employed, or
regularly transacts business in person, if the person:</p>
<p>(i) is a party, or a party's officer; or</p>
<p>(ii) is commanded to attend a trial and would not incur subsantial
expense.</p>
<p>(2) For Other Discovery.</p>
<p>A subpoena may command:</p>
<p>(A) production of documents, electronically stored information, or
tangible things within 100 miles of where the person resides, is
employed, or regularly transacts business in person; and</p>
<p>(B) inspection of premises at the premises to be inspected.</p>


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tangible things within 100 miles of where the person resides, is
employed, or regularly transacts business in person; and</p>
<p>(B) inspection of premises at the premises to be inspected.</p>
<p>(d) Protecting a Person Subject to a Subpoena; Enforcement.</p>
<p>(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
responsible for issuing and serving a subpoena must take reasonable
steps to avoid imposing undue burden or expense on a person subject to
the subpoena. The court for the district where compliance is required
must enforce this duty and impose an appropriate sanction - which may
include lost earnings and reasonable attorney's fees - on a party or
attorney who fails to comply.</p>
<p>(2) Command to Produce Materials or Permit Inspection.</p>
<p>(A) Appearance Not Required. A person commanded to produce documents,
electronically stored information, or tangible things, or to permit
the inspection of premises, need not appear in person at the place of


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electronically stored information, or tangible things, or to permit
the inspection of premises, need not appear in person at the place of
production or inspection unless also commanded to appear for a
deposition, hearing, or trial.</p>
<p>(B) Objections. A person commanded to produce documents or tangible
things or to permit inspection may serve on the party or attorney
designated in the subpoena a written objection to inspecting, copying,
testing or sampling any or all of the materials or to inspecting the
premises - or to producing electronically stored information in the
form or forms requested. The objection must be served before the
earlier of the time specified for compliance or 14 days after the
subpoena is served. If an objection is made, the following rules
apply:</p>
<p>(i) At any time, on notice to the commanded person, the serving party
may move the court for the district where compliance is required for
an order compelling production or inspection.</p>


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<p>(i) At any time, on notice to the commanded person, the serving party
may move the court for the district where compliance is required for
an order compelling production or inspection.</p>
<p>(ii) These acts may be required only as directed in the order, and the
order must protect a person who is neither a party nor a party's
officer from significant expense resulting from compliance.</p>
<p>(3) Quashing or Modifying a Subpoena .</p>
<p>(A) When Required. On timely motion, the court for the district where
compliance is required must quash or modify a subpoena that:</p>
<p>(i) fails to allow a reasonable time to comply;</p>
<p>(ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c);</p>
<p>(iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or</p>
<p>(iv) subjects a person to undue burden.</p>
<p>(B) When Permitted. To protect a person subject to or affected by a


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no exception or waiver applies; or</p>
<p>(iv) subjects a person to undue burden.</p>
<p>(B) When Permitted. To protect a person subject to or affected by a
subpoena, the court for the district where compliance is required may,
on motion, quash or modify the subpoena if it requires:</p>
<p>(i) disclosing a trade secret or other confidential research,
development, or commercial information; or</p>
<p>(ii) disclosing an unretained expert's opinion or information that
does not describe specific occurrences in dispute and results from the
expert's study that was not requested by a party.</p>
<p>(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(d)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions if the serving party:</p>
<p>(i) shows a substantial need for the testimony or material that cannot
be otherwise met without undue hardship; and</p>


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conditions if the serving party:</p>
<p>(i) shows a substantial need for the testimony or material that cannot
be otherwise met without undue hardship; and</p>
<p>(ii) ensures that the subpoenaed person will be reasonably
compensated.</p>
<p>(e) Duties in Responding to a Subpoena.</p>
<p>(1) Producing Documents or Electronically Stored Information. These
procedures apply to producing documents or electronically stored
information:</p>
<p>(A) Documents. A person responding to a subpoena to produce documents
must produce them as they are kept in the ordinary course of business
or must organize and label them to correspond to the categories in the
demand.</p>
<p>(B) Form for Producing Electronically Stored Information Not
Specified. If a subpoena does not specify a form for producing
electronically stored information, the person responding must produce
it in a form or forms in which it is ordinarily maintained or in a
reasonably usable form or forms.</p>


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electronically stored information, the person responding must produce
it in a form or forms in which it is ordinarily maintained or in a
reasonably usable form or forms.</p>
<p>(C) Electronically Stored Information Produced in Only One Form. The
person responding need not produce the same electronically stored
information in more than one form.</p>
<p>(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored
information from sources that the person identifies as not reasonably
accessible because of undue burden or cost. On motion to compel
discovery or for a protective order, the person responding must show
that the information is not reasonably accessible because of undue
burden or cost. If that showing is made, the court may nonetheless
order discovery from such sources if the requesting party shows good
cause, considering the limitations of Rule 26(b)(2)(C). The court may
specify conditions for the discovery.</p>


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order discovery from such sources if the requesting party shows good
cause, considering the limitations of Rule 26(b)(2)(C). The court may
specify conditions for the discovery.</p>
<p>(2) Claiming Privilege or Protection.</p>
<p>(A) Information Withheld. A person withholding subpoenaed information
under a claim that it is privileged or subject to protection as
trial-preparation material must:</p>
<p>(i) expressly make the claim; and</p>
<p>(ii) describe the nature of the withheld documents, communications, or
tangible things in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.</p>
<p>(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as
trial-preparation material, the person making the claim may notify any
party that received the information of the claim and the basis for it.


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trial-preparation material, the person making the claim may notify any
party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has; must not use
or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it
before being notified; and may promptly present the information under
seal to the court where compliance is required for a determination of
the claim. The person who produced the information must preserve the
information until the claim is resolved.</p>
<p>(f) Transferring a Subpoena-Related Motion. When the court for the
district where compliance is required did not issue the subpoena, it
may transfer a motion under this rule to the issuing court if the
person subject to the subpoena consents or if the court finds


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district where compliance is required did not issue the subpoena, it
may transfer a motion under this rule to the issuing court if the
person subject to the subpoena consents or if the court finds
exceptional circumstances. Then, if the attorney for the person
subject to the subpoena is authorized to practice in the court where
the motion was made, the attorney may file papers and appear on the
motion as an officer of the issuing court. To enforce its order, the
issuing court may transfer the order to the court where the motion was
made.</p>
<p>(g) Contempt. The court for the district where compliance is required</p>
<ul>
<li>and also, after a motion is transferred, the issuing court - may hold in contempt a person who, having been served, fails without
adequate excuse to obey the subpoena or an order related to it.</li>
</ul>
</blockquote>


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Question Title: Do parents have access to an adult child&#39;s childhood medical records

Question Body: <p>After my child turns 18, I know I am blocked from seeing any new medical records, unless they give explicit permission.  However, does that mean I am blocked from their pediatric medical records?</p>
<p>Their pediatric provider sent me their complete vaccination record for our records, but they are now over 18. Is this a violation of HIPAA?  I tried reading the rules and regulations, but I couldn't parse out this situation.  If it is a violation, can you point at the regulation?</p>
<p>If it is a violation, I'd like to inform the provider, so they don't continue this mistake.</p>
<p>(To be clear, I have a release, and permission from our adult child, but the provider wouldn't know that.)</p>


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Answer 1: <p>Late to the party, but I'll answer anyways.</p>
<p>In general, providers have a lot of wiggle room when sharing information with parents, on condition that the patient hasn't explicitly objected despite having opportunity to do so.  HIPAA allows the provider to make a judgment call on whether such information can be shared without explicit consent:</p>
<p>Quoting <a href="https://www.govinfo.gov/content/pkg/CFR-2003-title45-vol1/xml/CFR-2003-title45-vol1-sec164-510.xml" rel="nofollow noreferrer">Title 45 § 164.510</a> :</p>
<blockquote>
<p>(i) Obtains the individual's agreement;<br />
(ii) Provides the individual with the opportunity to object to the disclosure, and the individual does not express an objection; or<br />
(iii) <strong>Reasonably infers from the circumstances, based the exercise of professional judgment, that the individual does not object to the disclosure.</strong></p>
</blockquote>


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(iii) <strong>Reasonably infers from the circumstances, based the exercise of professional judgment, that the individual does not object to the disclosure.</strong></p>
</blockquote>
<p>HHS does discuss disclosure to family members in <a href="https://www.hhs.gov/hipaa/for-professionals/faq/2069/under-hipaa-when-can-a-family-member/index.html" rel="nofollow noreferrer">their FAQ</a> :</p>
<blockquote>
<p>A covered entity is permitted to share information with a family member or other person involved in an individual’s care or payment for care as long as the individual does not object.</p>
</blockquote>
<p>A parent of a child who has just turned 18 is likely still somewhat involved in the child's care, so, absent either an objection or a reason to believe the child would object if asked, sharing is probably not a violation.</p>


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Question Body: <p>Bob ordered something on eBay from a seller and wins the auction for £40. The item is in good condition but more usually goes for closer to £150. Perhaps it has some uncommon quality that especially suits Bob but not others thus making it more expensive (like a phone locked to what is incidentally his favoured network) or perhaps it just happened to go for less by a fluke of luck but in any case Bob spent a fair bit of effort monitoring the market for the product he wanted at a favourable price.</p>
<p>He orders it and the seller posts it to an eBay product collection point, and Bob gets notified that it has been received thereby and thus is ready for him to collect.</p>
<p>Bob goes to the pickup location which is inside a partner business like an Argos but they say they cannot find it anywhere given the collection code or Bob’s name as an addressee.</p>


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<p>Bob goes to the pickup location which is inside a partner business like an Argos but they say they cannot find it anywhere given the collection code or Bob’s name as an addressee.</p>
<p>This is apparently Argos’s failure but they say to speak to eBay. Bob clicks the item not arrived button on eBay which caused consternation for the seller who immediately posts their proof of posting in defense.</p>
<p>Firstly should Argos or eBay be the subject of the question?</p>
<p>And secondly, surely Bob would be entitled to a refund, presumably from eBay or possibly Argos, and one would hope not the seller, but does that really compensate Bob? When is another bargain like that for the item he wanted going to come along again? Most products are more expensive or they are locked to a different network or they are designed for right handed individuals etc so none really suit him and rarely for the price of £40.</p>
<p>Who is liable and are they liable for a replacement or a refund?</p>


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Answer 1: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<h3>Common-law remedy: expectation damages</h3>


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<h3>Common-law remedy: expectation damages</h3>
<p>The general measure of damages for breach of contract is <em>expectation damages</em>: &quot;the plaintiff will be entitled to the value of the promised performance&quot; (<em>Bank of America Canada v. Mutual Trust Co.</em>, <a href="https://canlii.ca/t/51s8#par26" rel="nofollow noreferrer">2002 SCC 43 at paragraph 26</a>); &quot;the purpose of expectation damages is to put the plaintiff in the same position it would have been <em>if the contract had been performed</em> (<em>Grandeur Homes Inc. v. Zeng</em>, <a href="https://canlii.ca/t/jgdx0#par19" rel="nofollow noreferrer">2021 ONSC 4005 at paragraph 19</a>). Unless Bob's contract specifies some other entitlement in the case of non-delivery, Bob will likely be awarded expectation damages.</p>


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<p>As a starting point, courts are likely to view the market value of the contract (e.g. £40) as the floor for expectation damages, but it is open to Bob to prove higher expectation damages by demonstrating the cost of obtaining a sufficiently similar alternative, while reasonably attempting to mitigate damages. That is: Bob should not simply announce a million-pound open bid for a similar phone, and Bob should not wait around if the price is increasing, but Bob could enter another reasonably competitive auction. Also, if Bob can prove losses incurred by not having the item in the meantime, those will also form part of the expectation damages.</p>
<h3>Statute: Sales of Goods Acts essentially provide for expectation damages</h3>
<p>Provincial Sale of Goods Acts also say this. See e.g. <a href="https://www.ontario.ca/laws/statute/90s01" rel="nofollow noreferrer">Ontario's</a>:</p>
<blockquote>


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<p>Provincial Sale of Goods Acts also say this. See e.g. <a href="https://www.ontario.ca/laws/statute/90s01" rel="nofollow noreferrer">Ontario's</a>:</p>
<blockquote>
<p>The measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the seller’s breach of contract.</p>
<p>Where there is an available market for the goods in question, the measure of damages is, in the absence of evidence to the contrary, to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.</p>
</blockquote>


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Question Body: <p>I have the need to transfer an apartment my wife and I own Fee Simple to a Multi-member LLC whose members are currently the two of us. I have prepared a standard Warranty Deed to do the transfer and we are both in agreement.</p>
<p>While other states I have done this with require simply an executed notarized Warranty Deed (MD, CO), NYC's ACRIS system requires a long list of documents, not all of which seem to apply to this transfer:</p>
<p>22 pages of forms:</p>
<ul>
<li>Affidavit of smoke detector (notarized 1)</li>
<li>Tax form 584</li>
<li>Tax form IT-2663 (for non-residents in our case)</li>
<li>Water utility form</li>
<li>Transfer form 5217 (notarized 2)</li>
<li>LLC member list</li>
<li>Warranty Deed (notarized 3)</li>
</ul>
<p>The final three items make sense. The others seem like an undue burden given the tax owed is $0 as there is no &quot;purchase&quot; happening. Finally NYC charges by the page, so with Notary charges, the cost comes to almost $300.</p>


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<p>I wonder if anyone has a sense of the &quot;Minimum paperwork&quot; required for acceptance in this case, which I would imagine is quite common.</p>
<h3>Update</h3>
<p>We completed the transfer using ACRIS, and in the end paid the $300 and filed all forms above (including the important TP-584.1 with Schedule F &quot;Mere change of form of ownership&quot; which I had forgotten initially).</p>
<p>This transaction cost is still much less than if done by a third party professional.</p>
<p>Some tips:</p>
<ul>
<li>Ensure signatures are written in black ink (ACRIS uses a system to automatically process forms, which has trouble with blue ink).</li>
<li>The rejecteddocuments@finance.nyc.gov admins were very helpful resolving reasons for my initial rejection.</li>


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<li>The rejecteddocuments@finance.nyc.gov admins were very helpful resolving reasons for my initial rejection.</li>
<li>If rejected you do not need to re-pay, simply create a new &quot;Cover Page&quot; and retrieve your old &quot;Tax transaction&quot; on the first screen. All fields are repopulated and on the last screen you can upload your amended documents and resubmit.
<ul>
<li>In Computer-Science terms, the &quot;Tax transaction&quot; is the primary key. The ACRIS Cover Page serves as an instance of submission.</li>
</ul>
</li>
</ul>
<p>I still do not know the minimal document list needed, so will leave the question open.</p>
<p>@ohwilleke's answer below is informative, but addresses only the recorded document (Warranty Deed or alternatives), and only partially the &quot;minimial documentation required&quot; (as he also points out), so will leave this question as unanswered.</p>


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<p>Best of luck to others. I believe law is for citizens, and should be comprehensible and its processes and practice be accessible, especially for simple transactions such as this. I appreciate the existence of this StackExchange, and hope it grows!</p>
<p>NOTES</p>
<ol>
<li>ACRIS reference, follow &quot;Record New Document&quot; section here  <a href="https://portal.311.nyc.gov/article/?kanumber=KA-01665" rel="nofollow noreferrer">https://portal.311.nyc.gov/article/?kanumber=KA-01665</a></li>
</ol>


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Answer 1: <p>This is only a partial answer.</p>
<h3>Types of deeds and what they mean</h3>
<p>Normally, a related party transfer to a limited liability company would be done via a quitclaim deed (more often) or a bargain and sale deed (less often), rather than a warranty deed.</p>
<p>The quitclaim deed transfers whatever you own with respect to the property but makes no promises that you own it or that it is free of liens and encumbrances. A quitclaim deed does not convey after-acquired property except when an exception to the general rule applies.</p>


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<p>A bargain and sale deed conveys what is described with a promise that the person executing the deed had not encumbered (e.g. mortgaged) or sold the property at any time after it came to be titled in their name that are not described in the deed, but does not promise that the person that they obtained the property from had good title or that their title was free of liens or encumbrances. A bargain and sale deed preserves title insurance policy protections from the previous owner, while a quitclaim deed does not. I don't know what affect a bargain and sale deed has with respect to after-acquired property.</p>


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<p>Warranty deeds are not normally used for this purpose. Warranty deeds are normally used in arms-length sales for fair market value between unrelated parties and are normally processed by title insurance companies who insure the buyer and anyone financing the buyer's purchase of the property with a mortgage against the possibility that the seller didn't have good title to the property sold or had undisclosed liens or encumbrances. A warranty deed contains a promise that the seller owns all real property described in the deed subject only to the liens and encumbrances stated in the deed. A warranty deed also conveys after-acquired property.</p>
<h3>ACRIS</h3>
<p>You <a href="https://www.nyc.gov/site/finance/taxes/property-recording-documents.page" rel="nofollow noreferrer">don't have to use the ACRIS system</a>. You can bring the document to the appropriate city office and have it recorded there on paper in person, rather than electronically.</p>
<h3>Other forms you must file</h3>


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<h3>Other forms you must file</h3>
<blockquote>
<p>Quitclaim deeds filed in New York City use Real Property Transfer
Report (Form RP-5217NYC) and a Combined Real Estate Transfer Tax
Return, Credit Line Mortgage Certificate, and Certification of
Exemption from the Payment of Estimated Personal Income Tax (Form
TP-584), both of which are filed with the county clerk.</p>
</blockquote>
<p>(<a href="https://www.legalzoom.com/articles/new-york-state-requirements-for-a-quitclaim-deed#:%7E:text=owns%20the%20property.-,How%20to%20file%20a%20quitclaim%20deed%20in%20New%20York,where%20the%20property%20is%20located." rel="nofollow noreferrer">Source</a>)</p>
<p>Tax form 584 has a box to check for transfers such as this one that result in no tax being owed. You check box &quot;f&quot; in two places and attach Schedule F. You may also need to fill out Schedule A.</p>
<blockquote>


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<blockquote>
<p><a href="https://assembly.state.ny.us/leg/?default_fld=&amp;bn=S01730&amp;term=2019&amp;Summary=Y&amp;Actions=Y&amp;Text=Y&amp;Committee&amp;nbspVotes=Y&amp;Floor&amp;nbspVotes=Y" rel="nofollow noreferrer">Section 1409(a) of the New York Tax Law</a> has been amended, effective
September 13, 2019, in relation to real property transfer tax returns
of limited liability companies (LLC). . . .</p>
<p>The amended legislation “requires the real property transfer tax
return relating to residential property sold or purchased by a limited
liability company to include information on the ownership of such
company.” S1730 Sponsor Memo</p>
<p>The amendment only applies to the conveyance of residential real
property containing one- to four-family dwelling units when the
grantor or grantee is an LLC.</p>
<p>If you are recording a deed:</p>
<p>of a residential real property containing a one- to four- family
dwelling unit, and</p>
<p>a grantor or a grantee is an LLC</p>


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<p>If you are recording a deed:</p>
<p>of a residential real property containing a one- to four- family
dwelling unit, and</p>
<p>a grantor or a grantee is an LLC</p>
<p>If the grantor or grantee is an LLC and the member of the grantor or
grantee LLC is not a single natural person, then all members,
managers, or any other authorized persons must be listed and included
on a separate page behind the TP-584. “Other” should be chosen as
Grantor or Grantee type on the TP-584 in Schedule A.</p>
<p>If a member of the LLC is another LLC or other business entity, all
shareholders, directors, officers, members, managers, partners and
authorized persons of said LLC or business entity must be listed by
name and business address until “full disclosure of ultimate ownership
by natural persons is achieved.”</p>
</blockquote>


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authorized persons of said LLC or business entity must be listed by
name and business address until “full disclosure of ultimate ownership
by natural persons is achieved.”</p>
</blockquote>
<p>(<a href="https://www.westchesterclerk.com/news/2019-news/396-notice-re-conveyances-with-llcs-as-grantors-or-grantees" rel="nofollow noreferrer">Source</a>) The language of the amended statute makes clear that the form must be used even when no tax is actually due in the transaction. See also a discussion of the impact of the 2019 law <a href="https://www.jdsupra.com/legalnews/amendment-to-nys-tax-law-affects-36462/" rel="nofollow noreferrer">here</a>.</p>
<p>Incidentally, you do not need to file with the IRS Form 709, a gift tax form, because a transfer from the owners of real property to an LLC that they own is not a taxable gift. Instead it is considered to be a contribution to the capital of the LLC.</p>
<h3>Questions left unanswered</h3>


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<h3>Questions left unanswered</h3>
<p>I omit from this answer (for lack of time) the bottom line of all other forms, if any, must be completed and filed when a deed is recorded in New York City in a transfer of real estate for no consideration from its owners to an LLC owned by the owners. In particular, I leave unanswered the questions of whether you need to file the following forms:</p>
<ul>
<li><p>Affidavit of smoke detector</p>
</li>
<li><p>Tax form IT-2663 (for non-residents in our case)</p>
</li>
<li><p>Water utility form</p>
</li>
</ul>
<p>I suspect, but do not know that the smoke detector and water utility forms may be New York City specific.</p>
<p>I also do not analyze the filing fees due, but <em>see</em> <a href="https://www.tax.ny.gov/research/property/assess/sales/deedevents.htm" rel="nofollow noreferrer">this chart</a>. The basic fee for filing a quitclaim deed to residential real estate is $125.</p>


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<p>(FWIW, for comparison's sake, <a href="https://www.arapahoegov.com/1423/Recording-Fees" rel="nofollow noreferrer">in Colorado</a>, the filing fee is $13 plus $5 per page, LLC ownership does not have to be disclosed, one information form similar to Form 584 in NY has to be filed, but doesn't prevent a deed from being recorded and isn't a matter of public record, affidavits related to smoke detectors don't have to be filed, and utility transfers are handled outside the real estate recording system. Prior to a transfer out of an LLC, in Colorado, one has to file a &quot;Statement of Authority&quot; which states under oath who is allowed to sign a deed from the LLC but not who owns the LLC.)</p>


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Question Title: How would members of a convention for amending the Constitution be chosen?

Question Body: <p>Constitution of the United States, Article V:</p>
<blockquote>
<p>The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments</p>
</blockquote>
<p>How would the members of such a convention be chosen?</p>


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Answer 1: <p>The method of proposing an amendment by way of Convention <a href="https://constitution.congress.gov/browse/essay/artV-3-1/ALDE_00013049/" rel="noreferrer">has never been used</a>. Thus, procedural aspects such as how members of such a convention would be chosen have also not been settled:</p>
<blockquote>
<p>In the modern era, scholars have debated various issues, including: (1) <strong>how delegates to the convention should be chosen</strong>; (2) whether Congress, state legislatures, or the delegates should set rules of procedure for the convention; (3) the vote threshold would be required to propose an amendment in convention; and (4) how voting rights on a proposed amendment should be apportioned among the states.</p>
<p>(Constitution Annotated, &quot;<a href="https://constitution.congress.gov/browse/essay/artV-3-3/ALDE_00013051/" rel="noreferrer">ArtV.3.3 Proposals of Amendments by Convention</a>&quot;)</p>
</blockquote>


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Answer 2: <p>As noted, we don't know.  What do we know?</p>
<p>Basically, Congress would have to specify the procedure for selecting delegates, or at least a procedure for establishing how to select delegates, in the act calling the convention.  (This is presumably why the constitution requires congress to call the convention when two thirds of the states ask for one rather than simply saying that a convention will happen when two thirds of the states want one.)</p>
<p>If the applications of the two thirds of states included identical proposed procedural rules for the convention then Congress would probably use those rules, but it might not.
For example, if three fourths of the states were firmly controlled by one party, giving that party the power to ratify amendments unilaterally, while congress was controlled by another party, and the proposed procedural rules would allow the first party to control the convention, then congress might decide to alter the rules).</p>


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<p>So, to answer your question:</p>
<blockquote>
<p>How would the members of such a convention be chosen?</p>
</blockquote>
<p>However congress specified when calling the convention.</p>


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Question Body: <p>I am a Law Student in Greece trying to understand what Law is a what Jurisprudence is and what the jurisprudential method of thinking is.</p>
<p>What is Jurisprudence; what is its object of study, what are we analysing?</p>
<p>Many people say that Jurisprudence is not the same as Law. Law is the system (not the agreggation of rules but the mental abstraction, their method) of rules and Jurisprudence is the analysis, the study.</p>
<p>Analysis is the syllogistic method with which the individual elements of a phenomenon or a mental abstraction are isolated, to be studied separetely and interpreted.</p>
<p>Study is the mental work, especially meticulous and systematic reading, with the aim of understanding or interpreting a determined object.</p>
<p>Object is anything that is related to something else mainly as its cause or aim.</p>


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<p>Object is anything that is related to something else mainly as its cause or aim.</p>
<p>Is Jurisprudence the study or the analysis of Law's interpretation (Law's interpretation being the aim of Jurisprudence)? How can we study and interpret a mental abstraction?</p>


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Answer 1: <p><strong>Legal Theory and Philosophy of Law</strong></p>
<p>There are two different meanings of the word <strong>Jurisprudence</strong></p>
<ol>
<li><p>A heavy word for the study or knowledge of the law. If a judge or law lecturer were to refer to &quot;the role of freedom of contract in our jurisprudence&quot; for example, this is the sense intended (this is the sense @ohwilleke refers to in his answer).</p>
</li>
<li><p>The second meaning - and the more usual meaning nowadays, particularly in in academic circles (I note you are studying law so this is probably the meaning you are asking about) - could be described as the philosophy of law.</p>
</li>
</ol>
<p>In <em>Legal Philosophies</em> (1997) J W Harris says (p.1)</p>
<blockquote>
<p>Jurisprudence is a ragbag. Into it are cast all kinds of general
speculations about the law. What is it for? What does it achieve?
Should we value it? How is it to be improved? Is it dispensable? Who


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speculations about the law. What is it for? What does it achieve?
Should we value it? How is it to be improved? Is it dispensable? Who
makes it? Where do we find it? What is its relation to morality, to
justice, to politics, to social practices, or to naked force? Should
we obey it? Whom does it serve? These are the questions of which
general jurisprudence is comprised. They can be ignored, but they will
no go away...</p>
<p>Jurisprudence has to entrench on [the disciplines of moral and
political philosophers] at many points, as well as upon those of
social and political theory. It is a scavenger, as well as a ragbag;
having no perimeter to its field of enquiry, save that what is studied
must have a bearing on some general speculation about law.</p>
<p>If jurisprudence has a heartland all its own, it is <strong>legal theory</strong>
Much discussion about moral claims of the law (and moral claims on the
law) takes the concept of law itself for granted. Yet, answers to such


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Much discussion about moral claims of the law (and moral claims on the
law) takes the concept of law itself for granted. Yet, answers to such
questions may turn on what picture of law we have. Legal theory asks:
What is the nature of law (everywhere, or just in the modern state)?</p>
</blockquote>


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questions may turn on what picture of law we have. Legal theory asks:
What is the nature of law (everywhere, or just in the modern state)?</p>
</blockquote>
<p>In a three year English undergraduate law degree, Jurisprudence has traditionally been studied as a compulsory module in the third year which concentrates on <strong>legal theory</strong>. One thing students immediately notice is that the exact scope and definition of jurisprudence is disputed (which can be discomforting since all the other modules they have hitherto studied - Contract, Tort, Crime, etc- have clear definitions). This uncertainty is exacerbated by the fact that legal theories which come under the umbrella term of <strong>legal positivism</strong> have as one of their central themes the proposition that jurisprudence should only be concerned with <strong>positive law</strong> and that legal theory need not (and should not) look outside to ideas of morality or <strong>natural law</strong>.


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In other words not only do different legal theories have different explanations of the phenomenon of law, but they actually disagree about the scope of what it is they are supposed to be explaining!</p>
<p>Traditionally jurists thought of God as the ultimate law-giver whose laws were written on human hearts (conscience). This is the &quot;natural law&quot; which human legislators add to by creating &quot;positive law&quot;. For example murder is contrary to natural law but you need human laws to define the different categories of homicide, the prescribed penalties, and the procedure by which accusations are tried and decided. You also need human laws to define the circumstances in which a contract comes into being etc.</p>
<p>Note: <strong>positive</strong> in used in its old original meaning of &quot;laid down&quot; as distinct from natural. It is nothing to do with the modern meaning of <strong>positive</strong> as being the opposite of <strong>negative</strong>.</p>


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<p>William Blackstone, in Vol. 1, Commentaries on the Laws of England (1765) Page 27, wrote:</p>
<blockquote>
<p>This will of his maker is called the law of nature. For as God, when
he created matter, and endued it with a principle of mobility,
established certain rules for the perpetual direction of that motion;
so, when he created man, and endued him with freewill to conduct
himself in all parts of life, he laid down certain immutable laws of
human nature, whereby that freewill is in some degree regulated and
restrained, and gave him also the faculty of reason to discover the
purport of those laws.  Considering the creator only as a being of
infinite power, he was able unquestionably to have prescribed whatever
laws he pleased to his creature, man, however unjust or severe. But as
be is also a being of infinite wisdom, he has laid down only such laws
as were founded in those relations of justice, that existed in the
nature of things antecedent to any positive precept. These are the


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as were founded in those relations of justice, that existed in the
nature of things antecedent to any positive precept. These are the
eternal, immutable laws of good and evil, to which the creator himself
in all his dispensations conforms; and which he has enabled human
reason to discover, so far as they are necessary for the conduct of
human actions. Such among others are these principles: that we should
live honestly, should hurt nobody, and should render to every one his
due; to which three general precepts Justinian1 has reduced the whole
doctrine of law.  This will of his maker is called the law of nature.
For as God, when he created matter, and endued it with a principle of
mobility, established certain rules for the perpetual direction of
that motion; so, when he created man, and endued him with freewill to
conduct himself in all parts of life, he laid down certain immutable
laws of human nature, whereby that freewill is in some degree


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conduct himself in all parts of life, he laid down certain immutable
laws of human nature, whereby that freewill is in some degree
regulated and restrained, and gave him also the faculty of reason to
discover the purport of those laws.  Considering the creator only as a
being of infinite power, he was able unquestionably to have prescribed
whatever laws he pleased to his creature, man, however unjust or
severe. But as be is also a being of infinite wisdom, he has laid down
only such laws as were founded in those relations of justice, that
existed in the nature of things antecedent to any positive precept.
These are the eternal, immutable laws of good and evil, to which the
creator himself in all his dispensations conforms; and which he has
enabled human reason to discover, so far as they are necessary for the
conduct of human actions. Such among others are these principles: that
we should live honestly, should hurt nobody, and should render to


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conduct of human actions. Such among others are these principles: that
we should live honestly, should hurt nobody, and should render to
every one his due; to which three general precepts Justinian has
reduced the whole doctrine of law....</p>
<p>Upon these two foundations, the law of nature and the law of
revelation, depend all human laws; that is to say, no human laws
should be suffered to contradict these. There are, it is true a great
number of indifferent points, in which both the divine law and the
natural leave a man at his own liberty; but which are found necessary
for the benefit of society to be restrained within certain limits. And
herein it is that human laws have their greatest force and efficacy;
for, with regard to such points as are not indifferent, human laws are
only declaratory of, and act in subordination to, the former. To
instance in the case of murder; this is expressly forbidden by the
divine, and demonstrably by the natural law; and from these


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only declaratory of, and act in subordination to, the former. To
instance in the case of murder; this is expressly forbidden by the
divine, and demonstrably by the natural law; and from these
prohibitions arises the true unlawfulness of this crime. Those human
laws that annex a punishment to it, do not at all increase its moral
guilt, or superadd any fresh obligation in foro conscientiae [in the
court of conscience] to abstain from its perpetration. Nay, if any
human law should allow or enjoin us to commit it, we are bound to
transgress that human law, or else we must offend both the natural and
the divine. But with regard to matters that are in themselves
indifferent, and are not commanded or forbidden by those superior
laws; such, for instance, as exporting of wool into foreign countries;
here the inferior legislature has scope and opportunity to interpose,
and to make that action unlawful which before was not so...</p>
</blockquote>


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here the inferior legislature has scope and opportunity to interpose,
and to make that action unlawful which before was not so...</p>
</blockquote>
<p>In <em>the Province of Jurisprudece Determined</em> (1832) John Austin wrote at length about both natural law and positive law and sought to draw a line of distinction between them:</p>
<blockquote>
<p>AS one of the Law-Professors at the University of London, I planned
and partly delivered a systematical Course of Lectures on General or
Abstract Jurisprudence. In the ten lectures delivered at the beginning
of my Course, I distinguished <strong>positive law (the appropriate matter of
jurisprudence)</strong> from various objects with which it is connected by
resemblance, and from various other objects to which it is allied by
analogy. Out of those ten discourses, I have made the treatise which I
now submit to the public, and which I venture to entitle “the
province of jurisprudence determined.”</p>


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analogy. Out of those ten discourses, I have made the treatise which I
now submit to the public, and which I venture to entitle “the
province of jurisprudence determined.”</p>
<p>Determining the characters of positive laws, I determine implicitly
the notion of sovereignty, with the implied or correlative notion of
independent political society. For the essential difference of a
positive law (or the difference that severs it from a law which is not
a positive law) may be stated generally in the following manner.
Every positive law, or every law simply and strictly so called, is set
by a sovereign person, or a sovereign body of persons to a member or
members of the independent political society wherein that person or body  &gt; is sovereign or supreme.
Or (changing the phrase) it is set by a monarch, or sovereign number,
to a person or persons in a state of subjection to its author. To
elucidate the nature of sovereignty, and of the independent political


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to a person or persons in a state of subjection to its author. To
elucidate the nature of sovereignty, and of the independent political
society that sovereignty implies, I examine various topics which I
arrange under the following heads: First, the possible forms or shapes
of supreme political government; second, the limits, real or
imaginary, of supreme political power; thirdly, the origin or causes
of political government and society. Examining those various topics,
I complete <strong>my description of the limit or boundary by which positive
law is severed from positive morality. For I distinguish them at
certain points whereat they seemingly blend, or whereat the line which
divides them is not easily perceptitible.</strong></p>
</blockquote>


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certain points whereat they seemingly blend, or whereat the line which
divides them is not easily perceptitible.</strong></p>
</blockquote>
<p>Austin's account of positive law (essentially a command of a sovereign accompanied by a threat of sanction for non-compliance) has been criticised as being simplistic and of failing to provide an adequate explanation of law and legal systems, but to be fair to Austin he never claimed that his theory of positive law could alone explain what happens in legal systems. He recognised the influence of natural law/morality as part of an explanation. He simply wished to define the limits of Jurispudence as an academic subject, which he did narrowly.</p>


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<p>Some jurists, however, have subsequently sought to produce theories of law which seek to explain what the phenomenon of law is, and how it works, based <strong>only</strong> on positive law. Such theorists are called &quot;positivists&quot; and their school of thought is called <strong>legal positivism</strong>.</p>
<p>In 1960 Hans Kelsen published <em>Reine Rechtslehre</em> which was translated into English in 1967 as <em>The Pure Theory of Law</em>. As the word <strong>pure</strong> in the title suggests Kelsen's theory is in the <strong>legal positivism</strong> school of thought - i.e. it seeks to explain law and legal systems by reference <strong>only</strong> to positive law.</p>


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<p>Kelsen himself was a moral relativist but not all legal positivists are  necessarily atheists or moral relativists. Some may personally think that natural law/morality is important but nevertheless think that the discipline of law should be &quot;self contained&quot; and should be capable of being completely and satisfactorily explained without brining natural law/morality etc. into it.</p>
<p>Natural lawyers critique the theories of legal positivism by saying that they are incomplete as they leave so much unexplained. Legal Positivists reply that their theories have a restricted scope precisely because everything outside the scope of the theory is not really law at all and so does not need to be explained by the theory.</p>


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<p>So you can see that the definition of Jurisprudence is rather woolly but <strong>philosophy of law with particular emphasis on competing theories of what the phenomenon of law actually is</strong> might be a short rough definition to convey the general idea of <strong>Jurisprudence</strong> as the word in generally used today.</p>


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Answer 2: <h2>Jurisprudence is the philosophy of law</h2>
<p>Jurisprudence is not the same as law just like metaphysics is not physics and theology is not religion.</p>
<p>The study of law is specific to a specific legal system, like Greek law, English law, Sharia law etc. Jurisprudence is the study of the general principles behind and between these specific legal traditions.</p>
<p>For example, consider the issue of theft. What the various types of theft are, the elements involved in arresting, charging, convicting and punishing someone for theft and the penalties and redress involved are all legal questions. Whether theft should be a crime and when, how theft is treated in different parts of the world and what is theft anyway are all issues of jurisprudence.</p>


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Answer 3: <p>It depends upon context.</p>
<p>Often, the word &quot;jurisprudence&quot; is used to describe the customary way that a particular judge, or a particular legal body, or a particular legal system, has historically treated a particular legal issue.</p>
<p>So, you might talk about &quot;Judge Learned Hand's jurisprudence in tort law&quot;, or &quot;U.S. Supreme Court procedural jurisprudence&quot;, or &quot;Dog bite jurisprudence in the United States legal system.&quot;</p>
<p>The implication of framing something as an issue of jurisprudence is that a lot of superficially isolated legal decisions or laws may be united and better understood in the context of some overriding principle or theme that illuminates why the law whose jurisprudence is being discussed has the detailed elements that it does. In other words, they are united by an overall legal theory or philosophy of law.</p>


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<p>For example, the jurisprudence of financial systems payment fraud can be summed up with the concept that among non-criminal third-parties, the loss will be assigned by the legal system to the firm or person that had the most direct interaction with the person who perpetrated the fraud. The applicable legal rules never say this outright, and instead deal at a much more granular level with particular specific fact patterns. But the animating theme that can be inferred from looking at those detailed rules as a whole and trying to figure out how they fit together in order to interpret them if they are ambiguous in a particular case is the one expressed above as a description of the jurisprudence of this area of law.</p>


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Question Title: What enforcement action can be taken against a small claims court respondent?

Question Body: <p>I recently applied for <a href="https://www.scotcourts.gov.uk/rules-and-practice/rules-of-court/sheriff-court---civil-procedure-rules/simple-procedure-court-rules/simple-procedure-rules" rel="nofollow noreferrer">Simple Procedure</a> (Form 3A) against respondent X at Edinburgh Sheriff Court. (My claim was initiated prior to 31 May 2023.) X did not respond by the deadline. Then I submitted an Application for Decision (Form 7A). As a result the Sheriff Court issued a Decision Form (13A) in early April 2023, ordering X to pay me a sum of money. But X still has not responded.</p>
<p>What are my options now? I looked through the guidelines (especially Part 15) but I'm not sure of the best way to proceed.</p>


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Answer 1: <p>At this point, since it's been more than four weeks since the order was issued, you are able to enforce the order. The delay is just to allow appeals or corrections. It is up to you to arrange enforcement, so at a high level your choices are to do nothing, or to proceed. If you do nothing then you will not get any money. If you proceed then you will spend more money, which you may or may not get back, as with the original sum.</p>
<p>The Scottish procedure is conceptually similar to the English one that is more normally described in online resources, but the words are different. To decode things a bit,</p>
<ul>
<li>You are now trying to proceed with &quot;diligence&quot;, which means enforcing the court order. The court itself is not involved, having moved on to other things.</li>
<li>There are several ways the money could come to you, such as &quot;arrestment&quot;, &quot;attachment&quot; and &quot;inhibition&quot;. Or, X might give you the money voluntarily.</li>


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<li>There are several ways the money could come to you, such as &quot;arrestment&quot;, &quot;attachment&quot; and &quot;inhibition&quot;. Or, X might give you the money voluntarily.</li>
<li>The next steps must be taken by a &quot;sheriff officer&quot; on your instruction. Despite the name being similar to &quot;sheriff&quot; as in &quot;Sheriff Court&quot;, these officers are private practitioners who are licensed by the courts to pursue debtors.</li>
</ul>


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<p>You can use <a href="https://smaso.org.uk" rel="noreferrer">https://smaso.org.uk</a> to find a sheriff officer you like. Most likely you will be able to give them all the information online. Then, they will go ahead with the first step, formally serving a &quot;charge for payment&quot; on X. Then, X has 14 days to come up with the money; if they don't, then the sheriff officer can proceed with more drastic steps. They will be able to advise based on the particular circumstances, but some broad possibilities are &quot;arrestment&quot; of X's money directly from their bank, or &quot;attachment&quot;, which is seizure of X's property to be auctioned off. If X is an employed person (rather than a business, say) then you might also arrange &quot;arrestment of earnings&quot; whereby the employer diverts a sum from X's pay to you, for whatever necessary period of time. All these come with their own rules and timescales, including processes if X's bank or employer does not comply.</p>


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<p>The sheriff officer will have to be paid for all this. The usual way is that you pay them up-front, and then that fee can be added to the diligence. All officers charge the same rates, but the fee schedule is a bit complicated depending on exactly which services are involved, how long it takes the officer to do the work, and their travel time. It is up to you to make the decisions about how much you want to spend in pursuit of the money, also taking into account the likelihood that you will actually get it. For the sheriff officer, since this is a completely routine part of the job, they will be able to give you their impression of the range of outcomes based on the specifics of X's situation.</p>


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Question Title: What is the legal basis for judges being able to see classified material?

Question Body: <p><a href="https://en.wikipedia.org/wiki/Marcy_Wheeler" rel="nofollow noreferrer">Marcy Wheeler</a>, in her emptywheel Twitter account, recently <a href="https://twitter.com/emptywheel/status/1669030049025073178?s=20" rel="nofollow noreferrer">tweeted</a>:</p>
<blockquote>
<p>I addressed this question in this post. No, Cannon does not need a
clearance. Her access comes via dint of her responsibilities, just
like Members of Congress who need to access classified information do.
They ALSO do not get clearances.</p>
</blockquote>
<p>But what is the exact legal basis for this? Clearly it can't be the case that every federal judge has the right to see all classified material no matter what classification it has (eg Top Secret/SCI etc.)</p>


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Answer 1: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>The simple answer is the procedures adopted under the Classified Information Procedures Act. Under Personnel Security, they say that:</p>
<blockquote>
<p>No person appointed by the court or designated for service therein will be given access to any classified information in the custody of the court, unless such person has received the appropriate security clearance and unless access to such information is necessary for the performance of an official function. A security clearance for justices and other Article III judges is not required.</p>
</blockquote>


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</blockquote>
<p>The true answer is a bit more involved. Article III judges (essentially meaning life-tenured federal judges) are constitutional officers. Their office and its basic role is laid out by the Constitution. On the other hand, security clearances are an administrative thing under the basically unreviewable control of the executive branch. It’s not appropriate to deny a constitutional officer access to information they need to carry out their constitutional role unless the executive branch agrees that they’re suitable.</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>&quot;Secret&quot; and &quot;Top Secret&quot; are defined by the  <a href="https://security-guidance.service.justice.gov.uk/government-classification-scheme/" rel="noreferrer">Government Security Classification (GSC)</a>, and certain senior judges are cleared, just like everyone else who meets the following criteria, to access the material or the assets in a process called <a href="https://www.gov.uk/government/publications/united-kingdom-security-vetting-clearance-levels/national-security-vetting-clearance-levels#developed-vetting-dv" rel="noreferrer">Developed Vetting (DV)</a>:</p>
<blockquote>
<p>Individuals who are to be employed in posts which:</p>
<ul>


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<blockquote>
<p>Individuals who are to be employed in posts which:</p>
<ul>
<li>require them to have frequent and uncontrolled access to TOP SECRET assets or require any access to TOP SECRET codeword material</li>
</ul>
<p>And for individuals who:</p>
<ul>
<li><p>while not in such posts, will be in a position to directly or indirectly bring about the same degree of damage.</p>
</li>
<li><p>require frequent and uncontrolled access to Category I nuclear material</p>
</li>
<li><p>require access to certain levels of classified material originating from another country or international organisation.</p>
</li>
</ul>
</blockquote>
<p>Although <a href="https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/5?timeline=false" rel="noreferrer">Article 6</a> of The European Convention on Human Rights (ECHR), incorporated in to law by the Human Rights Act 1998, states:</p>
<blockquote>


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<blockquote>
<p>... everyone is entitled to a fair and <strong>public hearing</strong> ... [<em>and</em>] Judgment shall be <strong>pronounced publicly</strong> ...</p>
</blockquote>
<p>To preserve secrecy and to exclude or restrict access to those not DV cleared, Article  6 empowers the judge to hold some, or very rarely all, of the trial <a href="https://en.wikipedia.org/wiki/In_camera" rel="noreferrer"><em>in camera</em></a> as...</p>
<blockquote>
<p>...the press and public may be excluded from all or part of the trial in the interest of [...] <strong>national security</strong></p>
</blockquote>
<p>This is supplemented by <a href="https://www.legislation.gov.uk/uksi/2020/759/rule/6.4?timeline=false" rel="noreferrer">Rule 6.4</a> of the Criminal Procedure Rules:</p>
<blockquote>
<p>This rule applies where the court can—</p>
<p>(a) impose a restriction on—</p>
<ul>
<li><p>(i) reporting what takes place at a public hearing, or</p>
</li>


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<blockquote>
<p>This rule applies where the court can—</p>
<p>(a) impose a restriction on—</p>
<ul>
<li><p>(i) reporting what takes place at a public hearing, or</p>
</li>
<li><p>(ii) public access to what otherwise would be a public hearing; or</p>
</li>
</ul>
<p>(b) withhold information from the public during a public hearing.</p>
</blockquote>
<hr />
<p><sub>Although tagged <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a>, I have answered in line with: <em>we expect and encourage answers dealing with other jurisdictions ... please tag your answer using the tag markdown: [tag: some-tag]</em>&quot; from the <a href="https://law.stackexchange.com/help/on-topic">Help centre</a></sub></p>


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Answer 3: <p>This is probably a reference to <a href="https://www.law.cornell.edu/uscode/text/50/3163" rel="noreferrer">50 USC 3163</a>:</p>
<blockquote>
<p>Except as otherwise specifically provided, the provisions of this subchapter shall not apply to the President and Vice President, Members of the Congress, Justices of the Supreme Court, and Federal judges appointed by the President.</p>
</blockquote>
<p>&quot;This subchapter&quot; is 50 USC Chapter 44 Subchapter VI, encompassing sections 3161-3164.  Especially <a href="https://www.law.cornell.edu/uscode/text/50/3161" rel="noreferrer">Section 3161</a> which imposes the rule that access to classified information should only be granted to those who have been cleared based on an &quot;appropriate background investigation&quot;.  So by Section 3163, judges and members of Congress do not require a clearance in order to access such information.</p>


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<p>That isn't the same as having a <em>right</em> to see all such information.  A federal judge can't, as far as I know, arbitrarily demand access to some random classified document. But when, for instance, classified documents appear as evidence in cases they preside over, lacking a clearance isn't a hindrance to access.</p>


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Answer 4: <p>Only one of the other answers even brushes against this part of the question, so I'll focus on that, since it's really critical to fully answering the whole question.</p>
<blockquote>
<p>Clearly it can't be the case that every federal judge has the right to see all classified material no matter what classification it has (eg Top Secret/SCI etc.)</p>
</blockquote>
<p>No, there's this idea of &quot;need to know&quot; where it doesn't matter what classification someone is cleared to see, if they don't have a specific and real need to see the information, they won't get access to it.</p>
<blockquote>
<p>A determination within the executive branch in accordance with directives issued pursuant to this order that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function.</p>
</blockquote>


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</blockquote>
<p><a href="https://csrc.nist.gov/glossary/term/need_to_know" rel="nofollow noreferrer">https://csrc.nist.gov/glossary/term/need_to_know</a></p>
<p>The above definition comes from a technology standpoint, but it's SOP throughout the whole US government, including the military.</p>
<p>Another way to say it is &quot;This principle states that a user shall only have access to the information that their job function requires, regardless of their security clearance level or other approvals.&quot;</p>
<p><a href="https://techcommunity.microsoft.com/t5/azure-sql-blog/security-the-need-to-know-principle/ba-p/2112393" rel="nofollow noreferrer">https://techcommunity.microsoft.com/t5/azure-sql-blog/security-the-need-to-know-principle/ba-p/2112393</a></p>
<p>The reason for that is risk management. &quot;When access to covered data is broader than what is required for legitimate purposes, there is unnecessary risk of an attacker gaining access to the data.&quot;</p>


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<p><a href="https://security.berkeley.edu/need-know-access-control-guideline" rel="nofollow noreferrer">https://security.berkeley.edu/need-know-access-control-guideline</a></p>
<p>Generally speaking, a judge doesn't need to know all data covered by security clearances, so they don't get access to all that data. So, no, they can't just &quot;walk up&quot; to a facility with secured documents and demand to see anything they want. However, if there is a requirement for them to access classified data, they can get access through the processes and from the legal rules described by the other answers.</p>


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Question Title: Does one need to pay sales tax for the vehicle?

Question Body: <p>This is a hypothetical situation. John owns a vehicle worth $5000. John gave this vehicle to his friend David for free and one week later, David gave John a $5000 monetary gift for John's birthday.</p>
<p>In this scenario, is it lawful for David not to pay sales tax for this vehicle as they both agree that the selling price for the vehicle is $0?</p>


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Answer 1: <h2>If the situation described is accurate, then maybe</h2>
<p>First, let's deal with the implicit assumption that sales tax is not payable on gifts. Whether that is true or not depends on the law in your jurisdiction.</p>
<p>For example, in <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> there is no Goods and Services Tax (GST) payable on a gift because a gift is not a &quot;supply&quot; under the law. Technically, a value-added tax like the GST is not a sales tax but close enough.</p>
<p>However, exchanging a &quot;gift&quot; for something of value (airline points, for example) is not a gift.</p>


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<p>However, exchanging a &quot;gift&quot; for something of value (airline points, for example) is not a gift.</p>
<p>Of course, Australian States and Territories levy Stamp Duty on the transfer of a vehicle's registration, and this is calculated on the sale price or the market price <em>whichever is the greater</em>. Also, technically, that's not a sales tax either.</p>
<h2>If it's a tax avoidance scheme, then no <em>and</em> it's a crime</h2>
<p>Assuming that there is no sales tax payable on a gift; if John and David entered into this arrangement (not a contract because of its illegal purpose) to avoid tax, then tax is payable <em>and</em> they are now criminals.</p>


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<p>If the relevant tax authority learns what happened and decides to investigate, then John and David might have some explaining to do. If David can show that he has routinely given John large cash gifts on John's birthday, then they may convince the authority not to prosecute. If they can't, then they get to try to convince a judge.</p>
<p>It is not atypical for tax law to reverse the onus of proof: the government doesn't have to prove tax is payable, John and Dave have to prove it isn't.</p>


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Answer 2: <p><a href="/questions/tagged/british-columbia" class="post-tag" title="show questions tagged &#39;british-columbia&#39;" aria-label="show questions tagged &#39;british-columbia&#39;" rel="tag" aria-labelledby="tag-british-columbia-tooltip-container">british-columbia</a></p>
<blockquote>
<p>If you receive a vehicle as a gift you must pay [provincial sales tax] on the fair market value of the
vehicle, unless a specific exemption applies.</p>
<p>(British Columbia, &quot;<a href="https://www2.gov.bc.ca/assets/gov/taxes/sales-taxes/publications/pst-308-vehicles.pdf" rel="noreferrer">PST on Vehicles</a>&quot;, p. 10)</p>
</blockquote>
<p>There are exemptions for inheritance, relatives, charities, lotteries, and transfers during property division during dissolution of a marriage or marriage-like relationship.</p>


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</blockquote>
<p>There are exemptions for inheritance, relatives, charities, lotteries, and transfers during property division during dissolution of a marriage or marriage-like relationship.</p>
<p><a href="/questions/tagged/saskatchewan" class="post-tag" title="show questions tagged &#39;saskatchewan&#39;" aria-label="show questions tagged &#39;saskatchewan&#39;" rel="tag" aria-labelledby="tag-saskatchewan-tooltip-container">saskatchewan</a></p>
<p>Since the vehicle is worth $5,000 or less, the transfer is exempt from taxation (Saskatchewan, &quot;<a href="https://www.sets.saskatchewan.ca/rptp/wcm/connect/d822db11-55f6-4cc9-a5da-440119e10884/PST-58+Used+Goods.pdf?MOD=AJPERES&amp;CACHEID=ROOTWORKSPACE-d822db11-55f6-4cc9-a5da-440119e10884-mDb1bE7" rel="noreferrer">Information Bulletain: PST-58</a>&quot;).</p>


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<p><a href="/questions/tagged/nova-scotia" class="post-tag" title="show questions tagged &#39;nova-scotia&#39;" aria-label="show questions tagged &#39;nova-scotia&#39;" rel="tag" aria-labelledby="tag-nova-scotia-tooltip-container">nova-scotia</a></p>
<p>If you receive a vehicle as a gift, you will generally have to pay tax based on the fair value of the vehicle determined using the <a href="https://www.canadianredbook.com/" rel="noreferrer">Canadian Red Book</a> listing or a review by the Provincial Tax Commission (Nova Scotia, &quot;<a href="https://beta.novascotia.ca/sites/default/files/documents/1-1872/tax-privately-purchased-vehicles-what-you-need-know-en.pdf" rel="noreferrer">Tax on Privately Purchased Vehicles</a>&quot;).</p>


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Answer 3: <p>As you likely expect, most locales have laws to handle these sorts of attempted workarounds.  In <a href="/questions/tagged/texas" class="post-tag" title="show questions tagged &#39;texas&#39;" aria-label="show questions tagged &#39;texas&#39;" rel="tag" aria-labelledby="tag-texas-tooltip-container">texas</a> for example (<a href="https://comptroller.texas.gov/taxes/publications/96-254/gift.php" rel="nofollow noreferrer">source</a>), transferring a motor vehicle for $0 is considered a &quot;gift&quot; if the recipient is an immediate family member, estate, or non-profit organization. Such a gift is subject to a gift tax (currently $10).  The recipient is merely a friend in your scenario, so the following rule would apply:</p>
<blockquote>
<p>The transfer of a motor vehicle for no consideration, that does
not qualify as a gift, is taxed as a sale and SPV procedures may
apply.</p>
</blockquote>


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<blockquote>
<p>The transfer of a motor vehicle for no consideration, that does
not qualify as a gift, is taxed as a sale and SPV procedures may
apply.</p>
</blockquote>
<p>SPV is the &quot;<a href="https://comptroller.texas.gov/taxes/publications/96-254/spv.php" rel="nofollow noreferrer">Standard Presumptive Value</a>&quot;. You can think of this as the average selling price for that specific vehicle.  So in other words, you'll have to pay the same taxes as if the car was sold for a fair price.</p>
<p>&quot;Hey, that's easy to get around as well.  I'll sell it for $10, that way it's not a transfer 'for no consideration'!&quot;</p>


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<p>&quot;Hey, that's easy to get around as well.  I'll sell it for $10, that way it's not a transfer 'for no consideration'!&quot;</p>
<p>When you buy a vehicle, the law says you pay tax on &quot;the greater of the sales price or 80 percent of the vehicle’s SPV&quot;. If you try to cheat the tax man by selling the vehicle for an unreasonably low price, you'll be taxed based on the SPV instead.  If the car you're buying is in awful condition and its actual value is much less than the SPV, you can avoid being taxed on the greater amount by presenting &quot;a valid certified appraisal&quot; that confirms the vehicle's fair market price.</p>


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Answer 4: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<h2>The IRS</h2>
<p>The IRS <a href="https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes" rel="nofollow noreferrer">has &quot;gift taxes&quot;</a>.   Generally the donor pays, but there are fairly large exemptions.</p>


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<p>However, you are using <em>reciprocal gifts</em> to conceal what's actually a barter. (well a barter with money on one leg is technically a sale).  IRS casts a wide net looking for such transactions: to show the extremes to which they go, consider three brothers each with a trust fund for their children. The brothers wanted to gift six times the legally exempt amount for in-family giving... so they made a pact for each brother to give to all three trust funds, and their spouses to do the same. IRS objected and <a href="http://archives.cpajournal.com/2000/0200/nv7200.html" rel="nofollow noreferrer">tax court sided with IRS</a>.  So no, the illusionary gifts will not be treated as such, and will be treated as a barter or sale.</p>


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<p>At the Federal level, the sale would not be a taxable event:  First, <em>buying things</em> doesn't create income tax.  The seller would only need to pay income tax on the net profits, meaning sale price minus what they paid for it.  And since cars generally decline in value, they probably have a higher cost basis than they sold it for, so no tax owed.</p>
<p>As such, it is unlikely that the IRS would take an interest in this transaction - the juice isn't worth the squeeze... <strong>But don't confuse &quot;no penalty&quot; with &quot;lawful&quot;</strong>.  The &quot;fake gifts&quot; equating to a barter or sale is absolutely not lawful.</p>
<h2>The states</h2>


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<h2>The states</h2>
<p>It will matter to the state on a couple of levels.  First, most states will want to collect <em>sales tax</em>, and this process is generally built right into the vehicle titling and registration system.  Second, in many states the registration fee is based on the sales price.  In both these cases, the state will have a stake, and will see things the same way the IRS does.  So they certainly will see this as an attempt at tax fraud, and they will consider the juice to be worth the squeeze.</p>


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Question Title: Does double jeopardy apply if you commit the same crime twice?

Question Body: <p>Suppose someone were to rob a convenience store, be charged with robbery, then be found not guilty in court. After they are found innocent, that same person robs the same convenience store again. Would that person be protected from a charge of the same law by rule of double jeopardy?</p>


Answer 1: <p>No. Double jeopardy would not apply.</p>
<p>You can't be prosecuted twice for committing the same (or a lesser included crime) arising from the same incident twice.</p>
<p>If you commit a new crime you can be prosecuted for that new offense, even if you were acquitted of committing a similar offense at a different time and place in the past.</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>The second prosecution could proceed</h3>
<p>The principle against double jeopardy, reflected in <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art11h.html" rel="nofollow noreferrer">s. 11(h) of the <em>Charter</em></a> and in the special plea of <em>autrefois acquit</em> only precludes a successive prosecution for the very same wrong or &quot;delict.&quot;</p>


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<p>A person may not be placed twice in jeopardy &quot;upon the same facts&quot; (<a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/4274/index.do" rel="nofollow noreferrer"><em>Kienapple v. The Queen</em>, [1975] 1 S.C.R. 729</a>). A new instance of the offence is not &quot;the same facts&quot;: &quot;<strong>offenders have always been exposed to criminal liability for each occassion on which they have transgressed the law</strong>&quot; (<a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/174/index.do" rel="nofollow noreferrer"><em>R. v. Prince</em>, [1986] 2 S.C.R. 480</a>).\</p>
<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>


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<p>I agree with <a href="https://law.stackexchange.com/a/93212/46948">ohwilleke's statement</a> of U.S. law; I disagree with paragraphs 2 and 3 of <a href="https://law.stackexchange.com/a/93222/46948">Acccumulation's answer</a>. A successive prosecution of a lesser or a greater included offence <em>is</em> prohibited by the rule against double jeopardy. See <a href="https://supreme.justia.com/cases/federal/us/432/161/" rel="nofollow noreferrer"><em>Brown v. Ohio</em>, 432 U.S. 161 (1977)</a>, which was precisely on this issue.</p>


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Answer 3: <p>Double Jeopardy prohibits prosecution on the same facts. So if one prosecution is based on you robbing a convenience store on Monday, and another prosecution is based on you robbing a convenience store on Tuesday, then Double Jeopardy doesn't prohibit both prosecutions.</p>
<p>This then is a bit of a loophole, as if there's a law that says that it's illegal to rob a convenience store, and another law that says that it's illegal to engage in robbery on Monday, then &quot;You robbed a store, and it was a convenience store&quot; and &quot;You robbed a store, and you did it on Monday&quot; would be different sets of facts, and so you could be prosecuted twice, once for each law. So if the legislature really wanted to, they could write a bunch of laws that all slightly differ, and allow people to be prosecuted over and over again without it being considered a violation of Double Jeopardy.</p>


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<p>There does have to be at least one element in the first charge that isn't included in the new one, though. So if you are first charged under a law that prohibits robbing a convenience store on a Monday, and are acquitted, and then charged under a law that prohibits robbing convenience stores without regard to the day, then the second prosecution is not prohibited, because there's an element of the first charge (day of the week) that isn't included in the second. But if you're first charged under a law that prohibits robbing convenience stores without regard to the day and are acquitted, and then charged under a law that prohibits robbing a convenience store on a Monday, then that prosecution is prohibited, because all of the elements of the first charge are present in the second. Basically, if you didn't rob a store, then it logically follows that you didn't rob a store on Monday. But if you didn't rob a store on Monday, it doesn't logically follow that you didn't rob a store at


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if you didn't rob a store, then it logically follows that you didn't rob a store on Monday. But if you didn't rob a store on Monday, it doesn't logically follow that you didn't rob a store at all.</p>


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<p>Double Jeopardy also doesn't protect against prosecution by different jurisdictions, so if Mexico charges you with smuggling drugs into the US and you're acquitted, the US can still prosecute you. Not only are different countries considered different jurisdictions, but states within the US are considered different from each other and from the federal government.</p>


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Question Title: Is the purchaser of a company responsible for guarantees made by the seller of the company, if it is Not specified in the contract of sale?

Question Body: <p>If company A sold its business to company B, which company, A or B is responsible for &quot;service guarantees&quot; made by company A in the event the contract of sale does not address this matter?  Company B will not take responsibility for the cost of labor Guaranteed by company A and is billing clients.  Company A no longer exists, and the client is Sueing company B.  The companies are in New Jersey. Please advise.</p>


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Answer 1: <p>Obligations are between the customer and A. That does not change as long as A and B remain separated entities (i.e. there is no merger) or there is some kind of contract that alters it.</p>
<p>There are lots of variations. Did A separate those operations into C (at some point the customer should have agreed to that) and then sold C to B? Did A just &quot;sell&quot; the existing contracts to B (again the customer should have agreed, and then B is the one with the obligation of the customer agreed)?</p>
<p>For some forms of company, B as an owner could no on the hook for A debts, if it goes into bankruptcy, but that would not depend on the legal firm if the company and would have equally affected the previous owner equally.</p>


Tags: liability


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Question Body: <p>I am a PA resident and purchased the services of a career service company based in FL for 5k. The payments were deferred for the first month, so I have neither made any payments nor received any services from them. I decided to cancel on the second day after some unexpected news changed my financial situation.</p>
<p>The contract had a part about recission:</p>
<blockquote>
<p>Customer may rescind this Agreement, without any penalty or obligation, within three (3) business
days after the signing this Agreement. To do so, Customer must mail or deliver a signed and dated copy of
the cancellation notice found at the end of the signed version of this Agreement, or any other written notice
of cancellation, or send a telegram containing a notice of cancellation to XYZ no later than midnight of the date of this Agreement.</p>
</blockquote>
<p>The contract had a notice of cancellation attached and said</p>
<blockquote>


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</blockquote>
<p>The contract had a notice of cancellation attached and said</p>
<blockquote>
<p>You may cancel this transaction, without any penalty or obligation, within three business days from the
above date.</p>
</blockquote>
<p>Later in the notice of cancellation,</p>
<blockquote>
<p>To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice or any other
written notice, or send a telegram, to XYZ not later than midnight of 6/18/23</p>
</blockquote>
<p>The above date mentioned was listed as 6/15.  6/16, I notified them via email, phone call, and sent a 1-day shipping printed, signed and dated copy of the notice of cancellation.  However, the company uses a rented mailbox service which won't be open until Mon. 6/19 (which happens to be a new federal holiday).</p>
<p>I have three questions:</p>
<ol>


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<p>I have three questions:</p>
<ol>
<li>What is the correct date of &quot;three business days?&quot;  Excluding weekends and federal holidays, it appears that three business days would be Wed. 6/21!</li>
<li>What is the date the notice is &quot;mailed or delivered?&quot;  Is it the postmark date or the date that it shows up in their mailbox?  It will be delivered 6/17, but they wouldn't receive it until 6/19 at the earliest.</li>
<li>Will I still be on the hook for payments due to a typo in their notice of cancellation stating 6/18 was three business days ahead?</li>
</ol>


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Answer 1: <p>The reason for the &quot;mail or deliver&quot; language is that it encompasses the possibility that you walk into the company's offices and hand an employee there the required notice letter, without using the postal system. The date &quot;mailed or delivered&quot; is the postmark date if you mail it, or the date the letter goes from your hands to the company's if you deliver it yourself. It isn't the date that the postal service makes their delivery.</p>


Answer 2: <p>1.)  Correct.
2.) Typically, if there is a postmarked, it was mailed on the day of the mark, not the day of receipt.  6/19 is a federal holiday so the mail won't be delivered until 6/20 at the earliest.
3.) Likely not.  The mis-info is likely because the computers calculating the expected date did not factor in the 6/19 Juneteenth Holiday.  It only became a federal holiday 2 years ago.</p>


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Answer 3: <h2>“Mailed” is when you post it, “delivered” is when they receive it</h2>
<p>You mail something when you deposit it in a post box or hand it over to the post office. Not when it is postmarked (which would normally be the same day) nor when it is delivered (if it ever is). If the Post Office loses your letter and the recipient never gets it, it has still been mailed.</p>
<p>You might need to prove that you mailed it. A receipt from the Post Office or photos of you putting it, stamped, in a post box, for example.</p>
<h2>We can’t tell you when 3 business days without seeing how the contract defines a business day</h2>
<p>There isn’t a standard definition of “business day”, or rather it can mean different things in different contexts. A well drafted contract will define terms that can be ambiguous.</p>


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<p>There isn’t a standard definition of “business day”, or rather it can mean different things in different contexts. A well drafted contract will define terms that can be ambiguous.</p>
<p>Absent a definition, the context will determine what days are and what days are not business days. Weekends might be business days for a business that holds itself out to be a 24/7 operation, for example.</p>


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Question Title: Force allowed against pickpocket

Question Body: <p>If a victim catches a pickpocket in the act, what degree of force is legally justified by the victim against the pickpocket, given that pickpockets do not usually pose a threat of violence, but the victim wants their property back?</p>
<p>Can the victim grab, tackle, or punch the pickpocket? Can the victim say, &quot;Give back my wallet or I will punch you&quot;? Can the victim shoot the pickpocket and claim heat of passion as a defense? Does the answer vary depending on which of the two people would be at an advantage in a physical confrontation, based on size, age or gender?</p>


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Answer 1: <p><a href="/questions/tagged/colorado" class="post-tag" title="show questions tagged &#39;colorado&#39;" aria-label="show questions tagged &#39;colorado&#39;" rel="tag" aria-labelledby="tag-colorado-tooltip-container">colorado</a></p>
<p>In the U.S., this is largely a question of state law and while similar from state to state, it is  not identical.</p>
<p>In Colorado, which basically follows the majority rule, there are a couple of justifications that could be available: (1) the use of force justified for defense of property, and (2) the use of force justified for a citizen's arrest.</p>
<p>In the case of defense of property, the rule is as follows:</p>
<blockquote>
<p>Use of physical force in defense of property</p>
<p>A person is justified in using reasonable and appropriate physical
force upon another person when and to the extent that he reasonably
believes it necessary to prevent what he reasonably believes to be an


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force upon another person when and to the extent that he reasonably
believes it necessary to prevent what he reasonably believes to be an
attempt by the other person to commit theft, criminal mischief, or
criminal tampering involving property, but he may use deadly physical
force under these circumstances only in defense of himself or another
as described in section 18-1-704.</p>
</blockquote>
<p>Colo. Rev. Statutes § 18-1-706.</p>
<p>In the case of a citizen's arrest, the rule is:</p>
<blockquote>
<p>A private person acting on his own account is justified in using
reasonable and appropriate physical force upon another person when and
to the extent that he reasonably believes it necessary to effect an
arrest, or to prevent the escape from custody of an arrested person
who has committed an offense in his presence; but he is justified in
using deadly physical force for the purpose only when he reasonably
believes it necessary to defend himself or a third person from what he


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using deadly physical force for the purpose only when he reasonably
believes it necessary to defend himself or a third person from what he
reasonably believes to be the use or imminent use of deadly physical
force.</p>
</blockquote>
<p>Colo. Rev. Stat. § 18-1-707(7).</p>
<blockquote>
<p>Can the victim shoot the pickpocket and claim heat of passion as a
defense?</p>
</blockquote>
<p>No.</p>
<p>Deadly force is not authorized against a pickpocket, and shooting someone almost always counts (often by definition) as a use of deadly force.</p>
<p>The &quot;heat of passion&quot; defense only downgrades a murder charge to manslaughter and probably wouldn't apply in any case in these circumstances.</p>
<blockquote>
<p>Can the victim grab, tackle, or punch the pickpocket? Can the victim
say, &quot;Give back my wallet or I will punch you&quot;?  Does the answer vary
depending on which of the two people would be at an advantage in a
physical confrontation, based on size, age or gender?</p>


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depending on which of the two people would be at an advantage in a
physical confrontation, based on size, age or gender?</p>
</blockquote>
<p>The law doesn't answer these question at this level of specificity.</p>
<p>Whether the force used was &quot;reasonable and appropriate&quot; and was &quot;reasonably believed to be necessary&quot; are determined after the fact on a case by case basis by the finder of fact (i.e. the judge in a bench trial, or the jury in a jury trial).</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>Force could be justified as defence of property (<a href="https://laws-lois.justice.gc.ca/eng/acts/C-46/section-35.html" rel="nofollow noreferrer"><em>Criminal Code</em>, s. 35</a>) or as a citizen's arrest (<a href="https://laws-lois.justice.gc.ca/eng/acts/C-46/section-494.html" rel="nofollow noreferrer"><em>Criminal Code</em>, s. 494</a>).</p>
<h3>Defence of property</h3>
<p>The act committed in defence of property must be &quot;reasonable in the circumstances&quot; (s. 35(1)(d)). The Supreme Court has said (<a href="https://canlii.ca/t/29k4c#par21" rel="nofollow noreferrer"><em>R. v. Szczerbaniwicz</em>, 2010 SCC 15, paragraph 21</a>):</p>
<blockquote>


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<blockquote>
<p>The reasonableness of “all the circumstances” necessarily includes the accused’s subjective belief as to the nature of the danger or harm, but the objective component of the defence is also required: the subjective belief must be based on reasonable grounds. ...</p>
</blockquote>
<p>This includes a consideration of subjective <em>and</em> objective criteria, including the value of the property and risk of harm to the property as part of the proportionality analysis (see <a href="https://canlii.ca/t/29k4c#par21" rel="nofollow noreferrer"><em>R. v. Szczerbaniwicz</em>, 2010 SCC 15, paragraphs 21-24</a>).</p>
<h3>Citizen's arrest</h3>
<p>See <a href="https://canlii.ca/t/j8dzc#par232" rel="nofollow noreferrer"><em>R. v. Theriault</em>, 2020 ONSC 3317, paragraphs 232-233</a></p>
<blockquote>
<p>Where an arrest requires the use of force, the person conducting the arrest must use only the amount of force that is reasonably required in the circumstances. ...</p>


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<blockquote>
<p>Where an arrest requires the use of force, the person conducting the arrest must use only the amount of force that is reasonably required in the circumstances. ...</p>
<p>Assessing whether the degree of force used to conduct an arrest is justified is not an exercise of exactitude. The court should not hold a person conducting an arrest to a standard of perfection. A person conducting an arrest is often placed in a dangerous, fast-paced situation where it may be difficult, if not impossible, to measure the degree of force required with precision. ...</p>
</blockquote>


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Question Title: Is it legal for employers to charge for training if you leave too soon?

Question Body: <p>Apparently, some employers are requiring new employees to sign a contract that says, “We will provide training. You must work here for at least N months. If you leave before that, you will have to pay us back $XXXX for the training.</p>
<p>Are these contracts enforceable? Some people claim that they are a form of indentured servitude and that this is illegal in the US.</p>


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Answer 1: <p>There is a reason these are commonly called &quot;TRAP&quot;s (<strong>T</strong>raining <strong>R</strong>epayment <strong>A</strong>greement <strong>P</strong>rovision).  These agreements don't just protect the employer from paying for training that an employee can use elsewhere. These agreements frequently act to &quot;trap&quot; the employee in difficult employment circumstances where the employer can demand long hours and excessive dedication in difficult jobs for little pay, knowing that if the employee tries to leave, they could face a substantial financial burden.</p>
<p>These agreements are generally legal, provided they are executed in good faith.
However, certain circumstances have been used to void the agreements.</p>
<h2>In particular:</h2>
<ul>


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<p>These agreements are generally legal, provided they are executed in good faith.
However, certain circumstances have been used to void the agreements.</p>
<h2>In particular:</h2>
<ul>
<li><p>If the cost or value of the the training is vastly overstated, so the training actually provides minimal value to the employee, but has a disproportionately large repayment cost that only benefit the employer.</p>
</li>
<li><p>If the term of the agreement is excessively long (typically, more than 1 year).  Training is unlikely to be so valuable and specialized that the employee would need years to repay the benefits. (Certain exceptions apply, such as for advanced engineering work or specialized skills like airline pilots)</p>
</li>
<li><p>If the &quot;training&quot; doesn't actually have much value; if the training is just company propaganda and policies, rather than job specific skills, repayment costs are unlikely to hold up in a dispute.</p>
</li>


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</li>
<li><p>If the employee already has demonstrated skills before the training, then forcing them into unnecessary training just for a TRAP contract is unlikely to be supported. For example, someone with years of skilled electrical design work probably cannot be forced to repay thousands of dollars of &quot;training&quot; for a few weeks of basic electrical refresher courses.</p>
</li>
</ul>
<p>Basically, if the training isn't valuable to the employee and the cost isn't reasonable for the training, the TRAP line can frequently be voided.  Yet doing so almost always requires mediation or a suit, which are also expensive, time consuming, and have uncertain outcomes.</p>


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<p>Its best for a prospective employee to call out a TRAP provision as a red flag before accepting an offer, and avoid it if at all possible unless they truly believe they'll benefit from the training, intend to stay the full term, and understand the employer might use the cost as a way to expect more from them or hold back their professional advancement.</p>


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Question Title: What does it mean to &quot;prefer&quot; a lawsuit, and how is it different from filing?


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Question Body: <p>In <a href="https://www.huffpost.com/entry/after-19year-probe-feds-k_b_8443130" rel="nofollow noreferrer">an article</a> quoted by <a href="https://skeptics.stackexchange.com/questions/55727/did-the-aclu-prepare-a-lawsuit-against-the-young-womens-leadership-school-of-ea">a recent Skeptics.SE answer</a>, there is the following sentence:</p>
<blockquote>
<p>We had <strong>preferred</strong> but couldn't file a lawsuit because no boy presented himself as a plaintiff for admission to the Young Women's Leadership School.</p>
</blockquote>


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<blockquote>
<p>We had <strong>preferred</strong> but couldn't file a lawsuit because no boy presented himself as a plaintiff for admission to the Young Women's Leadership School.</p>
</blockquote>
<p>Commenters were wondering about the meaning of &quot;preferred&quot;.  It could be a typo for &quot;prepared&quot;, or a grammatical error in saying that they preferred <em>to</em> file a lawsuit.  But &quot;prefer&quot; also seems to have a technical legal meaning, e.g. <a href="https://en.wiktionary.org/wiki/prefer" rel="nofollow noreferrer">Wiktionary</a> has &quot;To present or submit (something) to an authority (now usually in 'to prefer charges')&quot;.  However, that would seem at first glance to correspond to <em>filing</em> the lawsuit, which is just what the author said they could not do.  So maybe there are separate steps involved?</p>


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<p>Can someone explain what is probably meant by this passage?  What specific steps toward a lawsuit is the author saying that the plaintiffs took, and which steps were they unable to take?</p>
<p>The article's author is a lawyer, so I would assume by default that they are familiar with the terms, and that the usage is deliberate instead of a mistake.  The lawsuit in question would have been in US federal court.</p>


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Answer 1: <p>The word is not being used in the technical sense here, and is not a mistake.</p>
<p>The legal term you are thinking that they might have been intending to use is &quot;<a href="https://www.merriam-webster.com/dictionary/proffer" rel="nofollow noreferrer">proffered</a>&quot;. But that wasn't the word that they were trying to use.</p>
<p>The author is saying that their first choice of legal tactics would have been to file a civil lawsuit with a test plaintiff, who is a boy seeking to be admitted to the Young Women's Leadership School. But, because they could not manage to make this ideal legal tactic work, because they could find a boy willing to do so, they chose to take their Plan B legal tactic instead.</p>


Tags: united-states, legal-terms, civil-rights


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Question Title: Copyright status of a letter on U.S. Senator&#39;s letterhead

Question Body: <p>Under <a href="https://www.law.cornell.edu/uscode/text/17/105" rel="nofollow noreferrer">17 USC 105</a>, there is no copyright protection for a &quot;work of the United States Government,&quot; which <a href="https://www.law.cornell.edu/uscode/text/17/101" rel="nofollow noreferrer">17 USC 101</a> defines as &quot;a work prepared by an officer or employee of the United States Government as part of that person’s official duties.&quot;</p>
<p>What would be the copyright status of a letter written to a private individual by a U.S. senator on official letterhead? Assume that the subject matter is not any official act of government, but falls under the category of constituent relationship building and getting re-elected.</p>
<p>I'm guessing the senator would hold copyright, but I wonder if anyone knows for sure.</p>


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Answer 1: <p>The Copyright Office has determined, in <a href="https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf" rel="nofollow noreferrer">chapter 300</a> of the <em>Compendium of U.S. Copyright Office Practices,</em> on page 36, that the copyright bar extends to</p>
<blockquote>
<p>works created by the President; <strong>Congress;</strong> the federal judiciary;
federal departments, agencies, boards, bureaus, or commissions; or any other officer or employee of the U.S. federal government while acting within the course of his or her official duties.</p>
</blockquote>


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</blockquote>
<p>So the Senator is a US employee for copyright purposes, at least according to the US Copyright Office. Technically, this is interpretation rather than law, and in theory a court might disagree, but if anyone is qualified to speak on this issue, it's the Copyright Office. In my opinion, it is most reasonable to assume that the Copyright Office is correct in their interpretation unless there is case law directly contradicting them.</p>


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<p>The only question is whether the letter was created by the Senator &quot;while acting within the course of his or her official duties.&quot; I'm not aware of any case law suggesting that constituent building is or is not an &quot;official duty&quot; of a US Senator, and there are reasonable arguments to be made in both directions. On the one hand, the letter is clearly beyond the scope of Congress's lawmaking and oversight Constitutional functions. On the other, the office of Senator is an inherently political office, and a case can be made that campaigning for reelection is part of the job. Perhaps surprisingly, <em>that</em> question was extensively litigated during E. Jean Carroll's first defamation lawsuit against Donald Trump, because Trump argued that his statements about Carroll were within the scope of his employment (and so a defamation claim would be effectively barred under the Westfall Act). To my understanding, the current disposition of that lawsuit is that this is


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were within the scope of his employment (and so a defamation claim would be effectively barred under the Westfall Act). To my understanding, the current disposition of that lawsuit is that this is considered a question of fact for a jury to decide (at least <a href="https://www.documentcloud.org/documents/23785422-carrollca2opn042123" rel="nofollow noreferrer">according to the Second Circuit</a>).</p>


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<p>What can be said is who does <em>not</em> hold copyright: The US Senate and/or the US government as a whole. The only way the Senate could acquire copyright in this letter (short of the Senator directly granting it to them) would be as a work made for hire, but the work-for-hire doctrine requires that the work be prepared by an employee as part of their official duties, just like the federal copyright bar. So the Senate cannot acquire copyright in this manner. If anyone owns the copyright, it is most likely the Senator.</p>


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Question Body: <p>My question is inspired by <a href="https://law.stackexchange.com/questions/93214">this one</a>, but it’s not the same.</p>
<p>It is my understanding that the federal law-enforcement officers who seized the boxes of documents held by “45” expected to find some papers that were confidential, secret, or top secret, eyes only, etc. So, I can understand that <em>some</em> form of security clearance was given to them, as explained in the answers to the above-mentioned question.</p>
<p>But let’s imagine, for the sake of argument, that law-enforcement officers had been exerting a warrant <strong>for a different reason</strong> than looking for classified documents—let’s say they had been looking for illegal drugs—but then stumbled upon them while performing their search for said drugs. Let’s even say the drugs were hidden in the same boxes.</p>


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<p>Heck, for the sake of argument, let’s say a John Doe with some moral conscience had stumbled upon the documents, for example while using the washroom where they were hidden.</p>
<p>My question is thus: Would these law-enforcement officers or John Doe be “forgiven” from seeing the classified documents? It’s not like they <em>knew</em> there were classified documents there, and they just stumbled upon them…</p>
<p>What would happen to them, legally?</p>


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Answer 1: <p>There is nothing to forgive.</p>
<p>The question presupposes that it is a crime to lay eyes on classified information.  Crimes related to classified information generally have an element of intent.  For example, from <a href="https://www.law.cornell.edu/uscode/text/18/793" rel="nofollow noreferrer">18 USC 793</a> (emphasis added):</p>
<blockquote>
<p>(a) Whoever, <strong>for the purpose of obtaining information respecting the national defense with intent or reason to believe</strong> that the information is to be used to the injury of the United States, or to the advantage of any foreign nation ...</p>
<p>(b) Whoever, <strong>for the purpose aforesaid, and with like intent or reason to believe</strong> ...</p>
</blockquote>
<p>The other subsections are similar, but subsection (e) is most directly applicable to the present hypothetical, so here it is in full:</p>
<blockquote>


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<blockquote>
<p>(e) Whoever having <strong>unauthorized</strong> possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, <strong>willfully</strong> communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, <strong>or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it</strong>;</p>
</blockquote>


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</blockquote>
<p>Seeing the files is not <em>per se</em> a crime.  Finding the files and failing to ensure that they are returned to the government (or retuning them to the government while transmitting the information to unauthorized parties) is a crime.</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>It is hard to prove a negative, so I will restrict my consideration to the kinds of offences with which Donald Trump was himself charged with under the <em>Espionage Act</em> (<a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-37" rel="nofollow noreferrer">18 U.S.C. c. 37</a>).</p>
<p>None of the offences there would capture the activity you have described: &quot;<a href="https://www.lawfareblog.com/espionage-act-after-mar-lago-indictment" rel="nofollow noreferrer">Courts have also interpreted the act’s willfulness requirement to signify a knowing violation of the law</a>.&quot;</p>


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<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>In Canada, an absolute-liability offence that comes with a risk of imprisonment would be inconsistent with s. 7 of the <em>Charter</em> and would be of no force or effect (<a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/100/index.do" rel="nofollow noreferrer"><em>Re B.C. Motor Vehicle Act</em></a>, [1985] 2 S.C.R. 486). An offence that carries a risk of imprisonment must be predicated on knowledge or wilfullness or have due diligence available as a defence. So, it would not be constitutional in Canada for the offences in the <em>Espionage Act</em> (which carry a risk of imprisonment) to capture the circumstances you've described.</p>


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Question Title: Does banning someone require any formalities?

Question Body: <p>For example, to be banned from a store that the public is allowed into, does a manager speaking the words &quot;you're banned&quot; count as enough? Is any sort of documentation required? Does it make a difference if there's a reason and if the person is already in the store?</p>


Answer 1: <h2>No</h2>
<p>Once a person in control of a property has withdrawn your permission to be there, you must leave as soon as practicable or become a trespasser.</p>


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Answer 2: <p>No. All that matters is that the individual is made aware that they are banned.</p>
<p>The store is private property as you say. That private property gives the general public permission to enter at certain times. This permission can be withdrawn at any time, for any or no reason (barring unlawful discrimination).</p>
<p>I work in retail and we do have a formal procedure to ban someone. It involves a form which is filled out and signed by both parties. In theory this prevents cases like this where the individual claims not to know they are banned (as well as a paper trail). In practice I don't think we've ever used it- there's never been a case where the individual being ejected is cooperative enough to sign it. Procedure is usually the individual being told not to come back while they shout obscenities.</p>
<p>The same applies to being in the store and being told to leave. Once you have been told to leave you no longer have permission to be on the property.</p>


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Question Title: What laws prohibit the importation of pornography into the US?

Question Body: <p>I don't quite understand why in the San Francisco Airport, when people land, the sign says, &quot;No pornography is allowed to be brought into the US&quot;, when you can leave the airport, drive 15 minutes to an adult video shop and put in coins and watch all you want, or go to a hotel 10 minutes away and also watch hundreds of pornography videos for $9.99 each.</p>
<p>Also, people can go home, and order pornography subscriptions either from a US company or from a foreign company using the internet.</p>
<p><strong>What law does this sign refer to?</strong></p>


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Answer 1: <p>This refers to the prohibition found at <a href="https://www.law.cornell.edu/uscode/text/19/1305" rel="nofollow noreferrer">19 U.S. Code § 1305</a></p>
<blockquote>
<p>(a) <strong>Prohibition of importation</strong></p>
<p>All persons are prohibited from importing into the United States from any foreign country [...] any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is <strong>obscene or immoral</strong>...</p>
</blockquote>
<p>What constitutes &quot;obscene or immoral&quot; is subjective and determined on a case-by-case basis, for example by applying the <a href="https://en.m.wikipedia.org/wiki/Miller_test" rel="nofollow noreferrer"><em>Miller test</em></a>, being:</p>
<blockquote>


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<blockquote>
<p>the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.</p>
</blockquote>
<p>The <em>Miller test</em> has three &quot;prongs&quot; which have to be satisfied for the material to be considered obscene:</p>
<blockquote>
<p>1 Whether &quot;the average person, applying contemporary community standards&quot;, would find that the work, taken as a whole, appeals to the prurient interest,</p>
<p>2 Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,</p>
<p>3 Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.</p>
</blockquote>


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Answer 2: <ol>
<li><p>You think this law makes no sense. But actually, you have two sets of laws, one about acquiring porn in the USA, one about importing, and each on its own is perfectly reasonable. It’s just the combination that is “interesting”. But you could as well complain about the other law.</p>
</li>
<li><p>Assume if creating porn in the USA was extremely well regulated, that is all actors are well paid, well looked after health wise, free to quit at any time and so on, and that’s why buying porn is legal. And assume that in other countries this is different, actors are forced to work, not paid and do on. Now it makes perfect sense to make imports illegal.</p>
</li>
</ol>


Tags: united-states, pornography, customs-law, import


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Question Title: How can Patient get a compounded medication tested, to determine if it was negligently compounded?


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Question Body: <p>A physician prescribed his lay Patient a medication that must be compounded. After consuming this medication, Patient suffered atypical serious side effects. After examination, a physician reckons that the end product may not match his prescription, and the Compounding Pharmacy may be negligent. Here is <a href="https://www.myopiaprofile.com/does-low-dose-atropine-cause-blurry-vision" rel="nofollow noreferrer">one real life example</a>.</p>
<blockquote>


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<blockquote>
<p><strong>Incorrect dispensing.</strong> A key consideration is a pharmacy dispensing error. In Australia, a <a href="https://www.optometry.org.au/patient_care_management/optometrists-urged-to-write-must-be-compounded-on-atropine-scripts-to-avoid-dispensing-errors/" rel="nofollow noreferrer">number of cases were reported in 2018 and 2019</a> where 1% atropine was dispensed to children where 0.01% atropine had been prescribed. In response, Optometry Australia recommended that atropine prescriptions include the specific note 'MUST BE COMPOUNDED' to avoid this dispensing error.</p>
</blockquote>
<p>But Pharmacy denies any wrongdoing, and insists that it dispensed the correct medication.</p>
<h3>Question</h3>
<h4>How can Patient get his compounded medication audited and inspected, to determine if the pharmacy dispensed exactly what the doctor ordered? Would Patient submit a sample of this medication to a laboratory? What kind of laboratories can assist Patient?</h4>


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<p>For example, presuppose a physician prescribed 0.01% Atropine. Then Pharmacy labelled the end product 0.01% Atropine. But it's impossible to distinguish 0.01% from 0.02%, 0.05%, etc. Atropine by eye. How can Patient determine if pharmacy truly dispensed 0.01% Atropine, or negligently dispensed some other wrong concentration?</p>


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Answer 1: <h2>You get a lab to test it</h2>
<p>You should clearly document the chain of custody (ideally with photos) from the unopened packaging to the lab. Any decent sized city will have several labs with the capability to tell you what’s in a pill and provide an expert report.</p>


Tags: canada, medical, negligence


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Question Body: <p>I am reading through these notes, trying to piece together a picture of what the rules/laws are regarding Wikipedia content:</p>
<ul>
<li><a href="https://en.wikipedia.org/wiki/Wikipedia:Mirrors_and_forks" rel="noreferrer">https://en.wikipedia.org/wiki/Wikipedia:Mirrors_and_forks</a></li>
<li><a href="https://en.wikipedia.org/wiki/Wikipedia:Reusing_Wikipedia_content" rel="noreferrer">https://en.wikipedia.org/wiki/Wikipedia:Reusing_Wikipedia_content</a></li>
<li><a href="https://en.wikipedia.org/wiki/Wikipedia:FAQ/Copyright#Can_I_reuse_Wikipedia%27s_content_somewhere_else" rel="noreferrer">https://en.wikipedia.org/wiki/Wikipedia:FAQ/Copyright#Can_I_reuse_Wikipedia's_content_somewhere_else</a>?</li>
</ul>


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</ul>
<p>I don't have any desire or intention of doing this myself, but I am wondering if I create a site like Wikipedia, which has &quot;freely licensed/usable content&quot;, if someone else is going to go ahead and clone my project and slap it under a new domain, change some fonts and colors, slap on a subscription fee and maybe some ads, and try and rank higher on Google Search so they become the dominant provider of <em>my</em> underlying content.</p>


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<p>So Wikipedia is a parallel, how does Wikipedia prevent someone from downloading a bulk dump of the whole site, putting it under their own custom domain like <code>freeknowledgefoo.com</code>, slap some ads around in the pages, and add a subscription fee. Then they maybe redesign a few things slightly (changing fonts and colors), and then for whatever reason they end up ranking higher than Wikipedia itself on Google and end up being used by default instead of Wikipedia. That would be a horrible scenario, which would mean that all the work is put into Wikipedia, but all the money is made by some copycat site.</p>
<p>How does Wikipedia prevent that?</p>


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<p>How does Wikipedia prevent that?</p>
<p>How could I prevent that if I am offering free data dumps of various kinds, but myself have a UI to view the data (like <a href="https://data.cityofnewyork.us/browse?sortBy=most_accessed&amp;utf8=%E2%9C%93" rel="noreferrer">NYC's open data site</a>). So you can download the dump and run the site yourself, or use my precomposed main website hosting and showing the data. How do I prevent users from just deploying my project on their own domain, slightly changing things, and then they run off with the future?</p>
<p>Is this what the &quot;ShareAlike&quot; license is for?</p>
<ul>
<li><a href="https://en.wikipedia.org/wiki/Wikipedia:Text_of_Creative_Commons_Attribution-ShareAlike_3.0_Unported_License" rel="noreferrer">https://en.wikipedia.org/wiki/Wikipedia:Text_of_Creative_Commons_Attribution-ShareAlike_3.0_Unported_License</a></li>
</ul>
<blockquote>
<p><strong>Creative Commons Deed</strong></p>


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</ul>
<blockquote>
<p><strong>Creative Commons Deed</strong></p>
<p>This is a human-readable summary of the full license below.</p>
<p>You are free:</p>
<ul>
<li>to Share—to copy, distribute and transmit the work, and</li>
<li>to Remix—to adapt the work</li>
</ul>
<p>for any purpose, even commercially.</p>
<p>Under the following conditions:</p>
<ul>
<li>Attribution—You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work.)</li>
<li>Share Alike—If you alter, transform, or build upon this work, you may distribute the resulting work only under the same, similar or a compatible license.</li>
</ul>
</blockquote>
<blockquote>
<p>With the understanding that:</p>
</blockquote>
<blockquote>
<ul>
<li><p>Waiver—Any of the above conditions can be waived if you get permission from the copyright holder.</p>
</li>


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<blockquote>
<p>With the understanding that:</p>
</blockquote>
<blockquote>
<ul>
<li><p>Waiver—Any of the above conditions can be waived if you get permission from the copyright holder.</p>
</li>
<li><p>Other Rights—In no way are any of the following rights affected by the license:</p>
</li>
<li><p>your fair dealing or fair use rights;</p>
</li>
<li><p>the author's moral rights; and</p>
</li>
<li><p>rights other persons may have either in the work itself or in how the work is used, such as publicity or privacy rights.</p>
</li>
<li><p>Notice—For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do that is with a link to <a href="https://creativecommons.org/licenses/by-sa/3.0/" rel="noreferrer">https://creativecommons.org/licenses/by-sa/3.0/</a></p>
</li>
</ul>
</blockquote>


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</li>
</ul>
</blockquote>
<p>I don't see anything saying you can't do what I describe. But maybe the fact that you have to have &quot;attribution&quot; is the key? I don't quite know how best to approach this situation. On one hand I would like to release data which is free and open source. On the other hand I don't want someone else to then run off with all of it and try and outcompete me with the same product I guess.</p>


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Answer 1: <p>It's allowed by the Creative Commons Attribution -ShareAlike license, and intentionally so. The Wikimedia Foundation <em>wants</em> things like this to be possible; that is part of the goal of open content. (This license is also used on Stack Exchange content, so the same applies to e.g. this answer.)</p>
<p>However, it is important to remember that this is <em>not</em> a public-domain equivalent license. If you copy from a Wikipedia article (or an SE post), you must comply with the &quot;Attribution&quot; and &quot;ShareAlike&quot; requirements.</p>
<ul>
<li>Attribution: You must give credit to the author. For Wikipedia articles, which typically have many authors, a link to the page is sufficient; editors agree to this in addition to the license when they save their edits. For Stack Exchange content, a link to the post itself should be enough. (To get a link to a post, click the &quot;share&quot; link below the post.)</li>


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<li>ShareAlike: If you modify the content, you must release your modified version under the same or a compatible license. You can't copy this answer, add more information (or translate it into another language, or make any other change), and keep an all-rights-reserved copyright on it, or release it into the public domain; your version must also be released under CC BY-SA.</li>
</ul>
<p>As long as you follow these requirements, copying is allowed and encouraged.</p>


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Answer 2: <p>&quot;they end up ranking higher than Wikipedia itself on Google&quot;. That's a <em>highly</em> unlikely scenario, unless you could somehow convince all current users of Wikipedia that switching to a paid page is better (for the same content!). Also, Google's high ranking of Wikipedia articles (together with often embedding parts of an article in its results) is hard coded and unlikely to change without the explicit interaction of a programmer at Google. As mentioned in <a href="https://en.wikipedia.org/wiki/Google_and_Wikipedia" rel="noreferrer">this article</a>, Google is a large donor to the Wikimedia Foundation, paying several million dollars a year. This was, according to the article, done to &quot;help reduce the pagerank of widespread, uneditable Wikipedia clones that were ostensibly ad farms.&quot;</p>


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<p>So indeed, such pages did exist and many still do. The <a href="https://en.wikipedia.org/wiki/Wikipedia:Mirrors_and_forks/ABC" rel="noreferrer">List of Forks known to Wikipedia</a> is almost endless. Some just clone a particular set of articles (for a particular topic) others really just wrap a new layout around the same content, adding poor navigation and advertisements. Many of the clones fail to follow the CC license requirement, giving the impression the content is their own. This is obviously a clear copyright violation.</p>


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Answer 3: <p>Wikipedia does not make <strong>any</strong> attempt to stop people creating and placing online copies of Wikipedia, or parts of it. Indeed it encourages people to do so. Not only does the CC-BY-SA 3.0 license explicitly allow this, Wikipedia provides free &quot;dumps&quot; on a regular Basis. Using these, anyone can copy the data behind any or all of Wikipedia's articles. It also provides free access to the software on which Wikipedia runs (<a href="https://en.wikipedia.org/wiki/MediaWiki" rel="nofollow noreferrer">MediaWiki</a>) and instructions on how to set it up, and how to load it with data from a dump.</p>
<p>The legal requirements imposed are to provide <em><strong>attribution</strong></em> and to offer the content under the same (or a compatible) license, that is, the CC-BY-SA 3.0 license.</p>


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<p>The legal requirements imposed are to provide <em><strong>attribution</strong></em> and to offer the content under the same (or a compatible) license, that is, the CC-BY-SA 3.0 license.</p>
<p>The license is simple, just include a note that the site is under the CC-BY-SA 3.0 license and a link to the text of the license.  Attribution is harder, because Wikipedia articles often have many authors. But it is generally agreed that one valid way to provide attribution is to link to the history page for the source article on Wikipedia. One could also copy the list of editors from the history, and post that for each article.</p>
<p>Many online copies of Wikipedia do not fully comply with this license, and are infringements of copyright. But the copyright is held by the individual contributors, not the Wikimedia foundation, and few if any of them care to sue over such infringements.</p>
<blockquote>


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<blockquote>
<p>I don't quite know how best to approach this situation. On one hand I would like to release data which is free and open source. On the other hand I don't want someone else to then run off with all of it and try and outcompete me with the same product I guess.</p>
</blockquote>


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</blockquote>
<p>Those desires are essentially contradictory.  If you post a work under a permissive license, such as the CC-BY-SA 3.0 license (or the very similar version 4.0 license which this post and all of Stack Exchange (SE) is offered under), you are saying that anyone in the world is free to copy the work for any purpose, including to sell access to it.  One could use the CC-BY-SA-NC licensee which forbids commercial reuse, or some other license that imposes restrictions that seem good to the person doing the posting. But attempting to check up on copies, and get commercial ones taken down or sued would be a full-time job for a team of people, if the site becomes at all popular. Wikipedia (and SE) has chosen not to try.</p>


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Answer 4: <p>As well as forks, there are also &quot;mirrors&quot;. These are like forks, but update regularly to match changes in Wikipedia, so don't end up becoming nothing but a one-off snapshot of the site. Again, nothing to stop you from charging for it. You may not even get your capital investment back though, and the ongoing expenses for a mirror would be higher too, due to higher energy and data usage from continually updating to keep up with Wikipedia. Even more so if you are also saving the intermediate revisions. &quot;Sure you can download Wikipedia, got several multi-terabyte hard drives sitting around?&quot;</p>


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Answer 5: <p>Yes, it can be done legally. Although creating a mirror is not that simple nowadays, as the complexity of the pages increased through the years (images, wikidata, LUA…). You would also need to keep them frequently updated to be competitive.</p>
<p>And, most importantly, you must correctly include the license of the content (CC-BY-SA for the text, varied for the images) and credit the authors (the author is not &quot;Wikipedia&quot;, but each of the contributors to that page, so you need a list of the authors. It might be enough linking to the Wikipedia history… or you could need your own copy - e.g. they could delete the page you are showing!).</p>
<p>Then, getting to the main issue, <strong>you are too expensive</strong>. You are providing a service (website with Wikipedia content) for a fee, that is provided for free by Wikipedia itself. And I would bet that better than you (faster to load, more up to date…)</p>


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<p>If you are offered a paid option and <em>exactly the same one</em> (and perhaps even better) for free, which one would you choose? :)</p>
<p>You would need to provide an additional value that people were willing to pay for. Perhaps, your website is available in a local community with no access to the internet. Or you printed this encyclopedia in paper form. Or you certify that your version does not contain any wrong fact. Or you made a deal with Chinese authorities so your website is available from China <a href="https://en.wikipedia.org/wiki/Internet_censorship_in_China#SSL_protocols" rel="nofollow noreferrer">while Wikipedia is not</a>.</p>
<p>Or a nuclear war ensued and yours is the only remaining copy of Wikipedia.</p>


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<p>Or a nuclear war ensued and yours is the only remaining copy of Wikipedia.</p>
<p>This is the same question that is sometimes raised with Free Software. You could repackage and resell for a hefty sum <a href="https://www.gimp.org/" rel="nofollow noreferrer">an image program</a>, <a href="https://www.mozilla.org/en-US/firefox/" rel="nofollow noreferrer">a web</a> <a href="https://www.chromium.org/Home/" rel="nofollow noreferrer">browser</a>, or even <a href="https://getfedora.org/" rel="nofollow noreferrer">a full</a> <a href="https://ubuntu.com/" rel="nofollow noreferrer">operating</a> <a href="https://www.freebsd.org/" rel="nofollow noreferrer">system</a> with little more than changing their names. <strong>But</strong> you must acknowledge who their authors are (you cannot pass it as made by you), and the right of anyone that receives it from you to give it to others for free.</p>
<p>So in the end the options to get money from that are generally</p>
<ul>


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<p>So in the end the options to get money from that are generally</p>
<ul>
<li>Get paid a nominal fee for the disks with the media (nobody would hardly pay more)</li>
<li>Get paid for providing <em>support</em> (helping people with issues, keep servers running…)</li>
<li>Get paid for <em>developing</em> it (there is a payment for the development of a feature, but from then on it is available to everyone for free)</li>
</ul>


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Question Body: <p>Recently, in Australia, a number of state governments have passed laws banning the display of Nazi symbols, and in the last few weeks, the federal government has been talking about passing a law about doing so as well.</p>
<p>However, shouldn't these laws violate the <a href="https://www.vgso.vic.gov.au/implied-constitutional-freedom-political-communication" rel="nofollow noreferrer">implied right to political speech</a> of the Australian constitution? If someone wanted to collect the signatures needed to found the Australian Nazi Party and run for parliament, shouldn't they have the right to do so, and to display the symbols of the party they intend to found as part of that effort? Shouldn't their supporters be able to display the symbols of their support for said party?</p>
<p>Is it possible that these laws <em>are</em> unconstitutional, and simply haven't been struck down by the courts yet?</p>


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Answer 1: <p><strong>An Australian Constitutional Analysis</strong></p>
<p>These laws are not unconstitutional in Australia because Australia's constitution does not expressly protect the freedom of speech or political expression, and because its implied protections are weak and are not individual rights.</p>
<p>The <a href="https://www.aph.gov.au/constitution" rel="nofollow noreferrer">Australian Constitution</a> is a document that sets forth the relative powers of the federal and state governments in Australia, and the organizational structure of the federal parliament, the cabinet, and the judiciary.</p>
<p>But, unlike many national constitutions, the Australian Constitution is not an instrument protecting individual human and civil rights, such as the freedom of expression, except to provide a road map over whether certain kinds of legislation are a federal or state responsibility.</p>


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<p>Any protection of individual rights in Australia has a source different from the Australian Constitution. In Australia, most protections for individual rights arise under the common law and legislation. According to <a href="https://g.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-protections" rel="nofollow noreferrer">the Australian Attorney-General</a>:</p>
<blockquote>
<p>The Australian Government is committed to protecting and promoting
traditional rights and freedoms, including freedom of speech, opinion,
religion, association and movement. These rights and freedoms are
protected by the common law principle that legislation should not
infringe fundamental rights and freedoms unless the legislation
expresses a clear intention to do so and the infringement is
reasonable.</p>
<p>The Australian common law provides particularly strong protections for
freedom of speech related to public affairs and political matters. The


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reasonable.</p>
<p>The Australian common law provides particularly strong protections for
freedom of speech related to public affairs and political matters. The
government believes these rights and freedoms underpin Australia’s
democracy and should not be taken for granted, and has taken some key
steps to ensure that these rights and freedoms are protected and
promoted.</p>
</blockquote>
<p>But, basically, Australia, like the U.K., has a tradition of parliamentary sovereignty, in which a clearly expressed intent of legislation is not subject to judicial review on a substantive basis. As noted in <a href="https://www.vgso.vic.gov.au/implied-constitutional-freedom-political-communication" rel="nofollow noreferrer">the source cited in the question</a>:</p>
<blockquote>
<p>It's not uncommon to hear people in Australia talk about their 'right
to freedom of speech'. However, many people are surprised to learn
that the Australian Constitution contains no such right.</p>
</blockquote>


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to freedom of speech'. However, many people are surprised to learn
that the Australian Constitution contains no such right.</p>
</blockquote>
<p>It goes on to explain that:</p>
<blockquote>
<p>As its name suggests, the implied freedom is not expressly contained
in the Constitution.It is an implication drawn from the constitutional
'text and structure'. It originates from the sections of the
Constitution that require that the Commonwealth Parliament be
'directly chosen' by the people, and that the people will change the
Constitution by vote.</p>
<p>The High Court regularly emphasises that the implied freedom is not a
personal right, but operates as a restriction on legislative and
executive power.This means that the Commonwealth and State governments
cannot make laws or take action that would breach the implied freedom.</p>
<p>The implied freedom is not absolute ­– it exists only to the extent
necessary to protect the system of government reflected in the


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<p>The implied freedom is not absolute ­– it exists only to the extent
necessary to protect the system of government reflected in the
constitutional text. In practical terms, then, this means that a law
can interfere with communication about government or politics without
breaching the implied freedom, if the law does so for a legitimate
aim, and is generally proportionate to that aim. . . .</p>
<p>Under the current case law, three questions must be answered when
deciding whether a law infringes the implied freedom:</p>
<p>Does the law effectively burden the freedom in its terms, operation or
its practical effect (the burden question)?</p>
<p>If so, are the purpose of the law and the means adopted to achieve
that purpose legitimate, in the sense that they are compatible with
the maintenance of the constitutionally prescribed system of
representative government (the legitimate end question)?</p>
<p>If the answer to the second question is 'yes', is the law reasonably


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the maintenance of the constitutionally prescribed system of
representative government (the legitimate end question)?</p>
<p>If the answer to the second question is 'yes', is the law reasonably
appropriate and adapted to advance that legitimate object (the
reasonably appropriate and adapted question)? This question involves a
proportionality test to determine whether the law is justified as
suitable, necessary and adequate in its balance.</p>
<p>If the first question is answered 'yes' and the second or third
question is answered 'no', the law will be invalid.</p>
</blockquote>


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suitable, necessary and adequate in its balance.</p>
<p>If the first question is answered 'yes' and the second or third
question is answered 'no', the law will be invalid.</p>
</blockquote>
<p>Essentially, this weak protection of political freedom under the implied freedom of political expression is legitimate if the state governments in question determine that fascism is inconsistent with a Western style political democracy and must be suppressed, and if the laws employed to suppress fascism are not too draconian. This is done in the context of a strong tradition of deference to political decision-making by state and federal parliaments.</p>


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<p>Put another way, so long as the law doesn't make Australia basically a less democratic political system that is depriving people of a meaningful ability to elect members of parliament at the state and federal level, it probably doesn't go too far given the justifications for the implied right. The scales are balanced at the institutional level in terms of whether democracy in Australia is impaired, rather than as an individual right of particular Nazis to express their views.</p>
<p><strong>A Human Rights Treaty Analysis</strong></p>
<p>Also, Australia, like the U.K., and many European countries, entrusts the protection of human rights primarily to international treaties which are superior to domestic legislation and are entrenched by the limitations in the treaties themselves upon leaving the treaties, as noted <a href="https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/international-human-rights-system" rel="nofollow noreferrer">here</a>:</p>


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<blockquote>
<p>Australia is a party to the seven core international human rights
treaties:</p>
<ul>
<li>the International Covenant on Civil and Political Rights (ICCPR)
<ul>
<li>the International Covenant on Economic, Social and Cultural Rights    (ICESCR)</li>
<li>the International Convention on the Elimination of All Forms of    Racial Discrimination (CERD)</li>
<li>the Convention on the Elimination of All Forms of Discrimination    against Women (CEDAW)</li>
<li>the Convention against Torture and Other Cruel, Inhuman or Degrading    Treatment or Punishment (CAT)</li>
<li>the Convention on the Rights of the Child (CRC)</li>
<li>the Convention on the Rights of Persons with Disabilities (CRPD).</li>
</ul>
</li>
</ul>
<p>It is against these treaties that human rights scrutiny processes
under the Human Rights (Parliamentary Scrutiny) Act 2011 are
undertaken. Australia also has periodic treaty body reporting
obligations under these treaties.</p>


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under the Human Rights (Parliamentary Scrutiny) Act 2011 are
undertaken. Australia also has periodic treaty body reporting
obligations under these treaties.</p>
<p>Australia is an active participant in the Universal Periodic Review
process which provides an in-depth analysis of Australia’s compliance
with our international human rights obligations.</p>
<p>Australia is also a party to:</p>
<ul>
<li>the Optional Protocol to the International Covenant on Civil and    Political Rights establishing an individual communication mechanism
<ul>
<li>the Second Optional Protocol to the International Covenant on Civil    and Political Rights, Aiming at the Abolition of the Death
Penalty</li>
<li>the Optional Protocol to the Convention on the Rights of the Child on    the Involvement of Children in Armed Conflict</li>
<li>the Optional Protocol to the Convention on the Rights of the Child on    the Sale of Children, Child Prostitution and Child
Pornography</li>


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<li>the Optional Protocol to the Convention on the Rights of the Child on    the Sale of Children, Child Prostitution and Child
Pornography</li>
<li>the Optional Protocol to the Convention on the Elimination of All    Forms of Discrimination against Women establishing an
individual    communication mechanism</li>
<li>the Optional Protocol to the Convention on the Rights of Persons with    Disabilities establishing an individual communication
mechanism  - the    Optional Protocol to the Convention against Torture
and Other Cruel,    Inhuman or Degrading Treatment or Punishment.</li>
</ul>
</li>
</ul>
</blockquote>
<p>From a U.S.-centric view, the way that Australia protects human rights is similar to how the U.S. regulates itself with regard to preventing war crimes.</p>


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</ul>
</li>
</ul>
</blockquote>
<p>From a U.S.-centric view, the way that Australia protects human rights is similar to how the U.S. regulates itself with regard to preventing war crimes.</p>
<p>In the Australian context, the core issue with respect to the legislation discussed in the question is whether it abridges an obligation of Australia under the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights" rel="nofollow noreferrer">International Covenant on Civil and Political Rights</a> (ICCPR). Primarily, Articles 19 and 20 of that treaty are implicated by this legislation. These articles state:</p>
<blockquote>
<p>Article 19</p>
<ol>
<li><p>Everyone shall have the right to hold opinions without interference.</p>
</li>
<li><p>Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and


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</li>
<li><p>Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing
or in print, in the form of art, or through any other media of his
choice.</p>
</li>
<li><p>The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be
such as are provided by law and are necessary:</p>
</li>
</ol>
<p>(a) For respect of the rights or reputations of others;</p>
<p>(b) For the protection of national security or of public order (ordre
public), or of public health or morals.</p>
<p>Article 20</p>
<ol>
<li><p>Any propaganda for war shall be prohibited by law.</p>
</li>
<li><p>Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall


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</li>
<li><p>Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall
be prohibited by law.</p>
</li>
</ol>
</blockquote>
<p>In the treaty analysis, the argument would presumably be that section 3 of Article 19 is adequate to permit the law, because Nazism inherently disrespects the rights of others and present a threat to national security, public order, and public morals, particularly considered in light of Article 20, Section 2, as Nazi symbols can be considered incitements to discrimination, hostility, and violence.</p>
<p>I'm not personally familiar with precisely how these rights are implemented under Australian law, nor am I personally familiar with the case law interpreting these Articles of the ICCPR.</p>
<p><strong>Application To Hypotheticals</strong></p>
<blockquote>
<p>Is it possible that these laws are unconstitutional, and simply
haven't been struck down by the courts yet?</p>
</blockquote>


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<p><strong>Application To Hypotheticals</strong></p>
<blockquote>
<p>Is it possible that these laws are unconstitutional, and simply
haven't been struck down by the courts yet?</p>
</blockquote>
<p>Yes. Indeed, I have no idea who would have standing to raise the issue, or by what procedural route this would be done.</p>
<p>I could imagine, for example, that an individual prosecuted for using such symbols might not have standing to context a prosecution under the laws on these grounds, while the leader of a proposed political party with a petition for recognition pending might be able to make these legal arguments.</p>
<blockquote>
<p>However, shouldn't these laws violate the implied right to political
speech of the Australian constitution?</p>
</blockquote>
<p>As discussed above, under Australia's political freedom jurisprudence, both as an implied constitutional right and under the ICCPR, it isn't an open and shut case.</p>


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</blockquote>
<p>As discussed above, under Australia's political freedom jurisprudence, both as an implied constitutional right and under the ICCPR, it isn't an open and shut case.</p>
<p>Notably, similar prohibitions in Germany have not held to violate the express protections for freedom of political speech of Germany's Basic Law.</p>
<blockquote>
<p>If someone wanted to collect the signatures needed to found the
Australian Nazi Party and run for parliament, shouldn't they have the
right to do so, and to display the symbols of the party they intend to
found as part of that effort? Shouldn't their supporters be able to
display the symbols of their support for said party?</p>
</blockquote>


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found as part of that effort? Shouldn't their supporters be able to
display the symbols of their support for said party?</p>
</blockquote>
<p>Australian courts can address that question when it arises. Presently, there isn't a ground swell of support for such a party. And, there is no legal prohibition on establishing a political party with particular political views that the neo-Nazi party might ascribe to itself, nor is there as prohibition on such a party establishing any other new logos and symbols for itself that it devises.</p>


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<p>Essentially, what a holding that the particular symbols cannot be used is saying is that these symbols are now so deeply and indelibly identified with genocide, and racial discrimination, religious discrimination, and political violence that the government may rightly declare that adopting those widely understood meanings of those symbols is outside the &quot;<a href="https://en.wikipedia.org/wiki/Overton_window" rel="nofollow noreferrer">Overton Window</a>&quot; of acceptable political thought within Australian democracy.</p>
<p>In the U.S. free speech jurisprudence, the analogous case would be U.S. laws that prohibit cross-burning in front of unwilling people's homes and businesses because such symbols have developed in the context of U.S. history and culture the character of a &quot;true threat&quot;.</p>


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<p>Australian states are basically saying that the symbols of the Nazi Germany regime amount to, in the current Australian context, a true threat to use violence against minorities in Australian society.</p>
<p>If someone wants to espouse the non-genocidal, non-discriminatory policies of the Nazi Party in Germany, without advocating political violence, they are welcome to try to do so under a different name with symbols of their own that distance themselves from that violent, threatening, and anti-democratic Nazi German legacy.</p>


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<p>U.S. law protects people's right to use Nazi symbols. But, the U.S. has an express individual protection of freedom of speech without the same qualifications as Australia's implied constitutional right and treaty rights. And, one could imagine a rational U.S. Supreme Court resolving that narrow question differently without unraveling the whole of U.S. freedom of speech jurisprudence, just as it did in the case of cross-burning laws which are an uncontroversial part of modern U.S. constitutional free speech law.</p>
<p>As another example, suppose that a Jewish Temple held the copyright and also trademark rights to those symbols in the context of political campaigns. A political party couldn't use those symbols then any more than they could use the McDonald's arches as its symbols without permission. But that isn't a major restriction on political freedom. The restriction on the use of the Nazi symbols isn't itself a restriction on particular political policies or ideas.</p>


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Answer 2: <p><a href="/questions/tagged/austria" class="post-tag" title="show questions tagged &#39;austria&#39;" aria-label="show questions tagged &#39;austria&#39;" rel="tag" aria-labelledby="tag-austria-tooltip-container">austria</a></p>
<p>Obviously I read Austria instead of Australia. Following a hint from @Rick about the advice in the help center - <a href="https://law.stackexchange.com/help/on-topic">we expect and encourage answers dealing with other jurisdictions</a> - I will undelete the answer. You are legally allowed to chuckle.</p>
<p>Nazi symbols, and the symbols of successor organizations, have been illegal in Austria since <a href="https://en.wikipedia.org/wiki/Verbotsgesetz_1947" rel="nofollow noreferrer">at least 1947</a>.</p>
<p>The relevant &quot;Verbotsgesetz&quot; has been challenged in the European Court of Justice, which refuted the challenge based on paragraph 17 of the European Convention of Humans Rights (which has equal standing to the constitution):</p>


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<blockquote>
<p>Nothing in this Convention may be interpreted as implying for any
State, group or person any right to engage in any activity or perform
any act aimed at the destruction of any of the rights and freedoms set
forth herein or at their limitation to a greater extent than is
provided for in the Convention.</p>
</blockquote>
<p>I am pretty sure that this covers other related laws, such as the &quot;Abzeichengesetz&quot; from 1960 (which is also based on international law, the  <a href="https://www.ris.bka.gv.at/Dokumente/BgblPdf/1955_152_0/1955_152_0.pdf" rel="nofollow noreferrer">Staatsvertrag von Wien</a> BGBl. 152/1955, in which Austria agrees to ban national socialist activity and propaganda in a treaty with both the allied forces and the Soviet Union).</p>


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<p>You probably could challenge the inclusion of specific symbols, if you feel they cannot be reasonably group as propaganda for Nazi organisatons or their successor organisations. Challenging the whole law will probably fail due to the reasons cited above.</p>
<p>Note that in general having right wing views in Austria and disseminating   them is public is not illegal (as you will notice when you follow the political discourse there).</p>
<p>Speculative bit concerning the original question, I suspect a similar principle is applied there - constitutional guarantees, if any, might not apply to people and organizations whose goal it is to overthrow said constitution (this is e.g. also the case in Germany, where I live).</p>


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Question Body: <p>I am someone who frequents several imageboards. As often happens, because there's complete anonymity, people often say the most insane, outrageous and vile stuff imaginable. Against my better judgement I was arguing with one such individual who said something very very bad about acts with children (on the order of 'I such and such little girl's so and so'), copying his statements to reply in bulletpoint fashion. Eventually the mods stepped in and the argument was over, so I honestly forgot about it and went on with my day.


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Later, thinking I had a url copied, I instead pasted one of his very bad statements into my taskbar and searched Google with it. The very microsecond I realized what I did (that page hadn't even loaded fully), I closed the page and deleted my history, but I've been completely sick and horrified even having this associated with me, and I know such searches usually get the intention of the law. Could I legitimately face criminal prosecution over this? I have a completely clean criminal record and am not part of any ongoing investigation of any kind.</p>


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Answer 1: <blockquote>
<p>Could I legitimately face criminal prosecution over this?</p>
</blockquote>
<p>It's not clear that you have committed a crime.  If you're asking whether you might be suspected of having committed a crime, well, you have to identify a crime which you might be suspected of having committed.  What would the elements of such a crime be?</p>
<p>You can have a look at, for example, <a href="https://www.nysenate.gov/legislation/laws/PEN/P3TMA235" rel="nofollow noreferrer">New York's obscenity laws</a>.  It's difficult to see how a prosecutor could seek an indictment on the facts given in the question even without knowing that the words were not your own and that you had pasted them inadvertently into your search box.</p>


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<p>If your worry about this is affecting you in your daily life then you should consider whether getting advice from a lawyer would be worthwhile, so you have a better understanding of the likelihood of prosecution and the likelihood of success of any defenses you might have available.  It might cost a few hundred dollars, but if you are seriously troubled by the possibility of prosecution then the cost might be justified.</p>


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Question Title: Standardizing paper size

Question Body: <p>Could someone submit a bill proposing to standardize the paper size for a country?</p>
<p>What would be the considerations to pursue this?</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>Both the government and private Members may present a bill in the House of Commons. However, the process for a private Member's bill to receive time and consideration on the Order Paper is subject to procedural hurdles, such as <a href="https://www.ourcommons.ca/procedure/our-procedure/PrivateMembersBusiness/c_g_privatemembersbusiness-e.html" rel="nofollow noreferrer">random selection</a>.</p>
<p>From there, the bill would be pursued subject to ordinary political considerations, such as its practicality, cost-benefit analysis, Parliament's understanding of the bill's constitutionality (including division of powers), public opinion, etc.</p>


Tags: bills, philippines


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Question Body: <p>News articles today (such as <a href="https://www.cbsnews.com/news/trump-indictment-federal-charges-vs-new-york-ag-how-are-they-different/" rel="nofollow noreferrer">this one</a>) have been saying that the former president Trump has <em>only</em> been indicted and arraigned <em>twice</em> (4 April 2023 at the Manhattan state court of New York, and 13 June 2023 at a federal district court in Miami, Florida) despite the <a href="https://www.forbes.com/sites/zacheverson/article/tracking-trump-investigations-and-lawsuits/?sh=67fd256272fc" rel="nofollow noreferrer"><em>dozens</em> of lawsuits</a> that have been filed against him since he was elected president.</p>


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<p><em>Wikipedia</em> says that before he was elected president Donald Trump and his businesses entities <a href="https://en.wikipedia.org/wiki/Personal_and_business_legal_affairs_of_Donald_Trump" rel="nofollow noreferrer">were involved in over <em>4,000 legal cases</em></a>.  I wonder how many of these were criminal charges against Mr. Trump <em>personally</em> (as opposed to his business entities), and how many among them resulted in arraignment?</p>


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<p>I came across this <em>Huffpost</em> blog article written before the 2016 election: <a href="https://www.huffpost.com/entry/trumps-criminal-history-s_b_11983400" rel="nofollow noreferrer"><em>Trump's Criminal History Should Be Front and Center</em></a>.  Although on quick reading it seems most of these charges were against Trump's business / non-profit entities, might there be among them criminal charges filed against him <em>personally</em>?  There is also a CREW report <a href="https://www.citizensforethics.org/reports-investigations/crew-reports/president-trumps-staggering-record-of-uncharged-crimes/" rel="nofollow noreferrer">listing 56 &quot;credible&quot; criminal offenses</a> since Trump launched his campaign in 2015.</p>
<p>My question is:</p>
<ul>


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<p>My question is:</p>
<ul>
<li>If there <em>were</em> criminal charges against him personally but zero (0) arraignment, then these 2 arraignments (<a href="https://www.forbes.com/sites/zacheverson/article/tracking-trump-investigations-and-lawsuits/?sh=67fd256272fc" rel="nofollow noreferrer">with a few in the works</a>) will be new territory for him.  It's a testament to his lawyers that he could have those previous cases settled / dismissed.  It would be nice if the answer can list them.</li>
<li>If he has been arraigned before, what were the charges and when?</li>
</ul>


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Answer 1: <p>Arraignments are only used for criminal matters. While Trump has been involved in many lawsuits, as have his businesses, only one prior case to his Presidency was criminal or quasi-criminal and might have involved an arraignment (although not necessarily):</p>
<blockquote>
<p>In 2006, the Town of Palm Beach began fining Trump $250 per day for
ordinance violations related to his erection of an 80-foot-tall (24 m)
flagpole flying a 15-by-25-foot (4.6 by 7.6 m) American flag on his
property. Trump sued the town for $25 million, saying that they
abridged his free speech, also disputing an ordinance that local
businesses be &quot;town-serving&quot;. The two parties settled as part of a
court-ordered mediation, in which Trump was required to donate
$100,000 to veterans' charities. At the same time, the town ordinance
was modified allowing Trump to enroll out-of-town members in his
Mar-a-Lago social club.</p>
</blockquote>


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$100,000 to veterans' charities. At the same time, the town ordinance
was modified allowing Trump to enroll out-of-town members in his
Mar-a-Lago social club.</p>
</blockquote>
<p>Some municipal ordinance violations are treated procedurally like traffic tickets, and some are treated more like misdemeanor criminal offenses (which do generally involve arraignments).</p>
<p>After his Presidency, one of his business entities <a href="https://en.wikipedia.org/wiki/Personal_and_business_legal_affairs_of_Donald_Trump" rel="noreferrer">was convicted</a> of rare criminal charges against an organization:</p>
<blockquote>
<p>On December 6, 2022, Trump's company The Trump Organization was
convicted on 17 criminal charges.</p>
</blockquote>
<p>Lawsuits do not give rise to arraignments. This isn't part of the civil lawsuit process.</p>


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<p>Lawsuits do not give rise to arraignments. This isn't part of the civil lawsuit process.</p>
<p>It is estimated that <a href="https://www.sentencingproject.org/app/uploads/2022/08/Americans-with-Criminal-Records-Poverty-and-Opportunity-Profile.pdf" rel="noreferrer">70 to 100 million Americans</a> have criminal records because they have been convicted of at least one criminal offense. This is about one in three or one in four American adults. The number of Americans who have even been arraigned for a crime, in a case that is not currently pending, who have never been convicted of a crime, is probably on the order of 1 million to 10 million. Probably tens of millions of Americans who have never been arraigned, however, have been arrested but never charged with any crime, in addition to those who have been arraigned and not convicted with no charges pending, those who have been arraigned only in cases that are still pending, and  those who have been convicted of crimes.</p>


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<p><strong>Lots Of Crimes That Are Committed Are Never Prosecuted</strong></p>
<blockquote>
<p>There is also a CREW report listing 56 &quot;credible&quot; criminal offenses
since Trump launched his campaign in 2015.</p>
</blockquote>
<p>These are cases in which there is there are credible allegations that Trump acted in ways that could have been the basis for committing a crime. But, CREW is not alleging that any of these circumstances (other than the 2022 Trump Organization conviction and the two felony cases upon which Trump has been arraigned in 2023) have resulted in any court action being taken to press criminal charges.</p>
<p>It is possible that Trump or one of his businesses was the subject of criminal investigations that did not result in charges being brought, but there is really no way to know that this is the case. And, there is nothing terribly dishonorable about being investigated for a crime but not ultimately charged with any criminal offense.</p>


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<p>By analogy, if you are speeding, you are committing a traffic offense. The vast majority of the time, you are not ticketed for speeding even if a law enforcement office's radar gun tells the law enforcement officer that you were going slightly over the speed limit. Eventually, after the statute of limitations for traffic offenses (which is quite short) runs, you can't even be charged with those offenses.</p>
<p>In the same way, while unlawful sexual contact or sexual assault is a crime, if charges are not brought within the statute of limitations (something we know empirically to be quite common) then it doesn't result in criminal charges even though the offender committed a crime.</p>


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<p>Likewise, most civil fraud lawsuits allege conduct that could have been prosecuted as a crime if authorities sought to do so. But, in practice, criminal prosecutors with limited resources most often chose not to bring criminal fraud prosecutions in cases where a civil fraud lawsuit could bring complete relief to the party who was harmed by it.</p>
<p><strong>Not All Illegal Conduct Is Criminal</strong></p>
<p>Many kinds of conduct that can give rise to civil lawsuits cannot generally give rise to criminal charges at all. These include breaches of contract, negligently but unintentionally causing a personal injury, disagreeing over the interpretation of the tax laws in a way that cause the government to allege that you failed to pay the full amount of the taxes that you owe, employment discrimination, and many kinds of housing discrimination.</p>
<p><strong>Big Businesses Are Usually Parties To Many Lawsuits</strong></p>


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<p><strong>Big Businesses Are Usually Parties To Many Lawsuits</strong></p>
<p>Business entities, large and small, are routinely involved in lots of civil lawsuits, sometimes as plaintiffs and sometimes as defendants, and the number of lawsuits is, more or less, usually roughly proportional to the economic scale of the enterprise.</p>
<p>For example, almost every landlord brings eviction and rent collection lawsuits from time to time, and sometimes is sued by tenants over security deposit issues and alleged defects in the maintenance of the rental property. Almost every significant property owner will sooner or later become involved in litigation over boundary discrepancies or easements or in eminent domain cases. Almost every developer will sooner or later be involved in construction defect and/or mechanic's lien litigation.</p>
<p>Almost every bank brings foreclosure lawsuits and collection lawsuits when loans are allegedly not paid as agreed or loan covenants are not met.</p>


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<p>Almost every bank brings foreclosure lawsuits and collection lawsuits when loans are allegedly not paid as agreed or loan covenants are not met.</p>
<p>Almost every business with a great many employees with eventually be involved in some sort of lawsuit with an employee.</p>
<p>A large business will typically litigate a significant tax dispute at least every few years.</p>
<p>Most of the lawsuits filed in the United States are brought by banks alleging defaults on loans, landlords alleging unpaid rent, and governments collecting unpaid taxes.</p>


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<p>Most of the lawsuits filed in the United States are brought by banks alleging defaults on loans, landlords alleging unpaid rent, and governments collecting unpaid taxes.</p>
<p>For example, <a href="https://www.courts.state.co.us/userfiles/file/Administration/Planning_and_Analysis/Annual_Statistical_Reports/2022/FY2022%20Annual%20Report.pdf" rel="noreferrer">in Colorado, in 2022</a>, there were 62,996 tax collection cases, 29,836 evictions, 1,971 simple mortgage foreclosures, 66,875 debt collection cases, and 306 personal property repossession cases, for a total of 161,984 civil lawsuits out of 199,293 civil lawsuits in the state (about 81%), the lion's share of which are brought by financial institution lenders, landlords, and government tax collectors.</p>


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<p>Whether 4,000 lawsuits over several decades is a lot or a little for a large business enterprise, or is just par for the course, really comes down to the nature of, and scope of, the businesses involved. The character of the allegations in the lawsuit, and whether the allegations are atypical of lawsuit involving large business enterprises, is really more telling than the number of lawsuits.</p>


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Question Title: Asset protect trust and final expensers

Question Body: <p>A parent dies and leaves all his/her money to his/her adult child into an asset protection trust. The adult child wants to see as much money as possible in the trust. Hence he personally pays for the final expenses. Does this create any negative consequences such as ruining the asset protection offered by the trust? Would it be considered a gift and therefore if it was over the annual exclusion create a gift tax issue?</p>


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Answer 1: <p>Payment of the final expenses of an estate does not make one a settlor of a testamentary trust, and thus, it would not impair its asset protection effect of the testamentary trust. (Incidentally, a disclaimer of (i.e. formal refusal to accept) a bequest or devise or inheritance is also not a gift for this purpose or for gift and estate tax purposes.)</p>
<p>A payment of the final expenses of a decedent is not an annual exclusion gift under the federal gift and estate tax in the United States. Only gifts of present interests in property to natural persons qualify for the annual exclusion, although, if a natural person was the creditor, I suppose it could be an annual exclusion gift from the person making the payment to the creditor.</p>


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<p>Whether or not the payment of the final expenses like funeral costs and final illness expenses of a decedent constitutes a gift at all, within the meaning of the federal gift and estate tax in the United States, is not entirely clear. There may be case law or tax authority on that point that I haven't researched. But, I've never seen that question litigated.</p>
<p>Estates of persons dying in 2023 can exclude $12.92 million from gift and estate taxation per lifetime (including any lifetime gifts not exempt from gift taxation), plus any unused gift and estate tax exclusion inherited from a predeceased spouse. So, it is rare that payment of the final expenses of a decedent would materially impact the amount of gift and estate taxes due in an estate.</p>


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Question Title: How did the “American rule” as to legal costs originate?

Question Body: <p>At some point the US diverged from its common law ancestor, the English system, and the respective divergences came to be known as the American and English rules. The American rule is that parties bear their own legal costs while the English rule is that generally, the losing party pays. When and how did this divergence come about?</p>


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Answer 1: <p>According to the <a href="https://scholarship.law.uwyo.edu/do/search/?q=Attorney%27s%20fees%20in%20public%20litigation%20&amp;start=0&amp;context=15127232&amp;facet=" rel="nofollow noreferrer">Attorney's Fees in Public Interest Litigation</a><sup>1</sup> from 1981:</p>
<blockquote>
<p>It has traditionally been the practice in federal court not to award attorney's fees to the prevailing party under the doctrine known as the American rule. This is different from the practice in English courts where the prevailing litigant has always been awarded the expense of his counsel fees. There are several possible reasons for the development of this American rule including &quot;a public mistrust of lawyers, the American belief that every man should pay his own way as well as the expenses for defending himself, and the possibility of historical accident&quot;</p>
<p>[...]</p>


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<p>[...]</p>
<p><strong>The American rule can be traced as far back as 1796, when the Supreme Court in <a href="https://supreme.justia.com/cases/federal/us/3/306/" rel="nofollow noreferrer"><em>Arcambel v. Wiseman</em></a> concluded that the American system of jurisprudence did not permit the award of attorney's fees to the successful litigant as a matter of course.</strong> Numerous later cases also followed this proposition.</p>
<p>Several reasons have been given in support of the rule.  One is that the rule gives free access to the courts without
the threat of having to pay the fees of the adversary's attorney.  Another reason commonly given is that the rule limits the possible abuse in the awarding of fees.' However, the rule can act as a deterrent by restraining those parties who cannot afford attorney's fees from bringing an action supported by good cause.</p>
</blockquote>
<p>(The article goes on to discuss off-topic exceptions etc)</p>


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</blockquote>
<p>(The article goes on to discuss off-topic exceptions etc)</p>
<p><sup>1</sup> <sub>Quiner, David Mark (1981) &quot;Attorney's Fees in Public Interest Litigation,&quot; Land &amp; Water Law Review: Vol. 16 : Iss. 2 , pp. 727 - 745.</sub></p>


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Question Title: Does this require probate?

Question Body: <p>Let's assume that Bob and Abby are a married couple. Bob's will leaves everything to Abby. Bob has a brokerage account solely in his name with no TOD on the account. Bob then dies. It is my understanding that for Abby to get the money, you have to go through probate. Am I right about that?</p>
<p>I have been told that when you are leaving everything to a spouse you can skip probate. I am thinking that is wrong. Bob should have had a TOD on his account but he did not hence in this case, probate is required.</p>


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Answer 1: <blockquote>
<p>Bob's will leaves everything to Abby. Bob has a brokerage account
solely in his name with no TOD on the account. Bob then dies. It is my
understanding that for Abby to get the money, you have to go through
probate. Am I right about that?</p>
</blockquote>
<p>Yes, this has to go through probate.</p>
<blockquote>
<p>I have been told that when you are leaving everything to a spouse you
can skip probate. I am thinking that is wrong.</p>
</blockquote>
<p>You are correct.</p>
<p>This said, in a very small dollar estate (e.g. $20,000, with the actual dollar amount varying state by state), some states allow you to transfer assets by affidavit rather than via the probate process, if the sold heir at all and will beneficiary are the same and there are no unpaid creditors with a claim against those funds.</p>


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<p>New Jersey has <a href="https://smallestates.uslegal.com/affidavits-and-summary-administration-laws/new-jersey-small-estates-law/" rel="noreferrer">two sets of small estate procedures</a> for estates under $50,000. The cutoff is sometimes $10,000, sometimes $20,000, and sometimes $50,000 depending upon the circumstances and the nature of the simplified process sought. It isn't clear to me that they apply in cases where the decedent has a will and therefore is not intestate.</p>
<blockquote>
<p>Small Estates General Summary: Small Estate laws were enacted in order
to enable heirs to obtain property of the deceased without probate, or
with shortened probate proceedings, provided certain conditions are
met. Small estates can be administered with less time and cost. If the
deceased had conveyed most property to a trust but there remains some
property, small estate laws may also be available. Small Estate
procedures may generally be used regardless of whether there was a


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property, small estate laws may also be available. Small Estate
procedures may generally be used regardless of whether there was a
Will. In general, the two forms of small estate procedures are
recognized:</p>
<ol>
<li>Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the
affidavit to the holder of property such as a bank to obtain property
of the deceased. Other states require that the affidavit be filed with
the Court. The main requirement before you may use an affidavit is
that the value of the personal and/or real property of the estate not
exceed a certain value.</li>
<li>Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary
Administration, basing the requirement of which one to use on the
value of the estate. Example: If the estate value is 10,000 or less an
affidavit is allowed but if the value is between 10,000 to 20,000 a


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value of the estate. Example: If the estate value is 10,000 or less an
affidavit is allowed but if the value is between 10,000 to 20,000 a
summary administration is allowed.</li>
</ol>
<p>New Jersey Summary: Under New Jersey statute, where as estate is
valued at less than $50,000, a surviving spouse,  partner in a civil
union, or domestic partner, may present an affidavit of a small estate
before the Superior Court. Upon the execution and filing of the
affidavit, the surviving spouse shall have all of the rights, powers
and duties of an administrator duly appointed for the estate.</p>
<p>New Jersey: New Jersey requirements are set forth in the statutes
below.</p>
<p>TITLE 3B ADMINISTRATION OF ESTATES–DECEDENTS AND OTHERS</p>
<p>3B:10-3. When spouse, partner in a civil union, or domestic partner
entitled to assets without administration.</p>
<p><strong>Where the total value of the real and personal assets of the estate of</strong>


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entitled to assets without administration.</p>
<p><strong>Where the total value of the real and personal assets of the estate of</strong>
<strong>an intestate</strong> will not exceed $50,000, the surviving spouse, partner in
a civil union, or domestic partner upon the execution of an affidavit
before the Surrogate of the county where the intestate resided at his
death, or, if then nonresident in this State, where any of the assets
are located, or before the Superior Court, shall be entitled
absolutely to all the real and personal assets without administration,
and the assets of the estate up to $10,000 shall be free from all
debts <strong>of the intestate</strong>. Upon the execution and filing of the affidavit
as provided in this section, the surviving spouse, partner in a civil
union, or domestic partner shall have all of the rights, powers and
duties of an administrator duly appointed for the estate. The
surviving spouse, partner in a civil union, or domestic partner may be


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duties of an administrator duly appointed for the estate. The
surviving spouse, partner in a civil union, or domestic partner may be
sued and required to account as if he had been appointed administrator
by the Surrogate or the Superior Court. The affidavit shall state that
the affiant is the surviving spouse, partner in a civil union, or
domestic partner of the intestate and that <strong>the value of the</strong>
<strong>intestate’s real and personal assets will not exceed $50,000, and</strong>
<strong>shall set forth the residence of the intestate at his death</strong>, and
specifically the nature, location and value of <strong>the intestate’s</strong> real
and personal assets. The affidavit shall be filed and recorded in the
office of such Surrogate or, if the proceeding is before the Superior
Court, then in the office of the clerk of that court. Where the
affiant is domiciled outside this State, the Surrogate may authorize


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Court, then in the office of the clerk of that court. Where the
affiant is domiciled outside this State, the Surrogate may authorize
in writing that the affidavit be executed in the affiant’s domicile
before any of the officers authorized by R.S.46:14-6.1 to take
acknowledgments or proofs.</p>
<p>amended 1983, c.246, s.1; 2004, c.132, s.77; 2005, c.331, s.24; 2015,
c.232, s.1.</p>
<p>3B:10-4. When heirs entitled to assets without administration</p>
<p>Where the total value of the real and personal assets of the estate of
an intestate <strong>will not exceed $20,000 and the intestate</strong> leaves no
surviving spouse, partner in a civil union, or domestic partner, and
one of his heirs shall have obtained the consent in writing of the
remaining heirs, if any, and shall have executed before the Surrogate
of the county where the intestate resided at his death, or, if then
nonresident in this State, where any of the intestate’s assets are


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of the county where the intestate resided at his death, or, if then
nonresident in this State, where any of the intestate’s assets are
located, or before the Superior Court, the affidavit herein provided
for, shall be entitled to receive the assets of the intestate of the
benefit of all the heirs and creditors without administration or
entering into a bond. Upon executing the affidavit, and upon filing it
and the consent, he shall have all the rights, powers and duties of an
administrator duly appointed for the estate and may be sued and
required to account as if he had been appointed administrator by the
Surrogate or the Superior Court.</p>
<p>The affidavit shall set forth the residence of the intestate at his
death, the names, residences and relationships of all of the heirs and
specifically the nature, location and value of the real and personal
assets and also a statement that the value of the intestate’s real and
personal assets will not exceed $20,000.</p>


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specifically the nature, location and value of the real and personal
assets and also a statement that the value of the intestate’s real and
personal assets will not exceed $20,000.</p>
<p>The consent and the affidavit shall be filed and recorded, in the
office of the Surrogate or, if the proceeding is before the Superior
Court, then in the office of the clerk of that court. Where the
affiant is domiciled outside this State, the Surrogate may authorize
in writing that the affidavit be executed in the affiant’s domicile
before any of the officers authorized by R.S.46:14-6.1 to take
acknowledgments or proofs.</p>
<p>amended 1983, c.246, s.2; 2004, c.132, s.78; 2005, c.331, s.25; 2015,
c.232, s.2.</p>
<p>The consent and the affidavit shall be filed and recorded, in the
office of the surrogate or, if the proceeding is before the Superior
Court, then in the office of the clerk of that court. Where the
affiant is domiciled outside this State, the surrogate may authorize


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Court, then in the office of the clerk of that court. Where the
affiant is domiciled outside this State, the surrogate may authorize
in writing that the affidavit be executed in the affiant’s domicile
before any of the officers authorized by R.S. 46:14-7 and R.S. 46:14-8
to take acknowledgments or proofs.</p>
</blockquote>


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Question Title: Could they subpoena Mike Pence to testify whether he knew that Trump had taken classified documents out of the White House?

Question Body: <p>In regards to the trial that will take place in the future regarding the issue of former U.S. President Donald Trump mishandling classified documents, I was just wondering if former Vice President Mike Pence could be subpoenaed to appear in court to testify whether he knew that Donald Trump had taken classified documents out of the White House.</p>
<p>Could they subpoena Mike Pence to testify whether he knew that Donald Trump had taken classified documents out of the White House?</p>


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Answer 1: <p>Yes... whether the judge will grant the subpoena is another matter and one that it is to premature to speculate on.  With what I have seen of the indictment, Pence was not named as a witness in the investigation, which will call into question why he is being asked to testify to events that were not used to indict Trump (if he saw something, that should come out in the investigation prior to trial.).  Without some show that the testimony was material to the investigations findings and the charge I doubt it would be granted... but there's nothing stopping the prosecution for requesting the subpoena.</p>


Tags: united-states, criminal-law, constitutional-law, us-federal-government, president


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Question Body: <p>My soon to be ex-husband and I bought a house together in 2017 - we are on a conventional 30-year ARM mortgage with a current rate of 3.37% until November 2027.  We are now getting divorced, and I am to be awarded the house and become the only owner. I want to &quot;assume the mortgage&quot; under the current terms (it is much less expensive than a refi). I don't need to transfer money to my ex, but he does want to be off the mortgage so that he can eventually get a home loan of his own. The closing documents on the loan state that the loan &quot;is assumable under certain conditions&quot;.  It doesn't state what those conditions are, however.  I am being told by US Bank that the loan cannot be assumed until after the first rate adjustment (Nov 2027) but they have refused to show me any document that states those conditions.</p>


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<p>I have also read up on the Garn St. Germain law from 1982; that law seems to make it clear that in the case of a divorce, the bank cannot enforce a due-on-sale clause. It seems to me that by requiring me to refinance at today's super high rates, the bank is essentially requiring me to pay off the loan, right? Isn't that in violation of the federal law?</p>
<p>I had a brief consult with a real-estate lawyer, and they indicated that I was probably right but mostly blew me off and told me it would cost tens of thousands to go up against US Bank's lawyers.  Is there a way to go about this without hiring lawyers?</p>


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Answer 1: <p>Without addressing the specific facts of the question, here are some general principles.</p>
<p>While a transfer of real estate upon divorce does not trigger a due on sale clause (which would trigger a foreclosure), both spouses have to remain on the loan unless it is refinanced.</p>
<p>Assumption of a loan generally applies to new owners of the real estate, assuming that they are creditworthy, and not to someone who is one of the original owners of the real estate. Otherwise the bank would be giving up something (one of the guarantors of the loan), while getting nothing in return.</p>
<p>It is common for spouses who are both on a loan to have a difficult time extricating one of them from responsibility for it. Often rates or lack of income or creditworthiness makes it hard for the spouse getting the home to refinance. Of course, one could also sell the home, pay the debt with the proceeds, and use the proceeds to buy a new home.</p>


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<p>Ideally, a plan to deal with this is included in a separation agreement in a divorce, but sometimes there are no good alternatives, or parties not represented by lawyers don't anticipate the problem and address it.</p>


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Question Title: Is an umbrella school a &quot;high school&quot;?

Question Body: <p>I am attempting to get my GED behind my parents back (let's not get into why I need to do that) and I am creating an account at the GED website. It is asking me whether I am &quot;currently enrolled in high school&quot; and I am not sure what that would entail. I am currently being homeschooled under an umbrella school called &quot;Florida Unschoolers&quot;. Does this count as being enrolled in high school?</p>


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Answer 1: <p>Without knowing the specifics on Florida Goverment's regulations, the term Umbrella School is used to designate school like organizations that over see multiple homeschoolers and that they are meeting state educational expectations.   Often they will hold events which will allow homeschoolers to compete in school sports as well as set curriculums (sometimes), and field trips and social events (A stereotype of Home School Students is that they are poorly socialized compared to those who attend traditional public or private schools.).</p>
<p>They should meet legal qualifications, but it's a bare minimum at best.  I would recommend calling a local school administration office for best guidance, but saying Home School (Florida Unschoolers Umbrella School) would likely cover your bases.   I'm sure you're not the first person to ask this question.</p>


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Answer 2: <blockquote>
<p>It is asking me whether I am &quot;currently enrolled in high school&quot; and I am not sure what that would entail. I am currently being homeschooled under an umbrella school called &quot;Florida Unschoolers&quot;. Does this count as being enrolled in high school?</p>
</blockquote>
<p>According to <a href="https://ged.com/policies/florida/" rel="noreferrer">ged.com</a>, these are some of the requirements for getting a GED in Florida:</p>
<blockquote>
<p>To get your Florida GED, you cannot already have a high school diploma or equivalent. You must also be unenrolled in any accredited high school. Additionally, you must be at least 18 years of age or, if younger, have a waiver from your local school board.</p>
</blockquote>
<p>These are the criteria that the site is interested in evaluating, and in particular, observe that being enrolled in an accredited high school is a <em>disqualifier</em>.</p>


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</blockquote>
<p>These are the criteria that the site is interested in evaluating, and in particular, observe that being enrolled in an accredited high school is a <em>disqualifier</em>.</p>
<p>&quot;Florida Unschoolers&quot; is a registered school in the state of Florida, which is a separate thing from accreditation.  However, according to <a href="https://www.fldoe.org/schools/school-choice/private-schools/accreditation.stml" rel="noreferrer">the Florida Department of Education</a>,</p>
<blockquote>
<p><strong>The Florida Department of Education does not accredit, regulate, approve, or license K-12 private schools. Additionally, the Florida Department of Education does not officially recognize any of the various agencies that accredit private schools.</strong></p>
</blockquote>
<p>(emphasis in the original).</p>


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</blockquote>
<p>(emphasis in the original).</p>
<p>As far as I can determine, the GED rules are set by GED, not by the state of Florida.  It is plausible that the &quot;accredited&quot; prong of their requirement is boilerplate, and that they would interpret any school registered with the Florida Department of Education to satisfy that requirement.  And it is likely that they would consider your school to be a high school if it considers <em>you</em> to be in grade 9, 10, 11, or 12.  My guess, then, is that GED would, yes, consider you to be enrolled in high school.</p>
<p>But you should not accept my guess about that.  The Florida Department of Education provides <a href="https://www.fldoe.org/academics/career-adult-edu/hse/" rel="noreferrer">contact information</a> for questions about GEDs, including telephone numbers and an e-mail address.  Use them.  That will give you authoritative answers to your questions.</p>


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Question Title: What are the actions to take when using software licensed under the Apache, Eclipse, MIT and CDDL licenses?

Question Body: <p>We are working on software that we are planning to sell to businesses.</p>

<p>We are looking at using many components from the open source community to speed up development.</p>

<p>The software we are using so far is released under one of the following licenses:</p>

<ul>
<li>Apache License v2.0</li>
<li>JSON.org license</li>
<li>Eclipse Public License v1.0</li>
<li>MIT License</li>
<li>CDDL License v1.0</li>
</ul>

<p>We have already included the license information (LICENSE.txt) files from all the open source components in the bundle.</p>

<p>We would like to be 100% compliant with the licenses mentioned above. Is there anything else we have to do to before we start selling the software?</p>


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<p>We would like to be 100% compliant with the licenses mentioned above. Is there anything else we have to do to before we start selling the software?</p>


Answer 1: <p>The MIT/JSON.org/Apache licenses are non-copyleft, so commercial use is feasible (i.e., you don't have to release source code when distributing your software). They do each have other requirements like attribution (so you need a part of your software or distribution where you maintain the attribution), and JSON.org has a weird requirement that your software "shall be used for Good, not Evil", whatever that means. I don't know if that language has been tried in court to see what it means. You should consult a lawyer for further guidance.</p>

<p>The CDDL license is per-file copyleft, which means you only have to distribute source code for the files which were CDDL licensed. Files that you write that use software that is CDDL-licensed (via import or include) can be licensed as you wish.</p>

<h1>The EPL</h1>


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<h1>The EPL</h1>

<p>The EPL is more complicated and the most copyleft license in your list. It has a weird patent clause that:</p>

<blockquote>
  <p>...grants Recipient a non-exclusive, worldwide, royalty-free patent license under Licensed Patents to make, use, sell, offer to sell, import and otherwise transfer the Contribution of such Contributor...</p>
</blockquote>

<p>I don't know what that means.</p>

<p>In terms of your software, I don't know if you can use an EPL library. The text states:</p>

<blockquote>
  <p>Contributions do not include additions to the Program which: (i) are separate modules of software distributed in conjunction with the Program under their own license agreement, and (ii) are not derivative works of the Program.</p>
</blockquote>


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<p>I don't know if software that imports/includes other software is considered "derivative", but legally it probably has to do with the ability of your software to use another module that performs similar functionality. If your software calls an API which is instantiated in multiple libraries, then it probably isn't derivative. If the API is unique enough to a specific library, then a court might rule it "derivative". For example, I have a program that uses either BSD-licensed Editline, or GPL-licensed GNU Readline. My understanding is that because the API that I use is the same for both, installing my software on a machine that uses Readline doesn't mean my software must be GPL. Please note that I could be wrong.</p>

<h2>Conclusion</h2>

<p>I would avoid EPL-licensed software, but I am biased towards permissive licenses like MIT/BSD.</p>


Tags: licensing


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Question Title: How to protect an idea when you don&#39;t own the brand or the process? (UK)

Question Body: <p>I have an idea I'd like to take to a company, but I don't know how to protect it. </p>

<p>The best analogy I can think of is the following (I fully realise this example exists; it's an analogy):</p>

<ul>
<li>I want to approach a marketing company that has access to a drinks company, (or the company directly).</li>
<li>My idea is: to take the drinks company logo and put it on a pint glass.</li>
</ul>

<p>So, </p>

<ul>
<li>I can't protect the logo (it's not mine). </li>
<li>I can't protect the glass (it's not mine). </li>
<li>I can't protect the process of putting the logo on the glass (I don't have the tech, and something similar has been done - I wouldn't be doing the processing).</li>
</ul>

<p>All I have is the idea.</p>

<p>Is it possible to protect the idea, to stop the company just using it please?</p>


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<p>All I have is the idea.</p>

<p>Is it possible to protect the idea, to stop the company just using it please?</p>


Answer 1: <blockquote>
<p>Intellectual property is something unique that you physically create. An idea alone is not intellectual property. For example, an idea for a book doesn’t count, but the words you’ve written do <br>(from the <a href="https://www.gov.uk/intellectual-property-an-overview" rel="nofollow noreferrer">UK government website</a>).</p>
</blockquote>
<p>This is a universal principle: having ideas is not protectable (are you quite sure that nobody else has had the same idea, or ever will?)</p>
<p>So unless you have put some work into producing a specific implementation, your idea can be used by anybody who thinks of it.</p>


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Answer 2: <p>I presume the goal is to get some compensation from the company for using your idea. Since you can't protect the elements of the product and IP law does not protect an idea, you can rely on basic contract law, whereby under the contract, the business is obligated to not use your idea (for some period of time) if they decide, initially, not to "buy" your idea (and what you give them, in return, is knowledge of the idea). You may need to get them to agree to this restriction first based on the promise of a great idea, before revealing the idea to them, since once you've told them the idea, they would not have any motivation to pay you or to refrain from using the idea.</p>


Answer 3: <p>In practice, you could check what happens if you have a great idea to improve Apple's products, or their sales, or whatever else. They have an "unsolicited ideas submission policy" which you can find here; </p>


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<p><a href="https://www.apple.com/legal/intellectual-property/policies/ideas.html" rel="nofollow noreferrer">https://www.apple.com/legal/intellectual-property/policies/ideas.html</a></p>

<p>Basically it says: If you have an idea, then we don't want it, don't send it to us. If you send it, it's ours, if we use it you won't get paid, we don't keep it confidential, and we don't look at it if we don't want to. </p>

<p>So the chances of making an exception for you and for Apple to sign a contract that would protect you are slim to non-existing. </p>


Tags: copyright, intellectual-property


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Question Title: What rights does a German works council have with respect to a longterm unfilled position?


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Question Body: <p>Situation, a department head left the company. The company is looking for a replacement by advertising the position and hiring a head hunter. Unfortunately this didn't work out (so far) and the position is unfilled for more than two years. During that time the former deputy department head is acting as department head. If the deputy is on holidays or otherwise unavailable there is a temporary void in responsibility.</p>
<p>The company is located in Germany and has a <a href="https://de.wikipedia.org/wiki/Betriebsrat" rel="nofollow noreferrer">Betriebsrat</a> or works council. This is an elected body from the employees tasked with representing the interests of the employees towards the company leadership. The Betriebsrat has various legal rights concerning the advertising of the position and can even refuse to agree to the hiring of a specific person if there are good reasons for that.</p>


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<p>The deputy department head has been doing the job of a department head for two years without getting the corresponding pay increase. If they were officially declared the new department head that would also entail that there is a new deputy department head which would also come with a pay raise.</p>
<p>Question: Does the Betriebsrat has any rights in this situation or does the employer already do what they have to just by advertising the position even if that is unsuccessful?</p>


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Answer 1: <p>I don't think so.</p>
<p>When it comes to wages, there may be a <em>Tarifvertrag</em> (union-negotiated wage schedule), which may apply even if the employee in question is no union member. It is enough if the employer is member of the employer's association negotiating the schedule, or in certain other cases. (Clever, really, by extending union benefits to non-members they weaken the unions ...)</p>


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<p>The <em>Tarifvertrag</em> stipulates minimum wages for certain positions, and it may define those positions implement that. An employer could not underpay a skilled machinist by calling her a 'gadget specialist' or similar non-scheduled position. But the deputy department head is likely paid above the highest bracket of the wage schedule, called <em>außertariflich</em> (<a href="https://de.wikipedia.org/wiki/Angestellter#Arten" rel="nofollow noreferrer">AT</a>, beyond the schedule). At this level, it comes down to individual negotiations between the employee and employer.</p>


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Question Title: Is it possible to create a non-profit business on F-2 visa status?

Question Body: <p>Consider a person comes to the US with an F-2 visa status and has a plan to get his/her green card in the next year, but at the moment he/she likes to start a commercial website or mobile app but for free, up to he/she could get his/her green card.</p>
<p>Is it legal for him/her and won't cause a problem for him/his green card in the future?</p>
<p>PS: By a free commercial website/mobile app I mean something like websites/applications those offer a free access for a period of time(Free trial), or offer a free access to some basic utilities(and charge users for money for premium access). Or games those are free but charge users for money for extra coins/points/etc.).</p>
<p>Can an F-2 visa holder start the business for free, then after he/she gets his/her green card/ he/she starts the post trial/premium part of the business as well?</p>


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Answer 1: <p>An F-2 visa holder is free to create and publish online content, but can’t profit off of it since F-2 holders are not allowed to work, even for themselves. That being said, an F-2 holder could provide the funds for someone else to create online content as long as the visa holder acts strictly in an investor capacity and does not actually “work” on anything.</p>
<p>An F-2 visa holder <em>would</em> be allowed to create online content without monetizing it, and then once that person has changed their residency status, they could begin monetizing their work, even if it was created while they were under an F-2.</p>


Tags: united-states, corporate-law, immigration, f2-visa, work-permit


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Question Title: Is it legal to arrange music I don&#39;t have rights to if it is never performed?

Question Body: <p>I had the idea to transcribe and arrange the music from the musical Ride the Cyclone for a wind ensemble for my school. I got in contact with the company that owns the license (Broadway Licensing) to ask about being able to do this, and they said I would have to buy rights to the entire musical to do this. However, I know that you can cover songs with a mechanical license that pays royalties to the original owner, however I'm not intending to perform it for profit (or perform it in general, that's still up in the air).</p>
<p>Am I within my rights to arrange it as a cover for non-profit?</p>
<p><strong>EDIT:</strong> I got in contact with one of the creators, and they said for this specific project (arranging a medley), it's fine so long as it's non-profit.</p>


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Answer 1: <blockquote>
<p>Am I within my rights to arrange it as a cover for non-profit?</p>
</blockquote>
<p>I'm not sure about that, but I do know that Broadway Licensing isn't the right source for your license.  They told you you'd have to license the whole show, but they seem to have forgotten to tell you that if you do that you also have to <em>peform</em> the whole show.  From their FAQ:</p>
<blockquote>
<p>Can I change or cut language in the script?</p>
<p>In order to change or remove any language, you must receive prior permission from Broadway Licensing. If you cannot perform the musical without such changes, you should not hold auditions until such permissions have been granted. Please send an email to info@broadwaylicensing.com with the details of the changes you are interested in making. We will respond as quickly as possible.</p>
</blockquote>


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</blockquote>
<p>It sounds as though whoever you spoke with didn't really know what they were talking about.  The folks over at Music Theatre International seem to have a much better handle on the situation.  <a href="https://www.mtishows.com/about-licensing" rel="noreferrer">Their website describes</a> the difference between the licensing model for a theatrical production and that for a single song:</p>
<blockquote>
<p>Grand Rights vs. Small Rights:</p>
<p>The rights that MTI is able to grant under our contracts with the authors are limited to &quot;Grand Rights.&quot; Grand Rights cover the right to present the show, in its entirety, on stage. These rights do not include performance of a single song or medleys (&quot;Small Rights&quot;), videotaping, use of a logo or merchandising. In some instances, MTI has separately negotiated representation of additional rights, but those are administered on a show-by-show basis.</p>


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<p>&quot;Small Rights&quot; is a term used to cover performances of individual songs in a concert or cabaret-type setting. There are three major agencies that control these rights in the U.S.: SESAC (Society of European Stage Authors and Composers), ASCAP (American Society of Composers, Author and Publishers) and BMI (Broadcast Music, Inc.) Depending upon the songs that are being performed, licenses may be required from one, two or all three of these organizations for a single presentation. Most schools, churches, restaurants and clubs pay an annual fee to obtain a &quot;blanket license&quot; from these licensing agencies that covers the &quot;small rights&quot; use of all music in their respective catalogues for the year. Note that these blanket licenses DO NOT permit dramatic performances of songs.  The songs can be performed only in cabaret style.  While it is sometimes difficult to draw a distinction between dramatic and non-dramatic performances, a dramatic performance usually


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of songs.  The songs can be performed only in cabaret style.  While it is sometimes difficult to draw a distinction between dramatic and non-dramatic performances, a dramatic performance usually involves using a song to tell a story or as part of a story or plot.  A blanket license permits neither the use of dialogue from the show nor sets, costumes and/or choreography that invoke the original show.</p>


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</blockquote>
<p>In general, you need permission to make an arrangement and you need permission to perform it.  Whether you're making money or not may affect the likelihood of being given permission, and it may affect the amount of the license fee, or it may not.  Copyright does not exist to prevent you from making money with other people's compositions; it exists to ensure that the composers get to make money -- or decide for themselves not to --  when you perform their music.</p>
<p>Your school may already have a blanket license with for example ASCAP that would cover a public performance of the song.  At least now you should have a better idea of where to look for it.</p>


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Question Title: Does outfitting your vehicle with aftermarket equipment place your vehicle in violation of U.S. Motor Vehicle Safety Standards?


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Question Body: <p>Automotive enthusiasts like to outfit their motor vehicles with aftermarket accessories that increase the performance and capabilities for specific purposes. This could include high performance cars, work trucks, 4x4 vehicles, ect. Many of these aftermarket parts and accessories do not meet motor vehicle safety standards and are not approved by any authority for use on highways.</p>
<p>These parts can either be manufactured and bought from various retailers. They could be custom ordered to fit. They could be designed, built, and installed by a local specialty auto shop or the owner of the vehicle.</p>
<p>These aftermarket parts could include:</p>
<ol>
<li><p>Roll cage - A protective structure, usually built from chromoly or mild steel tubing, meant to protect all occupants of the vehicle during a roll-over accident. This could directly affect crumple zones required by motor vehicle safety standards that are meant to absorb energy during a collision.</p>
</li>


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</li>
<li><p>Custom bumpers - A common upgrade to vehicles that allows mounting of a winch for recovery purposes. Commonly constructed using cold rolled mild steel plate. This also could directly affect crumple zones required by motor vehicle safety standards that are meant to absorb energy during a collision.</p>
</li>
<li><p>Steering and suspension - Common upgrade that increases stability, durability, and safety. Usually changed or modified to accommodate other upgrades, and can significantly change the characteristics of the vehicle and increase payload.</p>
</li>
<li><p>Roof-top tent - A tent usually mounted to the roof of the vehicle, or on a rack mounted above the bed of a pickup truck, made of either hard plastic or vinyl. This could directly affect the stability of the vehicle and raise the center of gravity, therefore possibly exceeding motor vehicle safety standards.</p>
</li>
</ol>


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</li>
</ol>
<p>Some states have passed laws that make it a crime to operate a motor vehicle that is &quot;in violation of state or federal motor vehicle safety standards.&quot;</p>
<p>For the purpose of federal safety standards</p>
<p>If an individual purchased a new vehicle, and outfitted it with aftermarket parts that are not certified under any motor vehicle safety standard, would their vehicle be in violation of U.S. Motor Vehicle Safety Standards?</p>
<p>Would the driver be subject to criminal charges under state statute?</p>


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Answer 1: <p>In Washington, there is no criminal sanction for installing an &quot;aftermarket&quot; product on your vehicle. If we are speaking of non-commercial vehicles, the penalties for violating the various safety regulations is a ticket.</p>


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<p>The federal Motor Vehicle Safety Standards can be consulted <a href="https://www.ecfr.gov/current/title-49/subtitle-B/chapter-V" rel="nofollow noreferrer">here</a>. The criminal penalty provisions are <a href="https://www.ecfr.gov/current/title-49/subtitle-B/chapter-V/part-578" rel="nofollow noreferrer">here</a>, as authorized by <a href="https://www.law.cornell.edu/uscode/text/49/30170" rel="nofollow noreferrer">49 USC 30170</a> – basically, lying in a report to the government will get you in trouble. You would have to track down all of the provisions in the regulations, but <a href="https://www.law.cornell.edu/uscode/text/49/32506" rel="nofollow noreferrer">here</a> is the bumper prohibition. The rule prohibits manufacture or importation of a car or a part that doesn't meet the standard. Subsection (b) addresses the &quot;then added later&quot; question, generally saying that there is little prohibition against you tweaking your car. First, if you &quot;had no reason to know, by


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Subsection (b) addresses the &quot;then added later&quot; question, generally saying that there is little prohibition against you tweaking your car. First, if you &quot;had no reason to know, by exercising reasonable care, that the vehicle or equipment does not comply with the standard&quot;, you are not subject to penalty. Usually, people have absolutely no reason to know that some part is unsafe, which is not the same as non-compliant, but you might pick up a really cheap bumper having been told that it is cheap because it totally ignores the applicable standards: then you would have reason to know. Used cars and parts are not subject to any federal scrutiny.</p>


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<p>The concept of a &quot;vehicle in violation&quot; is a legal misconception. Certain acts violate, objects do not violate. The chokepoint that controls car parts is the &quot;manufacture or sell&quot; part of the law, which prevents Auto Zone from selling you a bumper made of clay (it does not prevent you from installing such a bumper – unless your state has a specific law to that effect). The shop is in violation, not the customer.</p>


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Answer 2: <h2>Modification can make operating the car a violation of applicable law in <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></h2>
<p>To be allowed to drive a car on a german road, it needs to have a <em>Betriebserlaubnis</em>, which is most akin to a vehicle registration/allowance to operate this <em>specific</em> vehicle. To get this, the car has to comply with <a href="https://www.gesetze-im-internet.de/stvzo_2012/__19.html" rel="nofollow noreferrer">§19 StVZO</a>. Typically, an unmodified car has a type certificate of conformity (<em>Typengenehmigung</em>) according to <a href="https://www.gesetze-im-internet.de/eg-fgv_2011/__2.html" rel="nofollow noreferrer">§2 StVZO</a>, which leads to the car getting a rubberstamped certificate as long as it is managing to pass technical inspection.</p>


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<p>However, modifying the vehicle can void the Typengenehmigung. In fact, doing many changes automatically does <em>unless</em> the part added either has a special certificate that it is a certified accessory for this type of car or you make an <em>Einzelzulassungsantrag</em> - a request for individual road certification for your specialized modified car. In either case, for anything more invasive than swapping one approved part for another, you need to go through a technical inspection <em>again</em>, and you need those changes registered on the Betriebserlaubnis.</p>
<p>Certain types of additions to the vehicle are also banned in any circumstance, for example, lightbars with blue light, sirens, having invasive changes to the car, and <strong>not</strong> having those registered on the car's Betriebserlaubnis automatically can void the Betriebserlaubnis, making driving with the vehicle a crime.</p>
<p>Among the parts listed...</p>
<ul>


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<p>Among the parts listed...</p>
<ul>
<li>Installation of a Roll Cage needs to be registered.</li>
<li>Custom Bumpers require either certification that it fits the car and often registration as a custom part.</li>
<li><strong>ANY</strong> change to the steering or suspension needs type certification <em>and</em> registration.</li>
<li>Rooftop Tent needs to be registered.</li>
</ul>


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Question Title: Will there be a need for US national elections?

Question Body: <p>Suppose that the majority of the states decide to elect 1 person as their leader to replace the president.Then will there be a need for national US elections to vote for a president?What exactly will happen?Will there be national elections held even in that case?Who will be the head of the country?</p>


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Answer 1: <p>The US presidency operates strictly on four-year terms, which currently begin and end at noon on January 20th of every year that is one more than a multiple of four (for example, the current term began in 2021 and will end in 2025).  There is a national election for the presidency every four years in the last November of each presidential term.  As this fact is common knowledge, I suppose the question is</p>
<blockquote>
<p>Suppose that the majority of the states decide to elect 1 person as their leader to replace the president before the end of a four-year term.</p>
</blockquote>


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<p>It is certainly possible to remove a president before the expiration of the term of office.  The mechanism provided by the constitution is that of impeachment and conviction.  But any vacancy that may arise during a four-year term for any reason must be filled according to the constitution and any legislation that does not conflict with the constitution.  The constitution and the <a href="https://en.wikipedia.org/wiki/Presidential_Succession_Act" rel="nofollow noreferrer">presidential succession act</a> establish a &quot;line of succession&quot; from which a successor must be chosen essentially by algorithm.  If this <a href="https://en.wikipedia.org/wiki/Presidential_Succession_Act#Table_of_statutory_successors" rel="nofollow noreferrer">fairly long list of people</a> were to be exhausted without filling the office, it would be for congress to make further provisions, though its ability to do so without a president in office is questionable, because enacting legislation requires


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without filling the office, it would be for congress to make further provisions, though its ability to do so without a president in office is questionable, because enacting legislation requires interacting with the president.</p>


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<p>Thus, there is at present no provision for &quot;early elections&quot; as are common in parliamentary systems.  If &quot;the people&quot; came to the consensus that such an election were desirable, it would be possible to call one by <a href="https://en.wikipedia.org/wiki/Amending_the_United_States_Constitution" rel="nofollow noreferrer">amending the constitution</a>, which requires far more than a &quot;majority of the states&quot;; rather, it requires an amendment</p>
<ul>
<li>first to be approved by either
<ul>
<li>a vote of two thirds or more in both houses of congress, or</li>
<li>a constitutional convention called by congress in response to a request by two thirds or more of the state legislatures, and</li>
</ul>
</li>
<li>and subsequently to be approved by the legislatures of three fourths of the states.</li>
</ul>


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Question Title: What kinds of formal logic have applications in law?

Question Body: <p>There are different kinds of formal logic: propositional, first order, second order, modal, fuzzy, .... What kinds of formal logic have applications in law? Thanks.</p>


Answer 1: <blockquote>
<p>The Life of the Law Has Not Been Logic; It Has Been Experience.</p>
</blockquote>
<p>-- Oliver Wendell Holmes, Jr.</p>
<p>Basically none.</p>


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Answer 2: <blockquote>
<p>The common law is tolerant of much illogicality, especially on the surface; but no system of law can be workable if it has not got logic at the root of it.</p>
</blockquote>
<p>(Lord Devlin, Hedley Byrne &amp; Co., Ltd v Heller &amp; Partners [1964] AC 465, 516)</p>
<p>To think like a lawyer, you need to use <a href="https://www.deakin.edu.au/__data/assets/pdf_file/0005/728105/du-legalreason.pdf" rel="nofollow noreferrer">three</a> types of logical reasoning:</p>
<ul>
<li><a href="https://en.wikipedia.org/wiki/Argument_from_analogy" rel="nofollow noreferrer">reasoning by analogy</a>,</li>
<li><a href="https://en.wikipedia.org/wiki/Inductive_reasoning" rel="nofollow noreferrer">inductive reasoning</a>, and</li>
<li><a href="https://en.wikipedia.org/wiki/Deductive_reasoning" rel="nofollow noreferrer">deductive reasoning</a></li>
</ul>


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<li><a href="https://en.wikipedia.org/wiki/Deductive_reasoning" rel="nofollow noreferrer">deductive reasoning</a></li>
</ul>
<p>However, the standard required is not rigorous logical proof, it is reasonableness. That is, on the evidence provided, is it open to a reasonable person to draw the conclusions that the decision maker made.</p>


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Question Body: <p><a href="https://old.reddit.com/r/Minecraft/comments/mvt3ko/minecraft_eula_forbids_selling_modifications/" rel="nofollow noreferrer">Word</a> on the <a href="https://old.reddit.com/r/feedthebeast/comments/10egzvl/isnt_selling_mods_and_shaders_illegal/" rel="nofollow noreferrer">street</a> is that it's against the EULA to sell Minecraft mods.  I took a look at the actual <a href="https://www.minecraft.net/en-us/eula" rel="nofollow noreferrer">EULA</a>, which they use California/corporate/cutesy/condescending language to say that they don't want you making money off of Minecraft, but list a specific exclusion to that (ads on videos of Minecraft content), and then apparently have some other document that somehow says that you can accept donations but not do sales of mods, which a lot of people refer to, but I can't find a document explaining.  There seems to be several details different in what I am reading vs what people are proselytizing about the EULA, so I have


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which a lot of people refer to, but I can't find a document explaining.  There seems to be several details different in what I am reading vs what people are proselytizing about the EULA, so I have questions that are all interrelated.</p>


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<p>I came across the story of <a href="https://ko-fi.com/post/Physics-Mod-Pro-P5P2KPTM6" rel="nofollow noreferrer">Physics mod</a>, where a dev quit their job to work on the mod full time and it sounds like Microsoft pulled some strings to have their Patreon account banned.  That's why I'm scratching my head about all this after doing some preliminary research.</p>
<ol>
<li>On what legal basis can Microsoft restrict the sale of mods that they even explain that they don't own in their EULA?  This seems strange to begin with, and such a basis would have to be world-wide, which seems to make it even stranger.  World-wise legal commonalities are very few and far between, since some people are slaves, some subjects, some citizens, and some a mix of all of those.</li>
<li>Isn't their only course of remedy to ban your account?</li>
<li>If your account is banned, then the EULA doesn't apply, so you can sell mods, right?</li>


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<li>Isn't their only course of remedy to ban your account?</li>
<li>If your account is banned, then the EULA doesn't apply, so you can sell mods, right?</li>
<li>How can you own a mod, but immediately, permanently, and irrevocably, give it away to the entirety of the internet?  Logic would dedicate that whomever is telling you what to do with &quot;your&quot; mod actually owns it, in this case, Microsoft.  Which would mean that you don't own it, Microsoft does.</li>
<li>Given these points, a mod developer could have a public account that got banned, as a sort of honeypot, and then use 1 or more anonymous accounts, or borrow someone else's, if they want to play or test their code.  That doesn't happen, or doesn't happen very often.  Why not?</li>


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<li>Microsoft focuses heavily on &quot;not sharing the game&quot; when talking about mods, a distinction that I don't understand.  Especially when mods by definition modify the game.  The game binaries are available free of charge for anyone and everyone to download, and it's only after launching them that you can log in, so it seems there is 0 incentive to share a copy of the game.  Yet they focus on this to the point it's occasionally part of the launcher screen.  Why is this concept so intertwined with a completely different concept (making and distributing mods)?</li>
</ol>


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Answer 1: <h2><a href="https://en.wikipedia.org/wiki/Copyright" rel="noreferrer">Copyright</a> is the reason</h2>
<p>Microsoft owns the copyright to the Minecraft code. That gives them <em>exclusive</em> rights to make copies and <a href="https://en.wikipedia.org/wiki/Derivative_work" rel="noreferrer">derivative works</a>. A mod is a derivative work.</p>
<p>Further, copyright is near universal because of the Berne Convention, the countries in blue all respect each other’s copyright:</p>
<p><a href="https://i.stack.imgur.com/rjePD.png" rel="noreferrer"><img src="https://i.stack.imgur.com/rjePD.png" alt="User:Conscious - Own work. This file was derived from: BlankMap-World6.svg Berne Convention.png
" /></a></p>
<p>So, you can only make a derivative work if you are Microsoft, have Microsoft’s permission, or fall into one of the copyright exemptions which aren't relevant here. The EULA is the permission Microsoft gives and they set the terms on what you can and can’t do.</p>


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<p>If you make a mod without following the terms of the EULA then that is a copyright violation and gives Microsoft the ability to sue you and prevent you from distributions the mod. Copyright in an infringing derivative varies by jurisdiction but in the USA, <em>there is no copyright in the work</em> - so, yes, Microsoft do not own it (but they can prevent its distribution) but <em>neither do you</em>.</p>
<p>Copyright laws allow Microsoft to not only prevent you from distributing the infringing mod, they can prevent <em>anyone</em> from distributing it - that’s how the get people like Patreon to shut down accounts.</p>


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Question Title: When a lower court bases its outcome on an interpretation of the law, what is the standard under which that interpretation is reviewed?

Question Body: <p>When a lower court bases its outcome on a question of the law (e.g. the interpretation of a statute, or the requirements of the common-law or the constitution), what is the standard under which that interpretation is reviewed?</p>
<p>Will a lower court's position on a question of law be permitted to stand as long as it is a position &quot;open to a reasonable person&quot;?</p>


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Answer 1: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<h3>Courts must be <em>correct</em> on questions of law; it is not enough that the interpretation is <em>reasonable</em></h3>
<p>When an appellate court reviews a lower court's position on a question of law, the lower court's position is reviewed on a standard of <em>correctness</em>. See <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1972/index.do" rel="nofollow noreferrer"><em>Housen v. Nikolaisen</em>, 2002 SCC 33</a>:</p>
<blockquote>
<p>On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own.  Thus the standard of review on a question of law is that of correctness ...</p>


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<p>There are at least two underlying reasons for employing a correctness standard to matters of law. First, the principle of universality requires appellate courts to ensure that the same legal rules are applied in similar situations. ...</p>
</blockquote>
<p>It is not open to the lower court to come to a conclusion that is different from that which the appellate court declares to be the correct one on a question of law. Even if lower court's interpretation would be one &quot;open to a reasonable person,&quot; it will be overturned if it does not match that of the appellate court.</p>
<h3>Questions of law are reviewed on a lower standard (<em>reasonableness</em>) in judicial reviews of administrative decisions</h3>


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<h3>Questions of law are reviewed on a lower standard (<em>reasonableness</em>) in judicial reviews of administrative decisions</h3>
<p>The alternative standard, <em>reasonableness</em>, is applicable in the judicial review many administrative tribunals and agencies, even on questions of law. That is unless the statutory scheme invites more strict review by courts or if it is a constitutional question or a general question of law of central importance to the legal system as a whole or relate to jurisdictional boundaries between administrative bodies, in which case, the administrative decision-maker's interpretation of law <em>will</em> still be reviewed on a <em>correctness</em> standard. See <a href="https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" rel="nofollow noreferrer"><em>Canada (Minister of Citizenship and Immigration) v. Vavilov</em>, 2019 SCC 65</a>.</p>


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<p>But even in this regime of judicial review, a decision will not be upheld simply because it was <em>open to a reasonable person</em> to come to the decision. The review looks like this:</p>
<blockquote>
<p>A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks <strong>whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision</strong></p>
</blockquote>
<p>This is significantly more robust that merely inquiring whether the outcome was open to a reasonable person.</p>
<blockquote>


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</blockquote>
<p>This is significantly more robust that merely inquiring whether the outcome was open to a reasonable person.</p>
<blockquote>
<p>a court conducting a reasonableness review properly considers both the outcome of the decision and the reasoning process that led to that outcome was recently reaffirmed in <em>Delta Air Lines Inc. v. Lukács</em>, 2018 SCC 2, [2018] 1 S.C.R. 6, at para. 12. In that case, although the outcome of the decision at issue may not have been unreasonable in the circumstances, the decision was set aside because the outcome had been arrived at on the basis of an unreasonable chain of analysis.</p>
</blockquote>


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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>Decisions of lower courts are reviewed on appeal <em>de novo</em>, with no deference to lower court interpretations, except in the case of <em>habeas corpus</em> review of state court determinations of law in criminal cases, which can only be set aside if the interpretations are unreasonable.</p>
<p>This standard of review also applies to written contract interpretation, when the language of the contract is undisputed and unambiguous, and to any determination made by a lower court without resolving a dispute of facts in an evidentiary hearing.</p>


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Answer 3: <h2>It depends</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>“Standard of review” is not a <a href="https://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/Pre-2015%20Speeches/Basten/basten_2010.10.07.pdf" rel="nofollow noreferrer">term</a> that is used in Australia, instead, the governing legislation would determine if an <a href="https://law.stackexchange.com/questions/93154/when-a-lower-court-bases-its-outcome-on-an-interpretation-of-the-law-what-is-th">appeal</a> were to be strict, a rehearing, or a rehearing ‘de novo’. Similarly, whether there is a right to appeal, what can be appealed, what the court may consider, and what powers they have are defined by the statute.</p>


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<p>Note that this is the situation for appeals: merits review of administrative decisions and common law judicial review are different and are addressed later. In casual usage, the word “appeal” might be used for any of the three but formally they are different.</p>
<p>For this question, ‘de novo’ hearings are the easiest to deal with - the trial judge’s reasoning is immaterial as the appellate courts retries the case from the beginning.</p>
<p>In a strict appeal the appellate court only considers the law at the time of the original trial and the evidence that was before it. It is also limited to only those matters that the parties raise in the appeal - there might be a glaring and obvious error in the decision but if its not raised in the appeal, its not for the court to go looking for it. The standard that is applied is whatever the statute says or, if it is silent, whether the decision is correct or not on the matters in dispute in the appeal.</p>


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<p>In a rehearing, the appellate court may consider subsequent changes in the law and may allow fresh evidence on the facts. This may mean that the decision was correct at the time but is incorrect now. Again, the statute dictates the standard to be applied with the default being correctness.</p>
<p>Merits review of administrative decisions are not done by the courts but by internal or external administrative review bodies. For example, each state and territory has a civil and administrative tribunal which are known by their acronyms - NCAT for NSW, VCAT for Victoria, QCAT for Queensland etc. A merits review looks at the correctness of the decision as well as considering if the decision was the “best” in the circumstances - it may overturn a correct decision for a <em>better</em> correct decision.</p>
<blockquote>
<p>There were traditionally four grounds for applying for judicial review of a decision:</p>
<ul>


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<blockquote>
<p>There were traditionally four grounds for applying for judicial review of a decision:</p>
<ul>
<li><p>the decision was ultra vires (it was beyond the legal power or authority of the decision-maker to make the decision)</p>
</li>
<li><p>the decision was made in breach of the rules of procedural fairness (for example, if the decision-maker did not give the person concerned a fair hearing)</p>
</li>
<li><p>in the case of a court or tribunal, there was a jurisdictional error (the court or tribunal mistakenly decided that it had (or did not have) jurisdiction over a particular matter)</p>
</li>
<li><p>in the case of a court or tribunal, there was an error of law on the face of the record (there was a mistake of some kind in the record of the court’s decision, not in its reasons for decision).</p>
</li>
</ul>
</blockquote>


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</li>
</ul>
</blockquote>
<p>Again, legislation can limit the scope of these. For example, the arbitration acts severely restrict the grounds for judicial review of an arbitration, among other things, an error of law on the face of the record is <em>not</em> reviewable.</p>


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Question Title: Original author of project that a company abandoned

Question Body: <p>I'm the original author of a project that was made on company time and resources. While waiting for this project to come to life it just died without any support on marketing it and not using it at all.</p>
<p>Now I'm wondering if I can use this as my own releasing it for proprietary purposes or as an open source project. Are there legal outcomes when in the case of the company taking it back as their own proprietary product?</p>
<p>I'm no longer an employee on said company.</p>


Answer 1: <p>Using it without permission is copyright infringement and illegal. </p>

<p>Legally, you can try offering money to the company for the copyright or for a suitable license. For example offer them $1000 for a copy of the code licensed under the GPL license. If they accept, you are fine. </p>


Answer 2: <h2>Consider a company car</h2>


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Answer 2: <h2>Consider a company car</h2>

<p>If they aren’t using it; is it ok for you to take it without permission? </p>

<p>Same principle applies to IP.</p>


Tags: copyright


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Question Title: Hypothetically, in the U.S., is it legal for a parent to sell items inherited by their minor child?


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Question Body: <p>Let’s say that a minor child, who is very close to the age of majority, inherits a house in which that minor child had lived with only one of their parents, until that parent’s death.</p>
<p>Now let’s say that the surviving parent was estranged from the deceased parent and did not live in that house before the other parent’s death. Let’s also imagine that, according to public records, the surviving parent had signed a quit claim on the house, and is not on the new mortgage.</p>
<p>To make this more interesting, now let’s imagine that, since the death of the parent, the minor child has <em>not</em> lived in the house they inherited; however, the surviving parent <em>is</em> now living in that house.</p>
<p>As a final twist, let’s say that the surviving parent (who is now living in the house inherited by the minor child) is neither the guardian nor the conservator of the minor child.</p>


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<p>As a final twist, let’s say that the surviving parent (who is now living in the house inherited by the minor child) is neither the guardian nor the conservator of the minor child.</p>
<p>In a hypothetical scenario like this, would it be legal for the surviving parent to sell any of the contents of the house that the minor child inherited, without the minor child’s consent?</p>


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Answer 1: <p>Parents do not have the right to their child's property. See <a href="https://law.stackexchange.com/questions/76587/is-it-legal-for-a-parent-to-take-items-from-their-children">this question</a>.</p>
<p>The parent cannot sell the house as they don't own it. The minor does- there is no law that says they cannot own real estate.  There are limits on what minors can and can't do with it but this simply means that the legal guardian would be involved in selling it.</p>
<p>Even if the parent was the legal guardian they would be selling it on behalf of the child. Depending on the age of the child this would involve either their consent or this being in their best interests.</p>


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<p>The contents are more complicated. In theory, if they were also inherited by the child, no. In practice it would be difficult to prove ownership. The most reliable way to prevent this would be taking physical possession of any important items by removing either the item or the parent from the house.</p>


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Question Title: What proportion of parenting time makes someone a &quot;primary parent&quot;?

Question Body: <p>The terms &quot;primary parent,&quot; &quot;majority of parenting time,&quot; &quot;shared parenting time,&quot; and &quot;split parenting time&quot; are used to describe the division of parenting. What do these mean?</p>


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Answer 1: <p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<h3>Child support</h3>
<p>In Canada, under the <a href="https://laws.justice.gc.ca/eng/regulations/SOR-97-175/FullText.html" rel="noreferrer">Federal Child Support Guidelines</a> (used when computing child support after a divorce, and in most or all provinces after a separation), the terms are defined as follows:</p>
<ul>
<li><em>majority of parenting time</em> &quot;means a period of time that is more than 60% of parenting time over the course of a year&quot; (s. 2(1));</li>
<li><em>shared parenting time</em> is when &quot;each spouse exercises not less than 40% of parenting time with a child over the course of a year&quot; (s. 9)</li>


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<li><em>shared parenting time</em> is when &quot;each spouse exercises not less than 40% of parenting time with a child over the course of a year&quot; (s. 9)</li>
<li><em>split parenting time</em> describes a situation where &quot;there are two or more children, and each spouse has the majority of parenting time with one or more of those children&quot; (s. 8).</li>
</ul>
<p>Which of these regimes a couple falls into is significant because it <a href="https://www.justice.gc.ca/eng/rp-pr/fl-lf/child-enfant/guide/step6-etap6.html" rel="noreferrer">changes the approach to computing the amount owing for child support</a>.</p>
<h3>&quot;Primary parent&quot; outside of child support</h3>


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<p>Outside of the computation of child support, there is no concrete definition for what makes someone a &quot;primary parent.&quot; Parenting arrangements or orders will just describe the division of parenting responsibilities, such as who has day-to-day care, control, and supervision of the child; decisions about residence, friends, activities, education, medical treatment, etc. Typically though, when the phrase &quot;primary parent&quot; is used, it describes the person with day-to-day care, control, and supervision of the child. But this isn't a descriptor that can be applied universally to the relationship. For example, a person might have &quot;primary parenting of the children over the holiday&quot; (<em>Wilson v Wilson</em>, <a href="https://canlii.ca/t/jxjjl#par163" rel="noreferrer">2023 ONSC 3387, at para 163</a>). Some courts are careful to place the term in quotes to emphasize that it isn't a precise term (e.g. &quot;she puts great stock in being the 'primary


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rel="noreferrer">2023 ONSC 3387, at para 163</a>). Some courts are careful to place the term in quotes to emphasize that it isn't a precise term (e.g. &quot;she puts great stock in being the 'primary parent'&quot;: <em>Begum v Klippenstein</em>, <a href="https://canlii.ca/t/jxbhx#par86" rel="noreferrer">2023 ONSC 2970 at para 86</a>).</p>


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Question Body: <p>Note: Cross-posted from <a href="https://meta.superuser.com/q/15028/516482">SE SuperUser</a> to get thoughts from legal experts here.</p>
<hr />
<p>Follow up question to <a href="https://meta.superuser.com/q/12050/516482"><em>Revisit the Hackintosh policy</em></a>.</p>
<p>Use case:</p>
<ul>
<li>I create a <a href="https://superuser.com/edit-tag-wiki/9157">userscript</a> (in a [licenced] Windows or a Linux) and release it under GNU GPLv3 <a href="http://www.gnu.org/licenses/gpl-3.0.html" rel="nofollow noreferrer">http://www.gnu.org/licenses/gpl-3.0.html</a>.</li>
<li>I'd like to test the script with browsers available in macOS as well.</li>
<li>To be able to achieve this with the x86-based systems mentioned above (I do not own or have access to any Mac) I get a macOS ISO image and install macOS in a local VM.</li>
</ul>


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<li>To be able to achieve this with the x86-based systems mentioned above (I do not own or have access to any Mac) I get a macOS ISO image and install macOS in a local VM.</li>
</ul>
<p>Does this comply with fair use's &quot;<a href="https://en.wikipedia.org/wiki/Fair_use" rel="nofollow noreferrer"><em>public interest in the wider distribution and use of creative works</em>&quot;</a>?</p>
<p><S>If the answer is (more) &quot;yes&quot; are questions regarding such a use case tolerated here on SU?</s>[not of interest here on Law]</p>
<hr />
<p>If the answer is (more) &quot;yes&quot; do questions regarding such a use case comply with <a href="https://stackoverflow.com/legal/acceptable-use-policy">SE's <em>Acceptable Use Policy</em></a> (or any other TOS)?</p>


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Answer 1: <h2>Breach of contract is within the wider definition of <em>illegal</em></h2>
<p>When you install Apple OS, the installer prompts you to read and adhere to a clickwrap contract. This contract, the license agreement, only grants you a license to install and use the software if you adhere to a list of enumerated device types or cases. The enumerated cases, broadly speaking, are not allowing installation on non-Apple machines.</p>


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<p>Not following the terms of a license and creating a Hackintosh is a breach of contract. <a href="https://en.wikipedia.org/wiki/Breach_of_contract" rel="nofollow noreferrer">Breach of contract</a> is something that Apple can sue the person breaching the contract over - that makes it fall within the wider sphere of <em>illegal</em> or rather <a href="https://en.wikipedia.org/wiki/Wrongdoing#Legal_wrong" rel="nofollow noreferrer"><em>legal wrong(doing)</em></a>). But it is not <em>criminal</em>. It's a <a href="https://en.wikipedia.org/wiki/Civil_wrong" rel="nofollow noreferrer"><em>civil wrong(doing)</em></a>.</p>


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Answer 2: <p>Let me try to find a legal question here.
The SE main TOS page states that</p>
<blockquote>
<p>Stack Overflow reserves the right to refuse, suspend or terminate your
access to the public Network if it determines, <strong>in its sole discretion</strong>,
that you have in any way violated these Public Network Terms or are
otherwise ineligible to access or use the Network or Services.</p>
</blockquote>
<p>The question of whether SE will get sued over this policy is therefore &quot;No&quot;, they have complete discretion to kick you off.</p>
<p>Still, maybe there is some question as to what the word &quot;illegal&quot; means. The popular meaning of illegal is &quot;prohibited by criminal law&quot;, but the broader meaning assumed on Law SE is something like &quot;may reasonably be negatively sanctioned if brought to court&quot;, and includes crimes, torts, breaches of contract, administrative fines, judicial injunctions and so on.</p>


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<p>Presumably the real intent is to prohibit uses which encourage actions that stand a reasonable chance of being found to be illegal, were the matter to be brought to court (<em>everything</em> &quot;may or may not be legal&quot;). Without calling into question the logic of such a principle in the first place, and unless you refine the principle to narrowly mean &quot;criminally prohibited&quot;, then this means &quot;is it illegal to run Mac OS on non-apple hardware&quot;. It sort of looks like it is a violation of the EULA for the operating system, which makes it copyright infringement to do so (and illegal in virtually every nation, except Iran and Eritrea).</p>


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<p>It is entirely unclear what the prohibition against &quot;illegal use&quot; is supposed to refer to. It is not universally illegal to advocate certain (unnamed) political positions, but it is in some countries. Hate speech is legal in the US, and illegal in other countries. It may be illegal to describe how to violate a software EULA in some country, though it is not, in the US.</p>


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Question Body: <p>I was wondering if explaining a book's contents on a potentially monetized Youtube channel is similar to simply being a tutor or teacher if the book is freely available online via &quot;pressbooks&quot;. The book is under the following terms:</p>
<blockquote>
<ol>
<li><p>Attribution — You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use.</p>
</li>
<li><p>NonCommercial — You may not use the material for commercial purposes.</p>
</li>
<li><p>ShareAlike — If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.</p>
</li>
</ol>
</blockquote>


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</li>
<li><p>ShareAlike — If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.</p>
</li>
</ol>
</blockquote>
<p>I definitely plan to provide a link to the book, but it's the 'noncommercial' part I was concerned about. Also, would it be ok to also include the definitions mentioned in the book, or would I have to write it in my own words?
[1]: <a href="https://i.stack.imgur.com/McBAb.png" rel="nofollow noreferrer">https://i.stack.imgur.com/McBAb.png</a></p>


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Answer 1: <h2>That licence does not allow you to do what you want</h2>
<p>It’s a non-commercial licence and your usage is commercial (making money).</p>
<h2>You don’t need a licence to perform commentary or review of a book</h2>
<p>Providing that you use as little material as necessary from the original work, commentary and review is one of the exceptions to copyright carved out by fair dealing in most English speaking jurisdictions.</p>
<p>In the USA, the fair use exemption is not so clear as it involves a four factor balancing test. Your planned use is in favour of being fair use, your commercialisation is against.</p>


Tags: copyright, youtube, legal-concepts


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Question Title: &quot;Murder laws are governed by the states, [not the federal government].&quot; Is Vivek Ramaswamy right?


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Question Body: <p>United States presidential candidate Vivek Ramaswamy <a href="https://www.npr.org/2023/05/19/1176892623/vivek-ramaswamy-candidate-president-2024" rel="noreferrer">stated</a> he doesn't support a federal ban on abortion, a practice which he understands to be murder, because the U.S. federal government doesn't regulate murder (emphasis added):</p>
<blockquote>
<p>For years, I was an opponent of <em>Roe v. Wade</em>. I think it was constitutionally wrongly decided. I think <em>Dobbs</em> was correct to overturn it because <strong>the federal government has no business here</strong>. Murder laws are governed by <strong>the states</strong>. So if abortion is a form of murder, which is the pro-life position, and I am pro-life, then it would make no sense for that to be the one law that was still governed at the federal level.</p>
</blockquote>


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</blockquote>
<p>However, isn't it true that <a href="https://www.shouselaw.com/ca/blog/murder/is-murder-a-federal-crime-7-ways-it-can-be/" rel="noreferrer">murder is regulated by the federal government</a> as well? Is Vivek Ramaswamy correct in claiming that murder is governed solely by the states?</p>


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Answer 1: <p>It's a bit of an oversimplification.  You're correct that there is a federal law against murder, <a href="https://www.law.cornell.edu/uscode/text/18/1111" rel="noreferrer">18 USC 1111</a>.  However it applies only to a murder committed in the <a href="https://www.law.cornell.edu/uscode/text/18/7" rel="noreferrer">special maritime and territorial jurisdiction of the United States</a>.  This covers situations like crimes committed on federal lands such as national parks or federal buildings, or crimes on US-flagged ships at sea, aircraft in flight, or in space. It does not apply to &quot;ordinary&quot; crimes committed at most locations within the US.</p>
<p><a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-51" rel="noreferrer">18 USC Chapter 51</a> covers a few other situations, such as murder of a federal officer, foreign diplomat, by incarcerated or escaped federal prisoners, US nationals murdering each other while abroad, and so forth.</p>


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<p>The idea is that these restrictions keep the laws within the enumerated powers of Congress as stated in Article I Section 8 of the US Constitution.  A federal statute covering all murders throughout the US would probably be unconstitutional for this reason.</p>
<p>So while what he says is not strictly correct, it is true that in the vast majority of cases, murders are covered by state laws and not by federal laws. Even if one was to agree with Ramaswamy that medical abortions are a form of murder, even still, no federal murder law currently on the books would apply to a typical abortion, except under very unusual circumstances.</p>


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Answer 2: <p><strong>This Is Not An Accurate Statement Of U.S. Constitutional Law</strong></p>
<p>State governments have &quot;plenary&quot; (i.e. unlimited) power to enact any legislation authorized by the state's constitution which is not contrary to the U.S. Constitution or federal law.</p>
<p>Every U.S. state has statutes defining and punishing various grades of homicide.</p>
<p>The federal government may only enact legislation specifically authorized by the U.S. Constitution which is not, in principle, at least, plenary, although it is very broad.</p>
<p>In practice, while the federal government has enacted federal criminal homicide statutes, those statutes are piecemeal and generally involve some interstate, international, maritime, or federal government related nexus.</p>


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<p>For example, there are quite a few federal statutes that criminalize the murder of federal officials. The federal government has piracy statutes that criminalize conduct including murder committed on the high seas where no U.S. state has jurisdiction, parallel statutes that criminalize murders connected to air travel, and statutes that criminalize murder in places where no U.S. state or territorial government has jurisdiction like unincorporated federal territories in the Pacific Ocean. Murders of members of Indian Tribes by other members of Indian Tribes on an Indian Reservation are prosecuted in federal courts by federal prosecutors rather than in state or territorial courts. The federal government has statutes like the Racketeering and Corrupt Organizations Act (RICO) that criminalize organizations and <em>de facto</em> organizations of people who commit multiple &quot;predicate crimes&quot; one of which is murder if it implicates interstate commerce. And so on.</p>


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<p>As <a href="https://en.wikipedia.org/wiki/Murder_in_United_States_law" rel="noreferrer">Wikipedia explains</a>:</p>
<blockquote>
<p>If murder is committed within the borders of a state, that state has
jurisdiction, and in a similar way, if the crime is committed in the
District of Columbia, the D.C. Superior Court (the equivalent of a
state court in the District) retains jurisdiction, though in some
cases involving U.S. government property or personnel, the federal
courts may have exclusive jurisdiction.</p>
<p>If, however, the victim is a federal official, an ambassador, consul,
or other foreign official under the protection of the United States,
or if the crime took place on federal property or involved crossing
state borders, or in a manner that substantially affects interstate
commerce or national security, then the federal government also has
jurisdiction. If a crime is not committed within any state, then
federal jurisdiction is exclusive, for example vessels of the U.S.


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commerce or national security, then the federal government also has
jurisdiction. If a crime is not committed within any state, then
federal jurisdiction is exclusive, for example vessels of the U.S.
Navy or the U.S. Merchant Marine in international waters and U.S.
military bases worldwide. Recently, the Supreme Court, in the McGirt
decision, reaffirmed that major crimes within the reservation
boundaries of Native American tribes, for which a tribal member is
suspected, must be investigated and prosecuted by the federal, not
state, government. Federal penalties will apply if found guilty.</p>
<p>In addition, murder by a member of the United States Armed Forces of a
prisoner while under custody of the United States Armed Forces is in
violation of Article 118 of the Uniform Code of Military Justice and
can result in the perpetrator being tried by a general court-martial,
subjecting to certain types of jurisdictions within its own borders or
with foreign nations.</p>
</blockquote>


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can result in the perpetrator being tried by a general court-martial,
subjecting to certain types of jurisdictions within its own borders or
with foreign nations.</p>
</blockquote>
<p>So, yes, the federal government does have all sorts of laws prohibiting and punishing murder in a variety of specific circumstances with some federal hook. Some of those law are even generally applicable throughout the United States (e.g., the federal homicide offense of murdering a postal worker).</p>


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<p>As a matter of constitutional law, while the federal government doesn't have complete plenary power to adopt the equivalent of a state murder statute with no federal government jurisdictional hooks whatsoever (<em>see United States v. Lopez</em>,m 514 U.S. 549 (1995), which held that the federal government didn't have the power to prohibit gun possession in school zones under the authority granted to it by the Interstate Commerce Clause), it could clearly criminalize far more murders at the federal level than it does.</p>
<p>It is unquestioned, as a matter of constitutional law, that Congress can criminalize all intrastate bank robberies and all intrastate thefts of controlled substances. Congress could regulate far more murders as well, if it wanted to do so.</p>
<p><strong>This Stance Appeals To A GOP Minority That Thinks The Courts Have Allowed Congress To Exceed Its Limited Constitutional Authority To Legislate</strong></p>


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<p><strong>This Stance Appeals To A GOP Minority That Thinks The Courts Have Allowed Congress To Exceed Its Limited Constitutional Authority To Legislate</strong></p>
<p>A significant subset of conservative political activists are ideologically opposed to the breadth of federal legislative authority which the courts have permitted under the Interstate Commerce Clause and a few other less commonly used hooks (most notably power of Congress to spend federal money for the general welfare and to use that spending to bribe states to adopt substantive state policies).</p>


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<p>Mr. Ramaswamy's rhetoric is crafted to appeal to this minority within the conservative movement (the majority of both liberals and conservatives don't really care about federalism except as a tool to serve policy goals when it presents itself). But this isn't actually the law and if anyone tried to really enforce this narrow view of limited federal power across the board rather than to support selective political objectives, the conservative movement would swiftly disavow it.</p>
<p><strong>This Does Reflect A Long Standing Bipartisan Criminal Justice Federalism Consensus</strong></p>
<p>The federal government could also clearly devote more resources than it does to prosecuting homicides under existing federal homicide statutes, that it instead allows state governments to handle.</p>


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<p>But, while Mr. Ramaswamy isn't strictly correct that the federal government doesn't regulate murder as a matter of constitutional law authority, it is also true that the criminal justice enforcement related to homicides is predominantly a state level activity. This practice has been the living law in the United States for a very long time.</p>
<p>For example, <a href="https://www.statista.com/statistics/191134/reported-murder-and-nonnegligent-manslaughter-cases-in-the-us-since-1990/" rel="noreferrer">in 2021 there were 22,900 reported non-negligent murders</a> in the United States. Of those murders, 54.4% (12,478) of them were solved, predominantly through state court criminal prosecutions, and secondarily through the death of a few hundred murders a year in the course of the offense, an attempted arrest, or by suicide shortly after committing the murder.</p>


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<p>But, there were only <a href="https://www.uscourts.gov/statistics/table/d-2/statistical-tables-federal-judiciary/2022/12/31" rel="noreferrer">311 federal non-negligent homicide prosecutions</a> in that year. Thus, only about 3-4% of all homicide prosecutions are brought under federal criminal statutes, and the balance are brought under state criminal statutes.</p>
<p><em>Territorial v. Subject-Matter Federal Homicide Prosecutions</em></p>
<p>Moreover, a large share of the federal criminal homicide prosecutions (probably at least a majority of them) involve murders on Indian Reservations or in some other circumstance where the justification for federal involvement is territorial, rather than under federal laws that are generally applicable throughout the United States.</p>


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<p>It would be unreasonable to interpret the statement from Vivek Ramaswamy that the federal government &quot;doesn't regulate murder&quot; to mean that he was saying that murder should be legal in places where the federal government has exclusive jurisdiction to the exclusion of any state government (such as the on the high seas or Indian Reservations or in unincorporated federal territory).</p>
<p>Only about 1-2% of homicide prosecutions in the U.S. (outside of places where the federal government's authority over murder charges is territorial) are prosecuted in federal court, under federal laws without territorial limitations.</p>
<p>To that point, I wouldn't be surprised that Mr. Ramaswamy would favor strict regulation of abortion in circumstances where there is no state or territorial or Indian Reservation jurisdiction over the issue.</p>


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<p>So, while Mr. Ramaswamy isn't accurate as a question of constitutional law about the authority of the federal government to criminalize murder, his statement does reflect what has been a widely held bipartisan policy consensus for as long as the U.S. has existed.</p>
<p><em>Side Point: Federal Death Penalty Prosecutions Are Rare</em></p>
<p>Incidentally, the federal government has brought about 1% of death penalty homicide prosecutions. You can count on your fingers the number of federal death penalty prosecutions committed in states without a death penalty, since the death penalty was reinstated, post-<em>Furman</em> in about 1976.</p>
<blockquote>
<p>From 1976 to 8 December 2016, there were 1,533 executions. . . . The
South had the great majority of these executions, with 1,249; there
were 190 in the Midwest, 86 in the West, and only 4 in the Northeast.
No state in the Northeast has conducted an execution since
Connecticut, now abolitionist, in 2005. The state of Texas alone


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were 190 in the Midwest, 86 in the West, and only 4 in the Northeast.
No state in the Northeast has conducted an execution since
Connecticut, now abolitionist, in 2005. The state of Texas alone
conducted 571 executions, over 1/3 of the total; the states of Texas,
Virginia (now abolitionist), and Oklahoma combined make up over half
the total, with 802 executions between them.</p>
</blockquote>
<p>(<a href="https://en.wikipedia.org/wiki/Capital_punishment_in_the_United_States" rel="noreferrer">Source</a>)</p>
<p><a href="https://en.wikipedia.org/wiki/List_of_people_executed_by_the_United_States_federal_government" rel="noreferrer">16 executions</a> have been conducted by the federal government since 1963.</p>
<p>Of the 16 federal executions took place since 1976, 13 took place during the last six months of the Trump Administration. <a href="https://en.wikipedia.org/wiki/Capital_punishment_by_the_United_States_federal_government" rel="noreferrer">Specifically</a>:</p>
<blockquote>


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<blockquote>
<p>The last pre-Furman federal execution took place on March 15, 1963,
when Victor Feguer was executed for kidnapping and murder, after
President John F. Kennedy denied clemency. . .</p>
<p>From 1988 to October 2019, federal juries gave death sentences to
eight convicts in places without a state death penalty when the crime
was committed and tried. . . .</p>
<p>No federal executions occurred between 1972 and 2001. From 2001 to
2003, three people were executed by the federal government. No further
federal executions occurred from March 18, 2003, up to July 14, 2020,
when they resumed under President Donald Trump, during which 13 death
row inmates were executed in the last 6 months of his presidency.
Since January 16, 2021 no further executions have been performed. . .
. There are 43 offenders remaining on federal death row. . . .</p>
<p>The most recent person to be executed by the military is U.S. Army
Private John A. Bennett, executed on April 13, 1961, for child rape


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<p>The most recent person to be executed by the military is U.S. Army
Private John A. Bennett, executed on April 13, 1961, for child rape
and attempted murder.</p>
</blockquote>
<p>The only executions by the federal government committed in states where the death penalty was abolished in the last sixty years were Dustin Lee Honken (Iowa, executed in 2020), Corey Johnson (Virginia, executed in 2021), and Dustin John Higgs (Maryland, executed in 2021). Five other defendants were sentenced to death but died in prison or have not been executed yet, most notoriously the Boston Marathon bomber.</p>
<p>Pro-death penalty conservatives could have used broader federal homicide legislation to expand the death penalty widely into states that have abolished the death penalty, but neither Republican nor Democratic Presidential administrations have chosen to do so, and legislators have not passed budgets or new federal criminal homicide statutes to facilitate this possibility.</p>


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<p><strong>He Is Really Proposing A Novel Federalism Based Compromise On Abortion</strong></p>
<p>In this case, Ramaswamy is using this position to advance his political goal of trying to take a national abortion ban off the table of legitimate issues in a national Presidential election because he knows that politically, this proposal would do him more harm than good in a general election, while allowing him to continue to meet a GOP abortion litmus test by supporting abortion bans at the state level in states where there is the political will to pass them.</p>
<p>Equally important, of course, is the fact that this stance provides him with vaguely plausible talking points that help him to strike a somewhat principled compromised between the most extreme anti-abortion advocates in the GOP base (and most of the leading GOP Presidential candidates) on one hand, and independent voters in general elections who are strongly turned off by national abortion ban proposals, on the other.</p>


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Answer 3: <p>I think this is inevitable in a federal system: it is difficult to imagine a country not having laws that outlaw homicides, including murder. If a group of countries decide to federate, they have two choices: try to negotiate all the homicide laws into one uniform federal code, or leave homicide as a state matter. Generally there are enough other problems for them not to want to run with the first option.</p>
<p>The only other federal system that I know reasonably well is Australia, where each state has it's own laws for crimes against the person, crimes against property, driving, etc.</p>


Tags: us-federal-government, murder, abortion, federalism


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Question Title: Is it illegal to alter your boarding pass?

Question Body: <p>So the problem is my legal gender on my id is non-binary (&quot;X&quot;), but the airline (Frontier) only allows you to choose male or female. I went around in circles with their customer support and their supervisor on this for hours and got nowhere with them. As a result my boarding pass gender and my ID gender are not going to match. I'm worried that TSA either A) won't let me through or B) will demand a <s>free grope</s> patdown because my gender information won't match. Would it be illegal for me to simply pre-print my boarding pass to PDF, edit the gender to match my ID, and then print it out to bring with me?</p>


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Answer 1: <p>I recognize your difficulty, and I'm not sure about the formal legality of it (which would go to the materiality of the alteration, which if material would probably be a presentation of a false document to a TSA officer).</p>
<p>But more practically, when you present your boarding pass and ID to the TSA officer before going through security, their system checks your boarding pass against the boarding pass in the computer system. If those don't match, you are sent back to the ticketing desk.</p>
<p>My wife and I had to do this on a recent trip simply because folding up our boarding passes to put them in my wallet caused smudging that was enough to cause the TSA system to conclude that our boarding passes weren't in the system. This also triggered heightened bag searches and pat down searches for both of us going through security the second time around.</p>


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<p>In your shoes, I'd try my chances with a TSA officer accepting the ID v. boarding pass mismatch with your brief explanation instead. Due to the limitations of airline software, discrepancies between IDs and boarding passes are common enough for reasons like the inability of airline software to handle two word surnames, very short surnames, hyphens, and apostrophes.</p>


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Question Title: Legal to become president if U.S. adds new state/territories?

Question Body: <p>If the U.S. adds a new territory, are the people currently living there able to become president? Or does the territory have to become a state in order for the people to be eligible to become president?</p>


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Answer 1: <blockquote>
<p>If the U.S. adds a new territory, are the people currently living there able to become president?</p>
</blockquote>
<p>No.</p>
<blockquote>
<p>Or does the territory have to become a state in order for the people to be eligible to become president?</p>
</blockquote>
<p>Not necessarily.</p>
<h2>What does &quot;natural-born citizen&quot; mean?</h2>
<p>The meaning of the natural born citizen clause of the constitution is unclear in many respects, but virtually all scholars agree that a person who was a US citizen at birth, and who has remained a US citizen until present, is a natural-born citizen.</p>
<p>There is a small minority of scholars who insist that a US citizen at birth is only a natural-born citizen if they were born in the US (for example, Ted Cruz would not be considered a natural-born citizen). There is an even smaller minority who insist that a person must have at least one US citizen parent in order to be a natural-born citizen.</p>


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<p>But for all practical purposes, these minority viewpoints are irrelevant. The only thing that matters is whether someone was a US citizen when they were born.</p>
<h2>Citizenship of people living in US territories</h2>
<p>When a US territory is created, the people living there don't automatically become US citizens, and if Congress eventually gives them US citizenship, the <strong>canon of presumption against retroactivity</strong> applies: a statute should not be read to be retroactive unless there is evidence that it was intended to apply retroactively. That means the people who get US citizenship under the statute don't become natural-born citizens; they're considered to have been automatically naturalized when the statute went into effect. But if there's a statute saying that people born in the territory are US citizens at birth, then people born in the territory after the effective date of that statute are natural-born citizens, since they are citizens at birth.</p>


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<p>I will use Hawaii as an example. Hawaii became a territory in 1898. Citizenship was granted in 1900. Statehood was not granted until 1959.</p>
<p><a href="https://www.law.cornell.edu/uscode/text/8/1405" rel="nofollow noreferrer">8 USC §1405</a> governs the citizenship of people born in Hawaii:</p>
<blockquote>
<p>A person born in Hawaii on or after August 12, 1898, and before April 30, 1900, is declared to be a citizen of the United States as of April 30, 1900. A person born in Hawaii on or after April 30, 1900, is a citizen of the United States at birth. A person who was a citizen of the Republic of Hawaii on August 12, 1898, is declared to be a citizen of the United States as of April 30, 1900.</p>
</blockquote>


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</blockquote>
<p>So, Hawaiians didn't become US citizens when Hawaii was annexed. They were granted US citizenship 2 years later. A person born in Hawaii on or after April 30, 1900 is a natural born citizen. Applying the presumption against retroactivity, we see that a person who was born in Hawaii between August 12, 1898 and April 29, 1900, or who was a citizen of independent Hawaii when it was annexed by the United States, was not a natural born citizen and could not have become President.</p>
<p>In addition to the presumption against retroactivity, there is also another canon of construction that applies here: Congress could have used the &quot;is a citizen of the United States at birth&quot; language for the other two categories of Hawaiians too, but chose to omit it. Presumably, Congress acted purposefully in doing so, with the intent of granting citizenship at birth to only one of the three categories. (I can't remember whether this canon has a name.)</p>


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<h2>Can Congress grant natural-born citizen status retroactively?</h2>
<p>If the US were to acquire a new territory and saw fit to bestow citizenship retroactively to birth on some natives of that territory, would those people be eligible for the presidency? No one knows the answer to that question.</p>
<p>As an example of when Congress has granted citizenship retroactively, the Immigration and Nationality Technical Corrections Act of 1994 created <a href="https://www.law.cornell.edu/uscode/text/8/1401#h" rel="nofollow noreferrer">8 USC §1401(h)</a>, which granted citizenship retroactively to birth to individuals who had been born outside the US to a US citizen mother and alien father prior to May 24, 1934. This act was necessary because, prior to that date, only US citizen fathers could transmit citizenship, not US citizen mothers.</p>


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<p>A person granted citizenship under this statute would be over the age of 89 now, so we're unlikely to see one run for president. It's an open question whether someone who obtained US citizenship through this statute would be considered eligible for the presidency. One could argue that &quot;natural-born citizen&quot; implies a person who actually was a citizen when they were born and that retroactive grants of citizenship are a mere legal fiction that cannot override the meaning of the constitution.</p>


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Answer 2: <p>This issue has never been addressed, even in dicta, by any court case of which I am aware, and I've read many of the relevant case laws in articles about this issue. </p>

<p>The language of the constitution is unclear on this point and its meaning in general is subject to a lot of debate by academics.</p>

<p>There are legitimate reasons for both interpretations. </p>

<p>Some of the analysis applying to foreign born children U.S. citizens (who are "natural born citizens), arguably points to a theory of the requirement that would hurt residents of the newly acquired territory because that case law looks to the status of the person on the day that they were born.</p>


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<p>The original constitution overcame the issue for the new colonies by grandfathering in people who were in the colonies at the time that they became independent. This could be taken either as an implied precedent for newly acquired territory, or as a precedent for the fact that an exception for newly acquired territory requires express constitutional language, depending upon your approach to interpreting the text.</p>


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Answer 3: <p><strong>tl;dr</strong></p>
<p>It can be complicated, and it usually comes down to the language Congress uses in the legislation that treats the addition.</p>
<p><strong>Background</strong></p>
<p>Article II, § 1 of the U.S. Constitution lays out the eligibility requirements for a president.</p>
<blockquote>
<p>No person except a natural born citizen . . . shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.</p>
</blockquote>
<p>To see whether someone is a &quot;natural born citizen&quot; there are a couple of places one can look.</p>


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</blockquote>
<p>To see whether someone is a &quot;natural born citizen&quot; there are a couple of places one can look.</p>
<p>First, <a href="https://www.law.cornell.edu/uscode/text/8/1401" rel="nofollow noreferrer">8 U.S.C. § 1401</a> deals with nationals and citizens of the United States at birth. It details a list of circumstances in which an individual may be considered a U.S. national by birth. Setting aside most of the situations that don't appear to pertain to your question:</p>
<blockquote>
<p>The following shall be nationals and citizens of the United States at birth:</p>
<p>(a) a person born in the United States, and subject to the jurisdiction thereof;</p>
</blockquote>
<p>The definition for &quot;United States&quot; comes from <a href="https://www.law.cornell.edu/uscode/text/8/1101" rel="nofollow noreferrer">8 U.S.C. § 1101</a>, which deals with both nationality and immigration. Section 1101(a)(38) explains that:</p>
<blockquote>


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<blockquote>
<p>The term “United States”, except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.</p>
</blockquote>
<p>Congress updates it frequently—for example to reflect the political union with the Commonwealth of the Northern Mariana Islands, which took effect on November 3, 1986.</p>
<p>But 8 U.S.C. § 1101 alone probably isn't outcome determinative. It's possible that one might still be considered a natural born citizen of the United States if other legislation (<em>e.g.</em>, the covenant recognizing political union itself or a Congressional resolution) recognizes the status.</p>


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<p>For example, people still debate whether Senator John McCain is a natural born citizen under 8 U.S.C. § 1401 or by virtue of other Congressional legislation. He was born at a military installation associated with the Panama Canal Zone in 1936, which was not widely considered a U.S. territory at the time. The next year (1937), Congress passed <a href="https://www.law.cornell.edu/uscode/text/8/1403" rel="nofollow noreferrer">8 U.S.C. § 1403</a>, which retroactively awarded citizenship to those born in the zone on or after February 26, 1904. So some people argue that he became a natural born citizen retroactively under § 1403, while others argue he was a natural born citizen at the moment of his birth under § 1401.</p>


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<p>For territorial additions (like the Marianas), presidential eligibility likely comes down to they way in which the legislation that recognizes the union treats citizenship. Births after the effective date of the union likely face a lower hurdle to natural born citizenship, while those born before the effective date may be more dependent on a retroactive grant.</p>


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Question Body: <p>My situation is the following:</p>
<ol>
<li><p>I sublet my apartment to a previously homeless person (I did not know this while subletting). We filled out the sublet form, but never submitted it. He has been living in my room for two months.</p>
</li>
<li><p>He has not paid the rent for this month, and has completely stopped all communication. I am currently traveling abroad, and am unable to talk to him in person.</p>
</li>
<li><p>When I talked to my landlord, my landlord said that I am their tenant, they can change the lock codes for me, and then ask the guy to talk to me.</p>
</li>
</ol>
<p>My questions are the following:</p>
<p>a) Is this illegal? Changing the lock codes, and then asking him to vacate the house? He has clearly violated all terms of the contract by being a month late on rent.</p>
<p>b) The sublet form was never submitted. Does this protect me, if the guy decides to take me to court?</p>


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<p>b) The sublet form was never submitted. Does this protect me, if the guy decides to take me to court?</p>
<p>c) I am an international student in the US, and will be starting a job soon. If I am taken to court, and lose, will this affect my record and immigration status?</p>


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Answer 1: <p>It is generally illegal in all US states for a landlord to change the locks on a tenant. Given your description of the facts, this person (henceforth &quot;squatter&quot;) is a tenant, lack of forms and lease notwithstanding. When a person violates the terms of a lease, the landlord's recourse is to sue the person for damages and to petition for eviction (where the sheriff removes the person from the premise). Penalties for illegal lockouts tend to be very severe, however the tenant on the lease is not the one at risk on that point.</p>
<p>The squatter can't win in a court case against the former tenant, but he can still file paperwork which the tenant must respond to. If the tenant of record doesn't show up in court, summary judgment will be entered against him. The landlord can sue you for the rent owed.</p>


Tags: sublease


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Question Title: Can you aid and abet a crime against yourself?

Question Body: <p>Bob tells Bill, &quot;I want to shoot someone, but I don't have a gun.&quot; Bill gives Bob a gun. Bob then shoots Bill. (Assume that Bill survives, both are legally allowed to possess the gun, the transfer of the gun would have been legal if Bob requested it for a legal reason, and Bob doesn't shoot anyone else.) Obviously, Bob has assaulted Bill, but has Bill committed a crime?</p>


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Answer 1: <p><a href="/questions/tagged/united-kingdom" class="post-tag" title="show questions tagged &#39;united-kingdom&#39;" aria-label="show questions tagged &#39;united-kingdom&#39;" rel="tag" aria-labelledby="tag-united-kingdom-tooltip-container">united-kingdom</a></p>
<p>In the notorious <a href="https://en.wikipedia.org/wiki/Operation_Spanner#Investigation" rel="nofollow noreferrer">Spanner Case</a> in the UK in 1987, several gay men were prosecuted for aiding and abetting  consensual sadomasochistic assaults upon themselves. So the answer to your question is yes, at least in the UK.</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>Aiders and abetters are liable for the primary offence</h3>
<p><em>Criminal Code</em>, s. 21 makes <em>parties</em> to an offence liable of that offence on equal footing with the person who actually committed it:</p>
<blockquote>
<p>21 (1) Every one is a party to an offence who</p>
<p>(a) actually commits it;</p>
<p>(b) does or omits to do anything for the purpose of aiding any person to commit it; or</p>
<p>(c) abets any person in committing it.</p>
</blockquote>


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<p>(a) actually commits it;</p>
<p>(b) does or omits to do anything for the purpose of aiding any person to commit it; or</p>
<p>(c) abets any person in committing it.</p>
</blockquote>
<p>The purpose is to &quot;make the difference between aiding and abetting and personally committing an offence legally irrelevant... whether a person personally commits or only aids and abets, he is guilty of that offence... and not some separate distinct offence.&quot; <em>R. v. Thatcher</em>, [1987] 1 S.C.R. 652.</p>
<h3>The <em>actus reus</em></h3>
<p>The <em>actus reus</em> that makes one a party is to <em>do or omit something</em> that assists or encourages the principal to commit the offence. <a href="https://canlii.ca/t/29280#par14" rel="noreferrer"><em>R. v. Briscoe</em>, 2010 SCC 13</a>.</p>
<h3>The <em>mens rea</em></h3>


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<h3>The <em>mens rea</em></h3>
<p>The <em>mens rea</em> requires that the aider or abetter &quot;know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed.&quot; The aider or abetter also does not need to share the perpetrator's intention. &quot;It is sufficient that he or she, armed with <em>knowledge</em> of the perpetrator’s intention to commit the crime, acts with the intention of assisting the perpetrator in its commission.&quot; <em>Briscoe</em>.</p>
<p>&quot;Criminal liability as a party to an offence... does not require that the harm in issue be foreseeable in relation to a specific identifiable individual.&quot; <em>R. v. Natewayes</em>, 2015 SKCA 120, affirmed in 2017 SCC 5.</p>
<h3>Application</h3>
<p>Bill very likely knew of Bob's intention to assault someone using a gun, and, with that knowledge, Bill did something to assist Bob in commiting that offence. This would make Bill a party to an assault.</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>If any given law actually applies is for judges to decide, but on the face of it this sounds like a case of &quot;Beihilfe&quot; as per <a href="https://dejure.org/gesetze/StGB/27.html" rel="nofollow noreferrer">§ 27 Strafgesetzbuch</a> (German penal code):</p>
<blockquote>
<p>(1) Als Gehilfe wird bestraft, wer vorsätzlich einem anderen zu dessen
vorsätzlich begangener rechtswidriger Tat Hilfe geleistet hat.</p>
<p>(2) Die Strafe für den Gehilfen richtet sich nach der Strafdrohung für
den Täter. Sie ist nach § 49 Abs. 1 zu mildern.</p>
</blockquote>


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<p>(2) Die Strafe für den Gehilfen richtet sich nach der Strafdrohung für
den Täter. Sie ist nach § 49 Abs. 1 zu mildern.</p>
</blockquote>
<p>With (1) saying that anybody aiding a crime (more literally a purposefully committed illegal act) will be punished, and (2) saying the possible punishment depends on the punishment for the crime that has been aided.</p>
<p>(As a later addendum, the fact that Bill is the victim should not have much bearing onto the outcome, since he clearly was okay with a crime being committed; that he happened to be the victim is incidental. A German judge is also not elected and indeed completely independent, subject only to the law and his own conscience, so unlikely to respond to outside pressure. Instead this comes down to the question if Bill was aware that Bob was making a serious threat and a crime actually was planned.).</p>


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<p>Bill can also not escape this by not starting legal action against Bob since shooting somebody is &quot;gefährliche Körperverletzung&quot; (aggravated assault, I think) per <a href="https://dejure.org/gesetze/StGB/224.html" rel="nofollow noreferrer">StGb 224</a>, and this is an &quot;Offizialdelikt&quot;, i.e. a crime that will be persecuted by a state attorney even if the assaulted party does not seek legal action (and this would certainly uncover Bills part in the shooting).</p>


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<p>Following a very interesting comment by JanusBahsJacquet I tried to find out if Bill would have already aided a crime if Bob had not actually shot anyone. It seems that is very hard to answer and depends on the difference if that was a &quot;Vorbereitungshandlung&quot;, i.e. abstract preparation to commit a crime, or a &quot;Versuch&quot;, an attempt to commit a crime. <a href="https://www.bundestag.de/resource/blob/503546/12828089dd7fe3463bca80aa5d33e0d3/Strafbarkeit-von-Vorbereitungshandlungen-data.pdf" rel="nofollow noreferrer">As this source says</a></p>
<blockquote>
<p>Der Wille desselben, ein Rechtsgut zu verletzen, muss sich zusätzlich in einem bestimmten nach außen sichtbaren Verhalten manifestieren</p>
</blockquote>
<p>meaning &quot;the intent to violate the law must manifest in a distinct visible behaviour&quot; to determine if this was a Vorbereitungshandlung or an actual attempt.</p>


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</blockquote>
<p>meaning &quot;the intent to violate the law must manifest in a distinct visible behaviour&quot; to determine if this was a Vorbereitungshandlung or an actual attempt.</p>
<p>Arguably, making threats to shoot somebody should count as &quot;nach außen sichtbares Verhalten&quot;, so my layman's intuition would suggest that even if Bob does not shoot, Bill aided the attempt to commit a crime, which is already a criminal offence, so even if Bob does not actually shoot, Bill will still face legal consequences.</p>


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Question Title: California non-compete laws: where do they come from?

Question Body: <p>I once read that California non-compete laws come from the gold rush era, and yet I was not able to find any more information about the subject.  </p>

<p>It would be interesting to understand what historical circumstances led California to have these non-compete laws which many of the other US states don't have. (and why those states don't have such laws)</p>

<p>Thank you in advance for any answer whatsoever. </p>


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Answer 1: <p><strong>Overview</strong></p>
<p>California's prohibition on non-competition clauses was part of the Civil Code it adopted in 1872 which was written predominantly by David Dudley Field II, whose first major accomplishment was drafting a significant overhaul and codification of civil procedure rules for New York State a couple of decades earlier that was widely emulated and became the standard framework for civil procedure until the Federal Rules of Civil Procedure were adopted in the 1930s.</p>
<p>He was heavily influenced by European civil codes and by criticism of the common law system. He was an anti-slavery Democrat who later became a Republican and represented (unsuccessfully) the leader of the Tammany Hall's leader Boss Tweed who was the epitome of corrupt machine politics in a trial of the century class criminal case.</p>


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<p>Another reference that can be reviewed is David S. Clark, &quot;The Civil Law Influence on David Dudley Field's Code of Civil Procedure&quot;, in Mathias Reimann (ed), The Reception of Continental Ideas in the Common Law World: 1820–1920 (1993) 63–87.</p>
<p><strong>Long Answer</strong></p>
<blockquote>
<p>Only three states ban employee noncompetes: California (since 1872,
see Edwards v. Arthur Andersen LLP, <a href="https://scocal.stanford.edu/opinion/edwards-v-arthur-andersen-33130" rel="nofollow noreferrer">44 Cal. 4th 937, 94</a>5 (2008));
North Dakota (since 1865—before North Dakota was even a state, see
Werlinger v. Mut. Serv. Cas. Ins. Co., 496 N.W.2d 26 (N.D. 1993)); and
Oklahoma (since 1890—before Oklahoma was a state, see Brandon Kemp,
“Noncompetes in Oklahoma Mergers and Acquisitions,” 88 Okla. B.J. 128,
128 (2017)).</p>
</blockquote>


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Oklahoma (since 1890—before Oklahoma was a state, see Brandon Kemp,
“Noncompetes in Oklahoma Mergers and Acquisitions,” 88 Okla. B.J. 128,
128 (2017)).</p>
</blockquote>
<p>(<a href="https://faircompetitionlaw.com/2021/10/11/a-brief-history-of-noncompete-regulation/" rel="nofollow noreferrer">Source</a>)</p>
<p>The cited California case at the page cited states:</p>
<blockquote>
<p>Under the common law, as is still true in many states today,
contractual restraints on the practice of a profession, business, or
trade, were considered valid, as long as they were reasonably imposed.
(Bosley Medical Group v. Abramson (1984) 161 Cal.App.3d 284, 288.)
This was true even in California. (Wright v. Ryder (1868) 36 Cal. 342,
357 [relaxing original common law rule that all restraints on trade
were invalid in recognition of increasing population and competition
in trade].) However, <strong>in 1872 California settled public policy in favor</strong>


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were invalid in recognition of increasing population and competition
in trade].) However, <strong>in 1872 California settled public policy in favor</strong>
<strong>of open competition, and rejected the common law “rule of</strong>
<strong>reasonableness,” when the Legislature enacted the Civil Code.</strong> (Former
Civ. Code, § 1673, repealed by Stats. 1941, ch. 526, § 2, p. 1847, and
enacted as Bus. &amp; Prof. Code, § 16600, Stats. 1941, ch. 526, § 1, p.
1834; Bosley, supra, 161 Cal.App.3d at p. 288.)Footnote 3.</p>
<p>Today in California, covenants not to compete are void, subject to
several exceptions discussed briefly below.</p>
<p>Footnote 3: &quot;Prior to oral argument, we granted Andersen’s request
that we take judicial notice of various documents providing
information on the history of section 16600 and its predecessor
statutes. (Evid. Code, §§ 452, 453, 459.)&quot;</p>
</blockquote>


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that we take judicial notice of various documents providing
information on the history of section 16600 and its predecessor
statutes. (Evid. Code, §§ 452, 453, 459.)&quot;</p>
</blockquote>
<p><a href="https://en.wikipedia.org/wiki/California_Civil_Code" rel="nofollow noreferrer">Wikipedia summarizes</a> the 1872 adoption of the Civil Code in California as follows:</p>
<blockquote>
<p>The Civil Code of California is a collection of statutes for the State
of California. The code is made up of statutes which govern the
general obligations and rights of persons within the jurisdiction of
California. It was based on a civil code originally prepared by David
Dudley Field II for the state of New York (but which was never enacted
in that state). It is one of the 29 California Codes and was among the
first four enacted in 1872.</p>
<p>Though the Code is organized in a manner similar to the inherited
Colonial Spanish and Mexican Civil Law civil codes, many of its


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first four enacted in 1872.</p>
<p>Though the Code is organized in a manner similar to the inherited
Colonial Spanish and Mexican Civil Law civil codes, many of its
provisions are codifications of well-established American common law
principles. For example, it contains a definition of consideration, a
principle in the common law of contracts which has no direct
equivalent in civil law systems. Similarly, it codifies the mailbox
rule that communication of acceptance is effective when dropped in the
mail, which is a feature unique to the common law.</p>
<p>First adopted in 1872 and signed into law by then Governor Newton
Booth, the Civil Code is divided – similarly to its civil law
analogues – into four divisions: &quot;the first relating to persons&quot;; &quot;the
second to property&quot;; &quot;the third to obligations&quot;; &quot;the fourth contains
general provisions relating to the three preceding divisions.&quot;


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second to property&quot;; &quot;the third to obligations&quot;; &quot;the fourth contains
general provisions relating to the three preceding divisions.&quot;
Division One contains laws which govern personal rights while Division
Two contains laws which govern property rights. Division Three
codifies the substantive contract law of the State of California as
well as various regulations relating to agency, mortgages, unsecured
loans, extensions of credit, and other areas of California law.
Division Four defines remedies available in lawsuits, what constitutes
a nuisance, various maxims of jurisprudence, and other miscellaneous
provisions which relate &quot;to the three preceding divisions.&quot;</p>
<p>Although revolutionary for its time, the California Civil Code was
actually the third successfully enacted codification of the substance
of the common law. The first was the Code of Georgia of 1861 (largely
based on the work of Thomas Reade Rootes Cobb independent of Field),


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of the common law. The first was the Code of Georgia of 1861 (largely
based on the work of Thomas Reade Rootes Cobb independent of Field),
which is the ancestor of today's Official Code of Georgia Annotated.
Then Dakota Territory beat California to the punch by becoming the
first jurisdiction to enact Field's civil code in 1866.</p>
<p>David Dudley Field II's audacity in trying to codify all of the
general principles of the common law (including the law of property,
domestic relations, contracts, and torts) into general statutory law
in the form of a civil code was extremely controversial in the
American legal community, both in his time and ever since. Most U.S.
states (as well as most other common law jurisdictions) declined to
pursue such an aggressive codification. The Restatements of the Law
were developed in the 20th century as a compromise between those who
felt the common law was a disorganized mess and those who valued the


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were developed in the 20th century as a compromise between those who
felt the common law was a disorganized mess and those who valued the
flexibility and richness of the common law. Only California, North
Dakota, South Dakota, and Montana enacted virtually all of Field's
civil code, while Idaho partially enacted the contract sections but
omitted the tort sections. Later, Guam borrowed much of the California
Civil Code for its own legal system.</p>
<p>Justice Stephen Johnson Field (who was David Field's brother and was
largely responsible for introducing his work to California), praised
the California Codes (including the Civil Code) as &quot;perfect in their
analysis, admirable in their arrangement, and furnishing a complete
code of laws,&quot; while English jurist Sir Frederick Pollock attacked the
Civil Code as &quot;about the worst piece of codification ever produced&quot;
and called it &quot;the New York abortion&quot; (since it was never enacted in
that state).</p>
</blockquote>


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Civil Code as &quot;about the worst piece of codification ever produced&quot;
and called it &quot;the New York abortion&quot; (since it was never enacted in
that state).</p>
</blockquote>
<p>What was David Dudley Field II's agenda? According to <a href="https://en.wikipedia.org/wiki/David_Dudley_Field_II" rel="nofollow noreferrer">this Wikipedia article</a>:</p>
<blockquote>
<p>After having practiced law for several years, Field became convinced
that the common law in America, and particularly in New York state,
needed radical changes to unify and simplify its procedure. 1836 was
particularly devastating for Field: his first wife, youngest child,
and one of his brothers all died in the same year. To cope with his
grief, he paused his law practice, traveled to Europe for over a year
and focused on investigating the courts, procedure, and codes of
England, France and other countries. He then returned to the United
States and labored to bring about a codification of its common law


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and focused on investigating the courts, procedure, and codes of
England, France and other countries. He then returned to the United
States and labored to bring about a codification of its common law
procedure. Upon returning, he also established his own law firm, in
which he was joined by his brothers Stephen and Jonathan.</p>
<p>Much of Field's ideas on codification and the civil procedure rules
were based on the 1825 Louisiana Code of Procedure. The Louisiana code
was drafted by jurists including Edward Livingston, Louis Lislet
(1762–1832), and Pierre Derbigny. In turn, the Louisiana code was
inspired by French (including the French Code of Civil Procedure of
1806), Spanish, and Roman law, the common law tradition, and
Livingston's Louisiana Practice Act of 1805. European civil law thus
influenced American civil procedure, partially through the
intermediary of Louisiana.</p>
<p>Livingston helped to prepare criminal and civil codes for Louisiana,


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influenced American civil procedure, partially through the
intermediary of Louisiana.</p>
<p>Livingston helped to prepare criminal and civil codes for Louisiana,
and <strong>Field's personal papers at Duke University Libraries reveal that
he had read Livingston's 1825 report on the Louisiana Civil Code.
Field was also influenced by criticism of the common law by his law
partner Henry Sedgwick, as well as lawyer William Sampson.</strong></p>
<p>Field devoted more than 40 years to this codification project. He
began by outlining his proposed reforms in pamphlets, professional
journal articles, and legislative testimony, but met with a
discouraging lack of interest. In 1846, Field's ideas gained wider
notice with publication of a pamphlet, &quot;The Reorganization of the
Judiciary&quot;, which influenced that year's New York State Constitutional
Convention to report in favor of a codification of the laws. In 1847
he finally had a chance to put his ideas into official form when he


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Convention to report in favor of a codification of the laws. In 1847
he finally had a chance to put his ideas into official form when he
was appointed head of a state commission to revise court procedure and
practice. . . .</p>
<p><strong>In 1857, Field became chair of another state commission, this time for the systematic codification of all of New York state law except
for those portions already reported upon by the Commissioner of
Practice and Pleadings. In this work he personally prepared almost the
whole of the political and civil codes.</strong> . . .</p>
<p>The codification, which was completed in February 1865, was adopted
only in small part by the state of New York, but it served as a model
upon which many statutory codes throughout the United States were
constructed. For example, although Field's civil code was repeatedly
rejected by his home state of New York, it was later adopted in large
part by California, Idaho, Montana, North Dakota, and South Dakota, as


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rejected by his home state of New York, it was later adopted in large
part by California, Idaho, Montana, North Dakota, and South Dakota, as
well as the territory of Guam many years later. (Notably, Idaho
largely enacted the contract sections of Field's civil code but
declined to enact the tort sections) . . . Thanks to Field's brother,
Stephen (who served in the California State Assembly and as
California's fifth Chief Justice before being appointed to the U.S.
Supreme Court), California bought into Field's codification project
more than any other state. California first enacted a Practice Act in
1851 influenced by the Field Code, then in 1872 enacted Field's civil
procedure, criminal procedure, civil, penal, and political codes as
the first four California Codes (California merged Field's penal and
criminal procedure codes into a single code). . . .</p>
<p>Field was originally an anti-slavery Democrat, and he supported Martin


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the first four California Codes (California merged Field's penal and
criminal procedure codes into a single code). . . .</p>
<p>Field was originally an anti-slavery Democrat, and he supported Martin
Van Buren in the Free Soil campaign of 1848. He gave his support to
the Republican Party in 1856 and to the Lincoln Administration
throughout the American Civil War.</p>
<p>Field was part of the team of defense counsel that William M. Tweed
[a.k.a. &quot;Boss Tweed&quot;] assembled to defend himself during the first
criminal prosecution of Tweed in 1873. Other members of the defense
team included John Graham and Elihu Root. This first trial ended when
the jury could not agree on a verdict. In a second trial in November
1873, Tweed received a sentence of twelve years in prison and a
$12,750 fine from judge Noah Davis.</p>
</blockquote>


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Question Title: Where would I find information about Sales Tax in New Jersey about tutoring?

Question Body: <p>Is there a document or New Jersey official page where I could find information about sales tax pertaining to conducting tutoring services in New Jersey? I am using a Stripe Payment system and it doesn't take out Sales Tax and it concerns me because I can't seem to find anything or simply don't know where to search to find such information.</p>


Answer 1: <p><a href="https://www.state.nj.us/treasury/taxation/pdf/pubs/sales/su4.pdf" rel="nofollow noreferrer">This document</a> explains what is taxable vs. exempt, and also explains how to get more definitive answers (email, call, office visit).</p>


Tags: tax-law


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Question Body: <p>During the Mueller investigation, it came out that the Justice Department has a policy against indicting a sitting President, so nothing he found would result in bringing charges against Trump. However, Trump is now out of office, and this week they indicted him for offenses related to the classified documents that were found at Mar-A-Lago after he left office.</p>
<p>I can easily imagine lots of delays in taking this to trial. Suppose he wins the election next year, and the trial doesn't get started until 2025. As I understand it, the reasons for not indicting POTUS are due to the way a trial would interfere with their ability to do their job (or vice versa: they can't participate in their defense adequately if they're busy running the country). Wouldn't these reasons also apply if the indictment were prior to their taking office?</p>
<p>Would the trial have to be delayed until after they leave office again?</p>


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Answer 1: <p>That remains to be determined. <a href="https://deliverypdf.ssrn.com/delivery.php?ID=710087064097094101074123011070083122015017095012001064108080020002087015024121092093101099062003019016045099094112096102000024007087059020059075075079030008115068031021076024029086119076022075108118115072090066023099101003091081000001022070030126000&amp;EXT=pdf&amp;INDEX=TRUE" rel="noreferrer">This article</a> (100 Tex. L. Rev. 56 (2021)) discusses the possibility. To start, the Constitution does not directly say that a sitting president cannot be prosecuted. The lack of an express presidential immunity and the fact that an attempt by Madison to create such an immunity is an indication of &quot;original intent&quot;. The view that an incumbent president cannot be indicted, prosecuted, convicted or punished is a policy stance set forth by the Dept. of justice, but is not constitutional law. Alito in <a href="https://www.supremecourt.gov/opinions/19pdf/19-635_o7jq.pdf"


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prosecuted, convicted or punished is a policy stance set forth by the Dept. of justice, but is not constitutional law. Alito in <a href="https://www.supremecourt.gov/opinions/19pdf/19-635_o7jq.pdf" rel="noreferrer"><em>Trump v. Vance</em></a> points to some apparently negative consequences of allowing indictment of a sitting president, but this was in a dissenting opinion. Practical considerations of policy might argue for not prosecuting a sitting president, but the Constitution itself does not expressly forbid it.</p>


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<p>As we know from numerous SCOTUS rulings, the court is also capable of finding implicit support for a rule in the Constitution. For example theimpeachment provisions do not demand or even hint that impeachment must precede trial and punishment. An argument that prosecution would &quot;incapacitate&quot; the president is met with the fact that there is a provision for replacing an incapacitated POTUS with VPOTUS as acting president. The idea that a trial interferes with a person's ability to do their job (or that they can't adequately participate in their defense if they are doing their job) has not actually prevented ordinary people with jobs from being prosecuted for their crimes.</p>


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Question Title: Does owning a house before the marriage exempt it from divorce asset division?

Question Body: <p>If someone owns a house before marriage, <strong>would that house be exempt from asset division in divorce?</strong></p>
<p>For simplicity, assume that otherwise, asset picture is fairly simple and even (2 working spouses with similar income, no children, a shared savings/checking account, similarly sized retirements accounts, no other properties or investments).</p>
<p><strong>Would the answer depend on any factors other than whether the state is Equitable Distribution vs community property?</strong></p>
<p>Jurisdiction: USA, but for example let's use California and New York for two types, if that's needed to narrow things down.</p>
<p>Obviously, assume that there's no negotiated settlement between spouses, and divorce goes to family court judge.</p>


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Answer 1: <p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p><strong>Overview</strong></p>
<blockquote>
<p>If someone owns a house before marriage, would that house be exempt
from asset division in divorce?</p>
<p>For simplicity, assume that otherwise, asset picture is fairly simple
and even (2 working spouses with similar income, no children, a shared
savings/checking account, similarly sized retirements accounts, no
other properties or investments).</p>
</blockquote>
<p>This seemingly simple question doesn't have a simple answer.</p>
<p>This is in part because state law on the subject varies so much.</p>
<blockquote>
<p>Would the answer depend on any factors other than whether the state is
Equitable Distribution vs community property?</p>
</blockquote>


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<blockquote>
<p>Would the answer depend on any factors other than whether the state is
Equitable Distribution vs community property?</p>
</blockquote>
<p>Yes. The other reason that this is a difficult question to answer is that there are many other potentially relevant factors. This answer will provide some examples of some of the relevant facts that were not provided in the question.</p>
<p><strong>State Law Varies Greatly</strong></p>
<p>It is necessary to look to particular states, such as the New York and California, as suggested in the question, regarding this matter, as there is no uniformity or even guidance in federal law (there is even a common law exception to federal court jurisdiction that actually specifically prohibits federal courts from handling divorces and other domestic relations matters).</p>


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<p>There are two extreme starting points in terms of how this question is handled under state law, but many states are hybrid systems that borrow from each of these systems. Also, there are very practically important differences in detail with respect to how final outcomes are determined, even in states that have the same basic systems.</p>
<p>Once critical details are considered, there are probably at least half a dozen basic sets of rules among the fifty U.S. states concerning the question of how a house acquired prior to marrying by one spouse before marriage is treated in a property division during a divorce, and each of those basic sets of rules has some state specific variations.</p>
<p>This also sets aside the ubiquitous possibility in every U.S. state that these rules have been modified by a marital agreement between the spouses (such as a prenuptial agreement).</p>


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<p>This also sets aside the ubiquitous possibility in every U.S. state that these rules have been modified by a marital agreement between the spouses (such as a prenuptial agreement).</p>
<p>There are also significant differences between states, beyond the scope of this question, regarding the inheritance rights of a spouse in a house acquired by the other spouse before the marriage began in that spouse's sole name, at death.</p>
<p><strong>Equitable Division</strong></p>


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<p><strong>Equitable Division</strong></p>
<p>One of the two extremes in U.S. law is the pure traditional equitable division rule, in which all property of each spouse (regardless of whose name it is titled in) may be distributed in a manner that the judge finds to be equitable, rather than equal, and the concepts of separate and marital or community property does not exist. In the traditional equitable division regime, and in some states, but not others, a divorce court may consider marital fault in some (but not all) divorces, in deciding what is equitable in divorces commenced on fault based grounds. Each of these states has both fault based and no-fault divorces, a marital fault in not considered in property divisions in no-fault divorces in these states. New York State, for example, has a mixed fault and no-fault based divorce system.</p>


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<p>In equitable division states, often a business or a pension will be allocated entirely to a spouse who is active in the business or occupation associated with that asset, and a house will be allocated to a spouse who is not involved with the business or the occupation that gave rise to the pension.</p>
<p><strong>Community Property</strong></p>
<p>Another of the extremes in U.S. law is the community property regime, in which property acquired before the marriage and by a gift or inheritance are separate property not subject to division in a divorce, and everything acquired during the marriage is owned 50-59 by the spouses. In a community property state, property acquired by either spouse during the marriage automatically becomes property that is owned 50-50 by the spouses immediate and often some kinds of property formally titled in only one spouse's name can't be transferred without the consent of both spouses.</p>


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<p>For example, in California, which is a community property state, a house purchased in the name of one spouse before the couple marries is initially, at least, on the day of the wedding, entirely the separate property of the spouse who owns it. But, considerations discussed below regarding appreciation and the source of payments to related to the house will sometimes muddy the waters of this analysis.</p>
<p><strong>New York State: A Hybrid System</strong></p>
<p>New York State is strictly speaking an equitable distribution state and a spouse does not have a present ownership interest in property titled in their spouse's name which is acquired during the marriage. But, New York State does make a distinction between separate property and marital property at the time of a divorce, so it is really a hybrid of a traditional equitable division regime and a community property regime, unlike some other states that are more pure examples of the traditional equitable division system.</p>


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<blockquote>
<p>During the divorce both spouses have to tell the judge about their
income and any debts they owe. When the court grants a divorce,
property will be divided equitably (though not always equally) between
the spouses.</p>
<p>New York's Equitable Distribution Law recognizes marriage as an
economic as well as a social partnership. The law requires that a
judge divide property as fairly as possible.</p>
<p>The Equitable Distribution Law talks about two types of property for
purposes of divorce: marital property and separate property. Marital
property will be divided between the two spouses.</p>
<p>Marital Property: all property either spouse bought during the
marriage, regardless of whose name is on the property. Pension plans
and other retirement plans are considered marital property. The
portion of marital property earned during the marriage will be divided
by the court.</p>
<p>Separate Property: property a spouse owned before the marriage, or any


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portion of marital property earned during the marriage will be divided
by the court.</p>
<p>Separate Property: property a spouse owned before the marriage, or any
inheritance or personal injury payments or gifts from someone other
than the spouse during the marriage.</p>
<p>To see the factors a court should consider in making an equitable
distribution award, see Domestic Relations Law § 236(B)(5)(d).</p>
</blockquote>
<p>(<a href="https://ww2.nycourts.gov/divorce/info_faqs.shtml" rel="nofollow noreferrer">Source</a>)</p>
<p>In New York State, separate property and marital property is defined as follows:</p>
<blockquote>
<p>c. The term &quot;marital property&quot; shall mean  all  property  acquired  by
either or both spouses during the marriage and before the execution of
a separation  agreement  or  the  commencement  of  a  matrimonial
action, regardless of the form in which  title  is  held,  except  as
otherwise  provided  in  agreement  pursuant  to  subdivision  three


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action, regardless of the form in which  title  is  held,  except  as
otherwise  provided  in  agreement  pursuant  to  subdivision  three
of this part.</p>
<p>Marital property shall not  include  separate  property  as
hereinafter defined.</p>
<p>d. The term separate property shall mean:</p>
<p>(1) property acquired before marriage or property acquired by bequest,
devise, or descent, or gift from a party other than the spouse;</p>
<p>(2) compensation for personal injuries;</p>
<p>(3)  <strong>property  acquired  in  exchange  for or the increase in value of</strong>
<strong>separate property</strong>, except to the extent that such appreciation is due
in part to the contributions or efforts of the other spouse;</p>
<p>(4) property described as separate property by  written  agreement  of
the parties pursuant to subdivision three of this part.</p>
</blockquote>
<p>(<a href="https://law.justia.com/codes/new-york/2021/dom/article-13/236/" rel="nofollow noreferrer">Source</a>)</p>


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the parties pursuant to subdivision three of this part.</p>
</blockquote>
<p>(<a href="https://law.justia.com/codes/new-york/2021/dom/article-13/236/" rel="nofollow noreferrer">Source</a>)</p>
<p>The factors to be considered in the equitable property division in New York State, per the same source, are as follows:</p>
<blockquote>
<ol start="5">
<li>Disposition of property in certain matrimonial actions.</li>
</ol>
<p>a.  Except where  the  parties have provided in an agreement for the
disposition of their property pursuant to subdivision three of this
part, the court, in an action wherein all or part of the relief
granted is divorce,  or  the dissolution,  annulment or declaration of
the nullity of a marriage, and in proceedings to obtain a distribution
of marital property following a foreign  judgment  of  divorce, shall
determine the respective rights of the parties in their separate or
marital property, and shall provide for the disposition thereof in the
final judgment.</p>


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determine the respective rights of the parties in their separate or
marital property, and shall provide for the disposition thereof in the
final judgment.</p>
<p>b. Separate property shall remain such.</p>
<p>c.  Marital  property  shall  be  distributed  equitably  between
the parties, considering the circumstances of the case and of the
respective parties.</p>
<p>d. In determining an equitable disposition of property under
paragraph c, the court shall consider:</p>
<p>(1) the income and property of each party at the time of marriage,
and at the time of the commencement of the action;</p>
<p>(2)  the  duration  of  the  marriage  and  the age and health of
both parties;</p>
<p>(3) the need of a custodial  parent  to  occupy  or  own  the
marital residence and to use or own its household effects;</p>
<p>(4) the loss of inheritance and pension rights upon dissolution of
the marriage as of the date of dissolution;</p>
<p>(5)  the  loss  of  health  insurance benefits upon dissolution of


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<p>(4) the loss of inheritance and pension rights upon dissolution of
the marriage as of the date of dissolution;</p>
<p>(5)  the  loss  of  health  insurance benefits upon dissolution of
the marriage;</p>
<p>(6) any award of maintenance under subdivision six of this part;</p>
<p>(7) <strong>any equitable  claim  to,  interest  in,  or  direct  or</strong>
<strong>indirect contribution made to  the  acquisition of such marital</strong>
<strong>property by the party not having title, including  joint  efforts  or</strong>
<strong>expenditures  and contributions  and  services  as  a  spouse,</strong>
<strong>parent, wage earner and homemaker, and to the career or career</strong>
<strong>potential of the other party.</strong> The court shall not consider as marital
property subject to distribution the value of a spouse's enhanced
earning capacity arising from a license, degree, celebrity goodwill,
or career enhancement. **However, in arriving at an  equitable division


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earning capacity arising from a license, degree, celebrity goodwill,
or career enhancement. **However, in arriving at an  equitable division
of marital property, the court shall consider the direct or indirect
contributions  to  the  development  during the marriage of the
enhanced earning capacity of the other spouse;</p>
<p>(8) the liquid or non-liquid character of all marital property;</p>
<p>(9) the probable future financial circumstances of each party;</p>
<p>(10) the impossibility or difficulty of evaluating any component
asset or  any  interest  in  a  business,  corporation  or profession,
and the economic desirability of retaining such asset  or  interest
intact  and free from any claim or interference by the other party;</p>
<p>(11) the tax consequences to each party;</p>
<p>(12) the wasteful dissipation of assets by either spouse;</p>
<p>(13) any transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration;</p>


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<p>(12) the wasteful dissipation of assets by either spouse;</p>
<p>(13) any transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration;</p>
<p>(14) whether either party has committed an act  or  acts  of
domestic violence,  as  described  in  subdivision  one  of  section
four hundred fifty-nine-a of the social services law, against the
other party and the nature, extent, duration and impact of such act or
acts;</p>
<p>(15) in awarding the possession of a companion animal, the court
shall consider the best interest of such animal. &quot;Companion animal&quot;,
as  used in this subparagraph, shall have the same meaning as in
subdivision five of section three hundred fifty of the agriculture and
markets law; and</p>
<p>(16)  any other factor which the court shall expressly find to be
just and proper.</p>
<p>e. In any action in which the court shall determine that an
equitable distribution is  appropriate  but would be impractical or


