No, but technology results in the possibility of operating a large government. And in the case of the United States results in an explosion of interstate commerce. Now, that provides the opportunity for Federal intervention in many areas that were reserved for states under the argument that it affects "interstate commerce."
Think about all the programs, agencies, and laws the government is operating or executing and saying it's constitutional because of "interstate commerce.": Social security, Medicare, Interstate highways, FAA, FCC, minimum wage laws, and the National Labor Relations Board and related union laws, just to name a few for starters.
Some will say that the government is constitutionally running these programs under a vague "general welfare" clause. But that's not true. General welfare is only mentioned in the preamble: and the preamble is not allowed to be used as legal proof, it is just the corporate equivilent of a mission statement.
The Civil Rights Act of 1964 that says you can't discriminate based on protected classes in places of public accomodation (like banks, hospitals, motels, etc) is totally based on interstate commerce. When the Heart of Atlanta Motel denied black people rooms the government sued and the motel said the law was unconstitutional. The government's argument was that a person could visit Atlanta from another state and thus it affects interstate commerce.
Or how about they guy suing Apple saying that the iPod is forcing him to use iTunes and there's no other way for him to get music onto it.
Claiming that it's a monopolistic move!
Too bad counter lawsuits based on malicous prosecution are so impossible to win. You basically have to prove that the other party only intended to use the legal system as a "knife or stick", had no basis whatsoever, and obviously you have to first defend yourself in the action and be found not liable, too.
You are correct: they are trying to actively be held to a "safe" dating environment. But that bring up the issue of service company liability.
A mechanic is held to a higher standard than I would be I if I worked on your car. Yet in almost all states there is no warranty on the work he did for you.
I still see it as either a warranty claim and that doesn't fly or that somehow people want hold True.Com accountable for the actions of others.
Since, you are saying that there is a failure in the service we're talking warranty and warranties are very limited in service contracts and maybe completely written out of existence by the contract. The warranty claim would also be reduced to a contract-related issue and thus the victim could only sue for the $20 a month, in that case.
Only the tort related actions would result in a larger cash award. On the other hand, if it comes down to date insurance, as in, True.Com being responsible for others actions that I feel is far-fetched.
As I noted before, you can buy insurance for anything. Lloyd's of London would insure Jennifer Lopez' famous part of her anatomy....
Still there's the big problem of holding someone else accountable for another's actions.
That's actually a pretty strong defense in any case. It's not about duties, torts, or contracts, but a basic requirement of the law: you are only responsible for your own actions or inactions and not of others.
To put the dating service on such a high standard as to guarantee that the dates would be crime-free would be unfair.
I know it's a big company and somehow that makes us feel that it's okay to sue them for lots of money, but it has the rights of others, too.
Basically, it comes down to the following:
Either a first-time criminal went onto True.Com and has no record and found a victim. They don't advertise to be mind-readers so I don't think that legal argument of holding True.Com responsible will work.
Or a criminal who has a record gets onto True.Com. How? Either the background check failed or the criminal used a false identity. If a false identity was used, then True.Com was a victim of a fraud, too. It wouldn't be reasonable to assume that True.Com does government security clearance type investigations and talks to your grade-school teachers, all your neighbors, etc. Now if the background check failed we are again discussing warranties and those issues which fail under a service business and pretty much apply only to the sale of goods.
I'm sure True.Com will follow the standard pattern:
Fight all lawsuits strongly and after the first loss make sure they settle with victims quietly with non-disclosure agreements to protect the business' image.
I disagree with the jury decision in that case. Actually, it's quite interesting to see how they portioned out the blame.
McDonalds was selling a product and there is also a higher standard of care when someone is injured on your property. Since, she was a property licensee in the legal sense (she had a right to be there as in invited customer) McDonalds has to be careful not to let her get hurt. Also, since a tangible product resulted in her injury there are questions of warranty of the product under its "fit for use" and "merchantibility" rules.
The jury found her 20% at fault.
The story is available at http://www.centerjd.org/free/mythbusters-free/MB_m cdonalds.htm
Personally, I believe she was at least 50% at fault and therefore in most states did not deserve any damages.
Some states, very few, operate under a form of contributory negligence. This is where if you are at all responsible (even 1%) for the problem you are barred from getting any money in a lawsuit. Most states follow a proportionate scheme of some kind, but it varies. Some like California are polar opposite and allow you to blame the other party for 1% of the damages and collect a 1% award of the total damages. Most states follow a rule based around 50% as the threshold. In other words if you are responsible for 49% of the problem you can still collect 51% of the damages from the offending party.
"20% of Americans are in the bottom quintile of the bell shaped curve."
If this is true, then is it a normal distribution, e.g., is the curve even bell shaped?
Interesting theory. Just kidding, I stand corrected.
Representative Corzine met with President Bush today to discuss a shocking new finding:
20% of Americans are in the bottom quintile of the bell shaped curve.
Intelligence tests and other key indicators including income, wealth, education, life expectancy and other items all point to a huge crisis in America. Roughly 1/5th of the population always ends up in the 20% of all measured results. Be it in number of children they have or their leisure time.
It seems that no part of American life is touched by this. "We can't allow another day go by with American's doing poorly", said Mr. Corzine. Bush reiterated his new policy of Leave No one Behind.
While both Bush and Corzine agree that there is a problem each offered his own suggestion. Bush wants to see 20% of the population detained for further study while Corzine feels that is misguided. Corzine called for a new plan to increase US population by 20% in a move called "Population shift."
It appears unlikely that either plan will make a difference in the short run. The publis seems to be in the mood for change and astrology. Perhaps Miss Cleo can offer advice in these trying times.
31% of the public believes in astrology including 6% of women and 43% of those aged 25 to 29 but only 17% of people aged 65 and over, and 25% of men.
http://www.harrisinteractive.com/harris_poll/index.asp?PID=359
I believe their web page at
http://www.true.com/secure.htm
explains their position quite easily.
They are not an insurance company against bad daters or criminals. You can buy insurance against ANYTHING from places like Lloyd's of London.
I still fail to see a breach of a tort duty. And again a contract duty would only be breached if they did not do the lookup at rapsheets.com which they promised in exchange for your money.
I think we need to think of this not in terms of a corporation, but as an individual, since a corporation is treated just like any individual before the law. And we need to view at it from the standpoint of torts or contracts. Since, that's what almost all private law suits are based on. Big exceptions to that rule include family court (child custody, divorce) and probate (wills and estates).
If I were to set you up on blind date and "vouch" for that other individual as a friend and that other person does something: I am under no criminal nor civil liabilty, unless I had information beforehand that he/she was going to harm you in some way. (And being an ex-convict does not change the pattern, either I would have known and put you deliberately into harms way and therefore acted as a participant or I would have had no knoweledge that such an act was actually fully intentioned.)
If I had no information and set you up: then I can't be punished for another's wrong doing and that escapes the tenants of both criminal and civil law. Even parents are not criminally or civilly liable for the direct actions of their children.
So, there is no criminal liablity on True.Com for another's actions.
Now, to analyze it on the civil lawsuit where money is sought for damages.
If the victim were to allege a tort he or she would have to first prove that a duty in law existed by True.com. True.com provides a service and as such services do not really have to have strong warranties in most states. As opposed to laws that require manufacturers to sell "merchantable" and "fit for use" equipment in all states.
What other tort duties can we impose on True.Com? Other tort duties focus in on requirements in law such as the tort of assualt. If you commit assualt you can be held liable criminally where the government will prosecute you in criminal court and ask for fines or jail time and the victim can sue for damages in a completely separate and independent civil suit.
Did True.Com commit a crime? No
What other torts remain? Did True.Com violate an internal policy? Its internal and external policies say that they will do a background check, not that it is completely effective and not that they would actually screen candidates based on that information, only that they would actually do it.
For additional information on torts see: http://www.law.cornell.edu/topics/torts.html
Finally, that leaves us with a contract suit. Contract law is markedly different than tort law. Tort law requires that the other party had a duty and breached a duty. A duty can be imposed by law or contract. Like, the law can require that you collect my social security number upon hiring and that if I don't give it to you, then you can't hire me: and I can't sue you about that. Or we can voluntarily assign each other duties via contract. However, contract duties are different.
Contract duties would be pretty much whatever is written on the contract and nothing more nor less.
Lastly, we need to consider a couple other items.
In a contract dispute no damages are allowed for punitive damages and so the customer can only sue for the contract amount: $20 a month or whatever.
In a tort issue, which I personally find it farfetched in a hypothetical case against True.com, if the tort was intentional on the part of True.com (like they intentionally skipped the background check) then punitive damages can be awarded. Without intent only actual damages suffered as a direct result of True.com breach of duty can be considered in damages.
Lastly, juries can only try issues of fact and not issues of law. The jury will get the law from the judge and based on those instructions decide accordingly. Any jury awards that are deemed punitive in a non-punitive case (unintentional tort/contract) would be recinded by the judge or higher court.
Also, gross errors by the jury that either ignore issues of fact or issues of law can be ove
These dating services are considered commercial speech. Government has gotten the power to limit and control the content, time, location, and manner of commercial speech as well as reasonable limitations on political speech, too.
More limits are allowed on commercial speech than for protected political speech. Example, if you go around town blaring on a loud speaker at 2am to Vote for Joe -- I'm certain that they would try to fine you and stop you by giving you a fine. Sure it's political speech and largerly protected, but not protected at 2am in the streets...
The previous poster noted the Surgeon General's Warning. Also, for commercial speech let's not forget required APR disclosures calculated the way the government wants in a box the government designed: for all personal type loans.
I guess the parallel in terms of "free speech" would be if I made a personal Dating web-site for me I ought to be exempt from that law, since my personal speech is protected higher than commercial speech.
But, then who knows...Governments love to govern and regulate.
I love liberty.
Imposed liablity in a contract would only be for costs incurred (such as the dating service, itself) and can not usually be punitive in nature.
They only claim to carry-out background checks. Not that they will screen users out because of the results, but that they have made the backgroudn check.
Now, if they fail to do the check or do it in a shoddy way you could argue breach of contract, but then again, the liability would be limited to the amount of the contract and nothing more.
To argue that they committed a tort because their background check failed and then you got harmed because of that?
I'm sure in reality they would settle the lawsuit, but it would be on shaky legal ground to take it to trial...
The affected company's will argue that it is beyond the power of the state and the state will argue that it is a law in the interests of health and welfare under the general purvue of the state's police power.
I see a really compelling interstate commerce arugment that can be made to help invalidate any law, though.
Good point!
Actually, even if there is no legal basis without a breach of a contract or privacy policy: there are higher courts like/. and public opinion!
We'll/. 'em til they roast!
So again: please find the exact law. No Criminal negligence found in Title 18 USC. In state law it almost always refers only to criminally negligent homicide or the criminally negligent endangerment of a child, only.
I believe you are confusing torts and criminal law.
Find me a criminal law that says negligent release of sensitive information is a crime??
However, if you are referring to negligence in a tort action at common law then there is a possibility. However, again there is no law making them protect the information. In a tort action we must find an actual breach of duty that is required by law. The only duty that may apply is if this company had a privacy policy or contract that said they would protect the information.
Without such a contract or policy known to the public there is no basis of a breach of duty that I can think of.
If you give me your social security number I can give it out with impunity as long as I do not give it to a known identity thief or constructively assist in the perpretration of a fraud since that would be an obvious accessory or aiding crime.
These guys (and everybody who violates the privacy laws like them) should be required to pay for in depth fraud monitoring and credit report monitoring. If you are going to warehouse our data especially without our knowledge, then they should pay for their own screwups.
What privacy law are you referring to?
If you give me your date of birth and social I am under no duty to guard that information unless it is part of my privacy policy or a contract between us.
The Privacy Act of 1974 applies only to the Government of the United States and not private parties.
It's an acronym to look benign.
How could a patriot be opposed to this:
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) SHORT TITLE- This Act may be cited as the `Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001'. (b) TABLE OF CONTENTS- The table of contents for this Act is as follows:
Slashdot Mirror
No, but technology results in the possibility of operating a large government. And in the case of the United States results in an explosion of interstate commerce. Now, that provides the opportunity for Federal intervention in many areas that were reserved for states under the argument that it affects "interstate commerce."
Think about all the programs, agencies, and laws the government is operating or executing and saying it's constitutional because of "interstate commerce.": Social security, Medicare, Interstate highways, FAA, FCC, minimum wage laws, and the National Labor Relations Board and related union laws, just to name a few for starters.
Some will say that the government is constitutionally running these programs under a vague "general welfare" clause. But that's not true. General welfare is only mentioned in the preamble: and the preamble is not allowed to be used as legal proof, it is just the corporate equivilent of a mission statement. The Civil Rights Act of 1964 that says you can't discriminate based on protected classes in places of public accomodation (like banks, hospitals, motels, etc) is totally based on interstate commerce. When the Heart of Atlanta Motel denied black people rooms the government sued and the motel said the law was unconstitutional. The government's argument was that a person could visit Atlanta from another state and thus it affects interstate commerce.
See the decision here
How much Interstate Commerce occurred in the 18th Century? Much...much, less.
Or how about they guy suing Apple saying that the iPod is forcing him to use iTunes and there's no other way for him to get music onto it.
Claiming that it's a monopolistic move!
Too bad counter lawsuits based on malicous prosecution are so impossible to win. You basically have to prove that the other party only intended to use the legal system as a "knife or stick", had no basis whatsoever, and obviously you have to first defend yourself in the action and be found not liable, too.
You are correct: they are trying to actively be held to a "safe" dating environment. But that bring up the issue of service company liability. A mechanic is held to a higher standard than I would be I if I worked on your car. Yet in almost all states there is no warranty on the work he did for you. I still see it as either a warranty claim and that doesn't fly or that somehow people want hold True.Com accountable for the actions of others. Since, you are saying that there is a failure in the service we're talking warranty and warranties are very limited in service contracts and maybe completely written out of existence by the contract. The warranty claim would also be reduced to a contract-related issue and thus the victim could only sue for the $20 a month, in that case. Only the tort related actions would result in a larger cash award. On the other hand, if it comes down to date insurance, as in, True.Com being responsible for others actions that I feel is far-fetched. As I noted before, you can buy insurance for anything. Lloyd's of London would insure Jennifer Lopez' famous part of her anatomy....
I'm not sure anymore. Why with McDonald's being sued over hot coffee and all...Sometimes I wonder if I am in a bizzaro version of America.
"Not in Costa Rica, you don't"
Still there's the big problem of holding someone else accountable for another's actions.
That's actually a pretty strong defense in any case. It's not about duties, torts, or contracts, but a basic requirement of the law: you are only responsible for your own actions or inactions and not of others.
To put the dating service on such a high standard as to guarantee that the dates would be crime-free would be unfair.
I know it's a big company and somehow that makes us feel that it's okay to sue them for lots of money, but it has the rights of others, too.
Basically, it comes down to the following:
Either a first-time criminal went onto True.Com and has no record and found a victim. They don't advertise to be mind-readers so I don't think that legal argument of holding True.Com responsible will work.
Or a criminal who has a record gets onto True.Com.
How? Either the background check failed or the criminal used a false identity. If a false identity was used, then True.Com was a victim of a fraud, too. It wouldn't be reasonable to assume that True.Com does government security clearance type investigations and talks to your grade-school teachers, all your neighbors, etc. Now if the background check failed we are again discussing warranties and those issues which fail under a service business and pretty much apply only to the sale of goods.
I'm sure True.Com will follow the standard pattern:
Fight all lawsuits strongly and after the first loss make sure they settle with victims quietly with non-disclosure agreements to protect the business' image.
I disagree with the jury decision in that case. Actually, it's quite interesting to see how they portioned out the blame.
m cdonalds.htm
McDonalds was selling a product and there is also a higher standard of care when someone is injured on your property. Since, she was a property licensee in the legal sense (she had a right to be there as in invited customer) McDonalds has to be careful not to let her get hurt. Also, since a tangible product resulted in her injury there are questions of warranty of the product under its "fit for use" and "merchantibility" rules.
The jury found her 20% at fault.
The story is available at http://www.centerjd.org/free/mythbusters-free/MB_
Personally, I believe she was at least 50% at fault and therefore in most states did not deserve any damages.
Some states, very few, operate under a form of contributory negligence. This is where if you are at all responsible (even 1%) for the problem you are barred from getting any money in a lawsuit. Most states follow a proportionate scheme of some kind, but it varies. Some like California are polar opposite and allow you to blame the other party for 1% of the damages and collect a 1% award of the total damages. Most states follow a rule based around 50% as the threshold. In other words if you are responsible for 49% of the problem you can still collect 51% of the damages from the offending party.
Are they also responsible if the person has bad teeth?
Inquiring minds want to know
"20% of Americans are in the bottom quintile of the bell shaped curve." If this is true, then is it a normal distribution, e.g., is the curve even bell shaped?
Interesting theory. Just kidding, I stand corrected.
Representative Corzine met with President Bush today to discuss a shocking new finding:
20% of Americans are in the bottom quintile of the bell shaped curve. Intelligence tests and other key indicators including income, wealth, education, life expectancy and other items all point to a huge crisis in America. Roughly 1/5th of the population always ends up in the 20% of all measured results. Be it in number of children they have or their leisure time.
It seems that no part of American life is touched by this. "We can't allow another day go by with American's doing poorly", said Mr. Corzine. Bush reiterated his new policy of Leave No one Behind.
While both Bush and Corzine agree that there is a problem each offered his own suggestion. Bush wants to see 20% of the population detained for further study while Corzine feels that is misguided. Corzine called for a new plan to increase US population by 20% in a move called "Population shift."
It appears unlikely that either plan will make a difference in the short run. The publis seems to be in the mood for change and astrology. Perhaps Miss Cleo can offer advice in these trying times.
31% of the public believes in astrology including 6% of women and 43% of those aged 25 to 29 but only 17% of people aged 65 and over, and 25% of men. http://www.harrisinteractive.com/harris_poll/index .asp?PID=359
I wonder from how many states True orders from. Rapsheets.com charges per state when you ask it to search.
I believe their web page at http://www.true.com/secure.htm explains their position quite easily. They are not an insurance company against bad daters or criminals. You can buy insurance against ANYTHING from places like Lloyd's of London. I still fail to see a breach of a tort duty. And again a contract duty would only be breached if they did not do the lookup at rapsheets.com which they promised in exchange for your money.
I think we need to think of this not in terms of a corporation, but as an individual, since a corporation is treated just like any individual before the law. And we need to view at it from the standpoint of torts or contracts. Since, that's what almost all private law suits are based on. Big exceptions to that rule include family court (child custody, divorce) and probate (wills and estates).
If I were to set you up on blind date and "vouch" for that other individual as a friend and that other person does something: I am under no criminal nor civil liabilty, unless I had information beforehand that he/she was going to harm you in some way. (And being an ex-convict does not change the pattern, either I would have known and put you deliberately into harms way and therefore acted as a participant or I would have had no knoweledge that such an act was actually fully intentioned.)
If I had no information and set you up: then I can't be punished for another's wrong doing and that escapes the tenants of both criminal and civil law. Even parents are not criminally or civilly liable for the direct actions of their children.
So, there is no criminal liablity on True.Com for another's actions.
Now, to analyze it on the civil lawsuit where money is sought for damages.
If the victim were to allege a tort he or she would have to first prove that a duty in law existed by True.com. True.com provides a service and as such services do not really have to have strong warranties in most states. As opposed to laws that require manufacturers to sell "merchantable" and "fit for use" equipment in all states.
What other tort duties can we impose on True.Com? Other tort duties focus in on requirements in law such as the tort of assualt. If you commit assualt you can be held liable criminally where the government will prosecute you in criminal court and ask for fines or jail time and the victim can sue for damages in a completely separate and independent civil suit.
Did True.Com commit a crime? No
What other torts remain? Did True.Com violate an internal policy? Its internal and external policies say that they will do a background check, not that it is completely effective and not that they would actually screen candidates based on that information, only that they would actually do it.
For additional information on torts see:
http://www.law.cornell.edu/topics/torts.html
Finally, that leaves us with a contract suit. Contract law is markedly different than tort law. Tort law requires that the other party had a duty and breached a duty. A duty can be imposed by law or contract. Like, the law can require that you collect my social security number upon hiring and that if I don't give it to you, then you can't hire me: and I can't sue you about that. Or we can voluntarily assign each other duties via contract. However, contract duties are different.
Contract duties would be pretty much whatever is written on the contract and nothing more nor less.
Lastly, we need to consider a couple other items.
In a contract dispute no damages are allowed for punitive damages and so the customer can only sue for the contract amount: $20 a month or whatever.
In a tort issue, which I personally find it farfetched in a hypothetical case against True.com, if the tort was intentional on the part of True.com (like they intentionally skipped the background check) then punitive damages can be awarded. Without intent only actual damages suffered as a direct result of True.com breach of duty can be considered in damages.
Lastly, juries can only try issues of fact and not issues of law. The jury will get the law from the judge and based on those instructions decide accordingly. Any jury awards that are deemed punitive in a non-punitive case (unintentional tort/contract) would be recinded by the judge or higher court.
Also, gross errors by the jury that either ignore issues of fact or issues of law can be ove
These dating services are considered commercial speech. Government has gotten the power to limit and control the content, time, location, and manner of commercial speech as well as reasonable limitations on political speech, too. More limits are allowed on commercial speech than for protected political speech. Example, if you go around town blaring on a loud speaker at 2am to Vote for Joe -- I'm certain that they would try to fine you and stop you by giving you a fine. Sure it's political speech and largerly protected, but not protected at 2am in the streets... The previous poster noted the Surgeon General's Warning. Also, for commercial speech let's not forget required APR disclosures calculated the way the government wants in a box the government designed: for all personal type loans. I guess the parallel in terms of "free speech" would be if I made a personal Dating web-site for me I ought to be exempt from that law, since my personal speech is protected higher than commercial speech. But, then who knows...Governments love to govern and regulate. I love liberty.
Imposed liablity in a contract would only be for costs incurred (such as the dating service, itself) and can not usually be punitive in nature.
They only claim to carry-out background checks. Not that they will screen users out because of the results, but that they have made the backgroudn check.
Now, if they fail to do the check or do it in a shoddy way you could argue breach of contract, but then again, the liability would be limited to the amount of the contract and nothing more.
To argue that they committed a tort because their background check failed and then you got harmed because of that?
I'm sure in reality they would settle the lawsuit, but it would be on shaky legal ground to take it to trial...
Not sure like every possible matter:
The affected company's will argue that it is beyond the power of the state and the state will argue that it is a law in the interests of health and welfare under the general purvue of the state's police power.
I see a really compelling interstate commerce arugment that can be made to help invalidate any law, though.
Sorry.
Actually my first reply was to the first posting on this topic and not really directed to you.
I was being serious only to learn since the law does vary between the states and California does seem to have some strict ones on the books.
Lastly,
Yes: about them "What a way to run a railroad!"
How do they operate like that?
So again, sorry....
Good point! Actually, even if there is no legal basis without a breach of a contract or privacy policy: there are higher courts like /. and public opinion!
We'll /. 'em til they roast!
So again: please find the exact law. No Criminal negligence found in Title 18 USC. In state law it almost always refers only to criminally negligent homicide or the criminally negligent endangerment of a child, only.
I believe you are confusing torts and criminal law.
Find me a criminal law that says negligent release of sensitive information is a crime??
However, if you are referring to negligence in a tort action at common law then there is a possibility. However, again there is no law making them protect the information. In a tort action we must find an actual breach of duty that is required by law. The only duty that may apply is if this company had a privacy policy or contract that said they would protect the information.
Without such a contract or policy known to the public there is no basis of a breach of duty that I can think of.
If you give me your social security number I can give it out with impunity as long as I do not give it to a known identity thief or constructively assist in the perpretration of a fraud since that would be an obvious accessory or aiding crime.
These guys (and everybody who violates the privacy laws like them) should be required to pay for in depth fraud monitoring and credit report monitoring. If you are going to warehouse our data especially without our knowledge, then they should pay for their own screwups.
What privacy law are you referring to?
If you give me your date of birth and social I am under no duty to guard that information unless it is part of my privacy policy or a contract between us.
The Privacy Act of 1974 applies only to the Government of the United States and not private parties.
Only that Florida is not a community property state. Very few states use that system.
It's an acronym to look benign. How could a patriot be opposed to this: SECTION 1. SHORT TITLE AND TABLE OF CONTENTS. (a) SHORT TITLE- This Act may be cited as the `Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001'. (b) TABLE OF CONTENTS- The table of contents for this Act is as follows:
But does it run Windows Reduced Gauge Railroad Edition?