Don't know about American law, but in French the notion exists and is called "abus de droit"; just because you can do something "in general", you can't do it with the specific purpose of circumventing another legal obligation.
For example, as an Irish company, you can open a subsidiary in France to do business in France. That's a right.
But if you're doing business in France essentially, you can't make the French company a subsidiary of an Irish one that doesn't have any other activity, in the sole purpose of evading French taxes. That would be abusing the right (of opening subsidiaries). It may conform to the letter of the law but not to its spirit, and can be punished.
Of course, this is all a very grey area and up to the judge to evaluate (and my explanation perhaps lacks clarity); but it's real nonetheless!
For example, as an Irish company, you can open a subsidiary in France to do business in France.
The whole point of the EU single market is that you do not have to do that. You can set up shop in Ireland and sell to the French market until the cows come home. You only owe Irish taxes (modulo the recent completely crazy VAT changes).
Laws that say "forget the law, anything we think is unreasonable is illegal" are a growing problem in Europe. It makes the EU look like fools to the rest of the world when something as basic as the rule of law becomes flaky and unpredictable. France is not just causing itself problems with this kind of action, their greed will create a bad impression of the whole of the EU.
>Laws that say "forget the law, anything we think is unreasonable is illegal" are a growing problem in Europe. It makes the EU look like fools
Not trying to start a flamewar here, but the common German/European perspective on the US legal system consists of corporations owning it (because of huge costs), consumers abusing it ("cat in microwave/washing machine/toaster", unreasonable compensations, class action lawsuits) and agencies outright ignoring it.
Edit: Remembered one more: Juries deciding whether murderers are guilty or not. Simply unthinkable over here. Ironically the horror of this scenario is fuelled by the US/Hollywood itself.
Edit 2: War on drugs / world's highest prison population / racial profiling / death sentence. The longer I think about it, the worse it gets. I think I made my point. The image is really, really bad.
We might have our kinks, but I don't think that most of the people in jail ended up in there because "Yea, what you were doing was allowed by the law, but you know we kind of didn't like it".
When that finally starts to happen in the USA, you can count on me being in the streets protesting.
Edit: You may also want to consider the current practices in Germany regarding frivolous law suits against websites. We aren't the only country with this problem. So is every place.
>We might have our kinks, but I don't think that most of the people in jail ended up in there because "Yea, what you were doing was allowed by the law, but you know we kind of didn't like it
And it's not like that in France either. You have to take into account that some HN users are real experts on U.S legal matters, whereas most European legal matters are discussed on here without much if any professional legal expertise.
>Edit: You may also want to consider the current practices in Germany regarding frivolous law suits against websites. We aren't the only country with this problem. So is every place.
I assume they are referring to the cease-and-desist letters sent to websites that don't publish an "Impressum"[1] (information about the person responsible for the website, including an address and phone number). It's a holdover from print publications, and there's a bit of legal uncertainty as to whether it applies to small private websites, but the threshold for it being required is really low.
Unsurprisingly, this has created an industry of scummy law firms that specialise in finding infringing websites and sending them cease-and-desist letters with a bill for their legal fees attached.
That's against the letter of the law, rather than some vague interpretation thereof.
I know there are problems with the application of three strikes, but it's not terribly unreasonable to say that we have little cause to believe that you will reform after, say, murdering or raping your third victim and therefore little reason to let you out of prison such that you can seek new ones. And it's your third felony that puts you over, it's not like they can bust you for jaywalking, though I'm sure there are exceptional cases, which could be corrected by presidential pardons if there was good cause to believe they've repented.
But I'm sure that's an unpopular opinion here, as I doubt many people here have ever had to worry about someone in prison for murdering their mother who also threatened grandma. Now, it's great if people reform, but committing your third felony is pretty good evidence that you aren't likely to.
The absurdly low dollar value for felony theft or property damage doesn't help.
Heck, there's places where 15 over is a misdemeanor and any sort of misdemeanor is a pretty big roadblock to upward mobility if you're starting from a low point.
I do agree the U.S has a problem with rather frivulious lawsuits over "not following the letter of the law" or "wasn't mentioned in the safety manual to not do this thing that should have been common sense".
If I remember correctly though, the silliness of the above is actually due to a law about packaging must contain allergen information for certain common allergies. This means even peanuts must contain the label in order to comply with the law. Rather than list exceptions and complicate the law, it applies broadly to everything.
IANAL, I may not be remembering this fact 100% correctly.
I find it absolutely hilarious whenever I see it - but simple laws with "silly consequences" are better than complex laws that are difficult to follow, let alone enforce. Not to mention having to come up with and define products that would fit into the exceptions list, and investigating whether or not the product actually - blah blah blah. Bunch of overhead.
Better use of tax payer money to say "if it contains one of these allergens, say so on the packaging" and be done with it. No questions asked and it doesn't complicate the law to avoid saying something silly like "peanuts may contain peanuts".
I think perhaps a more subtle warning would be to have the container sense an rfid tag in peanut allergic peoples' hands and set off a warning alarm and flashing lights.
To calm you a bit, while not legally required, there are packages in Germany advertising the product being free of gluten and lactose and vegan, when there are obviously neither milk, grains nor animals involved.
Okay, I'm curious. What's this supposed to mean? That consumers are putting cats in those devices and getting away with it, or putting cats in those devices to void warranties or something?
The best I can come up with is that you are thinking of cat in the microwave, which is an urban legend. I'm not sure how that's affecting the view of the US legal system.
I am not saying that it is absolutely true, just that it is the notion many have: In the US you can do something stupid and blame the manufacturer for the damages, if it was not saying in the manual, that you cannot do it.
Combine that with uncapped and ridiculously high compensation claims plus class action lawsuits, which are not a thing over here, and you get a comical impression.
As I said, this may not be totally true, but even though the European Commission brings up stupid ideas once in a while ("Let's introduce quotas for netflix!"), I would say on the global scale the image of the EU legal system is quite okay.
I wasn't trying to imply you were saying it was true, I was just trying to figure out what belief of Europeans you were trying to convey, since that idea is so foreign to me.
> class action lawsuits, which are not a thing over here, and you get a comical impression.
Class actions have a very important place in the law, and they are a thing in parts of Europe[1], and are becoming more so, because they serve a very important need[2]. It gets abused, but so does everything in the legal system, that doesn't mean it's inherently a bad idea.
> As I said, this may not be totally true
In this case, I would hazard it's likely totally untrue. You'll likely go to jail for animal abuse, not sue the manufacturer.
>Class actions have a very important place in the law, and they are a thing in parts of Europe[1], and are becoming more so, because they serve a very important need[2]. It gets abused, but so does everything in the legal system, that doesn't mean it's inherently a bad idea.
My view on it is a way for lawyers to make big money by recruiting clients not the other way around. It gives the impression, that it is all about the money, not about being right.
In Germany there is a thing called "Nebenklage" ("accessory prosecution"), which makes it possible for individuals to join the state attorney, once he started a lawsuit. This is how big scandals are handled and victims can get compensations without lawyers fishing for clients.
> My view on it is a way for lawyers to make big money by recruiting clients not the other way around.
It started out as a way to hold companies responsible for small amounts of harm that are spread out to many individuals. Is it worth it for any one individual to sue a company for a $5 product that purposefully misleads consumers? Is it okay for a company to take advantage of consumers in this way purely because they are unlikely to be called upon to account for their misbehavior? That's the reasoning behind a class action lawsuits. Allow many people to join together to act as a counterbalance to companies flaunting their relative position of power. Regulation is the other way to deal with this, but regulation often lags abuse, and why regulate specifically what is already against the law and just needs an enforcement mechanism?
The European view of ridiculous US class-action suits is probably mostly thanks to cases where there's a huge number of people in the suit, the lawyer gets free hands, and the result is $5 compensation and a movie ticket (upon written request accompanied by proof of purchase). The lawyer's cut is $3 million in legal fees, paid by the company to avoid a larger settlement.
This was probably an exaggeration, but that's the image one gets.
Even that serves a purpose. If you view the case as specifically to compensate people for the wrong, then it seems ridiculous, but if it's to make people feel like the company had to pay for their mistake and/or disincentivize the behavior in that and other companies, it serves a purpose. Do lawyers get too large a cut? Possibly, but remember that they are sometimes going up against large companies with deep pockets, and these cases may cost lots of money. Do we want to incentivize law firms to take these cases, even if they may not pay off? Yes. Do we want to incentivize them so much that they seek out claimants to create lawsuits for? Probably not, but again, if it keeps companies from trying to circumvent the law, it may not be entirely a bad thing.
> The lawyer gets free hands ... The lawyer's cut is $3 million in legal fees, paid by the company to avoid a larger settlement
AFAIK there has to be actual named defendants that represent the class, and they would decide on whether to accept a settlement. The lawyers can only advise, not decide. I'm by no means an expert though.
Edit: Clarified what I was responding to in second part by including more context.
>It started out as a way to hold companies responsible for small amounts of harm that are spread out to many individuals. Is it worth it for any one individual to sue a company for a $5 product that purposefully misleads consumers? Is it okay for a company to take advantage of consumers in this way purely because they are unlikely to be called upon to account for their misbehavior? That's the reasoning behind a class action lawsuits. Allow many people to join together to act as a counterbalance to companies flaunting their relative position of power. Regulation is the other way to deal with this, but regulation often lags abuse, and why regulate specifically what is already against the law and just needs an enforcement mechanism?
Thanks for clarifying, I learned something new. I think ideally you would have as little regulation as possible and inspectors + fines for highly critical stuff, so courts and consumers will not have to deal with this at all.
Clicking on the perma-link to the comment in question will generally allow replying. It's a soft limitation.
> I think ideally you would have as little regulation as possible and inspectors + fines for highly critical stuff, so courts and consumers will not have to deal with this at all.
I agree that that as little regulation as possible would be better, simply because regulation generally seems to also create perverse incentives, so when you can incentivize the behavior you want without it you are probably better off. Unfortunately, fine and inspectors are regulation. They make sense in some areas (such as food and building inspection), but I don't think it's feasible to expect that to work for every type of problem, for every type of industry, when we don't even know everywhere they would be useful now, much less the future. So, we have class-actions as a fail-safe.
He should have cited the woman who spilled hot coffee on her. The legal precedent being set by the court was "if it's hot enough to hurt someone label it that way" and to do that they had to award punitive (you screwed up and we're punishing you) damages. If they just ordered the company to pay based on medical costs it would have basically said "this is your fault and you should pay for her medical care" but by awarding punitive damages the court was trying (and succeeded) to send a message about what is and is not acceptable.
Are you referring to the McDonalds hot coffee incident? That one is generally more interesting[1] than widely known or believed. The details may not change your opinion on whether the outcome was warranted, but they may change whether you think the case itself was worth having (from the details, I don't think it was frivolous).
> by awarding punitive damages the court was trying (and succeeded) to send a message about what is and is not acceptable.
The jury decides whether the lawsuit is warranted and how much to award. The court can alter this to try to make a statement (and in the case I referenced, the court reduced damages in each judgement).
That coffee wasn't just hot, it was well beyond expected temperature and gave her third degree burns as a result.
"Liebeck sought to settle with McDonald's for $20,000 to cover her actual and anticipated expenses. Her past medical expenses were $10,500; her anticipated future medical expenses were approximately $2,500; and her daughter's loss of income was approximately $5,000 for a total of approximately $18,000. Instead, the company offered only $800. When McDonald's refused to raise its offer, Liebeck retained Texas attorney Reed Morgan. Morgan filed suit in New Mexico District Court accusing McDonald's of "gross negligence" for selling coffee that was "unreasonably dangerous" and "defectively manufactured". McDonald's refused Morgan's offer to settle for $90,000. Morgan offered to settle for $300,000, and a mediator suggested $225,000 just before trial, but McDonald's refused these final pre-trial attempts to settle."
I'd expect it to be up to 100 celcius at sea level pressure, because it had just been boiled. If it's hotter than that it wouldn't be a liquid. How can less-than-boiling be 'well beyond' the expected temperature of just-made tea or coffee? Your accusation is totally absurd.
You are being too European. Not serving scalding-hot coffee is a very reasonable safety precaution. Not only can it cause third-degree burns, but it can cause severe damage to the inside of your mouth. Note that McDonalds was heating up its coffee to be higher a higher temperature than it would be straight from brewing (during which a lot of heat energy is lost).
Every coffee you've ever had in your life was a lower temperature than what McDonald's was serving up. They were serving super-heated coffee that is hotter and thus more dangerous than what you would make at home. A typical temperature for coffee is 75C -- that's the temperature it'll come out as from your standard automatic drip coffee maker. McDonald's was serving it at 95C, which required serious post-brewing heating to achieve. They admitted that this was wrong and stopped doing it, and to really drive that point home, no one else serves coffee that dangerously hot. You could burn a layer off your tongue in one ill-conceived first sip. The only reason you think this isn't a big deal is because you haven't been exposed to it.
The following quote from another response to your comment is instructive:
> Liebeck’s case was far from an isolated event. McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases.
And as for the temperature of instant coffee, feel free to use a thermometer and verify it for yourself. It will not be 95C. The temperature is reduced from pouring it into a room temperature cup and also from stirring a room temperature substance into it. And that's still a worst-case scenario; McDonald's coffee, which is not instant, should be less hot than that, not more.
When I make coffee at home, I can immediately take a sip of it within a few seconds of pouring it into a mug, without burning my mouth. If I accidentally poured such a mug all over myself I would likely not sustain extensive third degree burns. Coffee at Starbucks is served at a similar temperature -- it is certainly not kept super-heated at a level that will scald you if touched.
The thing I don't understand is, why are you so anti-safety? Why do you have such an averse reaction to solving a very basic safety problem? Products that you buy should not be pointlessly and unnecessarily unsafe in unexpected ways.
> The following quote from another response to your comment is instructive
> The thing I don't understand is, why are you so anti-safety? Why do you have such an averse reaction to solving a very basic safety problem?
You seem to have me confused with someone else. Check the username before you attribute a comment to me. I promise you that I'm only using the one account.
> When I make coffee at home, I can immediately take a sip of it within a few seconds of pouring it into a mug, without burning my mouth. If I accidentally poured such a mug all over myself I would likely not sustain extensive third degree burns.
I don't drink coffee. But when I make tea at home, I can almost immediately take a sip from a spoonful. I can't actually drink it from the mug because it is much too hot. If I poured it all over my lap and then sat in it until it cooled, I would be seriously injured, yes.
https://www.caoc.org/?pg=facts
"McDonald’s operations manual required the franchisee to hold its coffee at 180 to 190 degrees Fahrenheit.
Coffee at that temperature, if spilled, causes third-degree burns in three to seven seconds."
I also highly recommend watching this movie which was a very interesting look at the erosion of consumer rights driven by a coordinate corporate PR campaign/agenda:
http://www.hotcoffeethemovie.com/Default.asp
How do you know it's true? Many, many people routinely prepare coffee for themselves that is hotter than McDonald's provided. ballooney strongly suggests that he is one of those people. That would make the assertion false.
I've spilled boiling water on myself occasionally. Given the freedom of movement you generally have in your kitchen that you don't have while buckled in to a car, I hope it doesn't surprise you that I wash it off in less than three seconds. It's hot!
I've also touched hot cookie sheets and the like, which obviously go well above 212 fahrenheit. That's common; what's not common is maintaining the contact for longer than your flinch reflex takes to kick in.
> How do you know it's true? Many, many people routinely prepare coffee for themselves that is hotter than McDonald's provided.
Ok, I'm not exactly sure what we're really disputing here. To clarify, I was just agreeing with the sentiment of GP's claim that "every cup of coffee you've ever had in your life was at a lower temperature than what McDonald's was serving up". You're right that as a literal statement it is probably not true.
The real point is whether McDonald's coffee was being served at an unreasonably hot temperature. Based on what I saw in the movie, and read on the Consumer Attorney's of California website, and based on my experience with current/post-lawsuit McDonald's coffee temperatures (which I still find exceedingly hot), I find it entirely believable that the coffee was served at an unreasonably hot temperature.
More context:
> Mrs. Liebeck’s injuries were far from frivolous. She was wearing sweatpants that absorbed the coffee and kept it against her skin. She suffered third-degree burns (the most serious kind) and required skin grafts on her inner thighs and elsewhere.
Liebeck’s case was far from an isolated event. McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases.
Mrs. Liebeck offered to settle the case for $20,000 to cover her medical expenses and lost income. But McDonald’s never offered more than $800, so the case went to trial. The jury found Mrs. Liebeck to be partially at fault for her injuries, reducing the compensation for her injuries accordingly. But the jury’s punitive damages award made headlines — upset by McDonald’s unwillingness to correct a policy despite hundreds of people suffering injuries, they awarded Liebeck the equivalent of two days’ worth of revenue from coffee sales for the restaurant chain.
There is a widespread believe in Europe, that in the US, you can "dry" your cat in the microwave oven or "wash" it in the washing machine and then sue the manufacturer for billions, unless they specifically warned that this could kill the cat.
> Edit: Remembered one more: Juries deciding whether murderers are guilty or not. Simply unthinkable over here. Ironically the horror of this scenario is fuelled by the US/Hollywood itself.
Maybe not in Germany, but France has juries for murder case since 1810, actually, a jury is theoretically mandatory for any case where a sentence of more than 10 years in prison is possible. The accused cannot waive this "right" like in some cases in the US.
(in practice, because juries take a lot of court time, are shaky and difficult to manage, prosecutors often will prosecute a serious crime like a less serious similar one to avoid having to go in front of a jury (e.g. instead of prosecuting something as rape, do it as if it was sexual assault). The prosecutor must have the agreement of the victim and the accused to do it).
Also, it's not only France. Austria, Greece, Italy, Belgium and others have that sort of jury.
> Juries deciding whether murderers are guilty or not. Simply unthinkable over here.
Well, that might be unthinkable in Germany, but its clearly not in Europe as a whole, since we got that from a place in Europe that hasn't abandoned it in the time since their system migrated to North America.
>Well, that might be unthinkable in Germany, but its clearly not in Europe as a whole, since we got that from a place in Europe that hasn't abandoned it in the time since their system migrated to North America.
The UK is clearly an outlier. They also drive on the wrong side of the road and have a strange relationship to the metric system :D
There are 2 legal systems in Europe (and the world).
1) "US-style" English Common Law, applies in Great Britain (and former British Empire worldwide, like Australia, Canada, Kenia, ...). Biggest distinguishing features : right to a jury trial, precendents carry legal weight (judges have to follow earlier judgements when possible), opposing experts, ...
2) "French (Revolution) Law", sometimes named after Napoleon, applies essentially everywhere else. No right to jury trials (some courts have jury trials, most don't), precendents can be cited but carry no legal weight, experts are chosen by the court, ...
There are of course important legal differences outside of these high level differences.
juries are supposed to be juries of peers, to make sure that what one did is really a crime as considered by his peers. Lords judge lords, commoners judge commoners, clergy have its own justice system... For the same reason the jury should come from the vicinity of where things happened. With geographical mobility and everybody becoming a peer to everybody one can see how "jury of peers" got stretched so that a bunch of Texans from some faraway county would be deciding some tech patent case.
There are many arguments against it. I think the main cultural difference is that in general Americans distrust the state more than Europeans do, which is often a good thing. Though, I think with jury trials it fosters a bad system.
I am not a lawyer and there are good articles discussing the system, I think lawsuits can often be highly complex and should be handled by professionals, not amateurs. I believe if you look guilty you are better of with professionals, who I imagine are more likely to judge you based on facts instead of sympathy.
Wait, what's the alternative to juries deciding whether or not someone is guilty of murder? Having a single judge do it?
Seems to me that it's pretty damned important to be sure that someone is guilty before you lock them up for life. But that just might be my american bias showing through.
> Wait, what's the alternative to juries deciding whether or not someone is guilty of murder? Having a single judge do it?
A panel of 3 judges. Or properly randomly selected juries. The US system, with a mix of weirdly selected judges and bizarre jury selection seems to be sub-optimal.
> The US uses Juries because as a check on government power. The whole point is jury nullification not fact accuracy.
Nullification is not the whole point (but not insignificant), and factual accuracy is important -- but accountability to the citizenry at large (represented by a jury drawn from the citizenry, rather than professional government officers whose accountability to the public is distant at best) for that factual accuracy is just as important.
You do not have a right to forego criminal jury trial in the US. Even if you want to waive jury trial, you may not be allowed to avoid it -- e.g., in the federal system, both the prosecution and court must also agree in order for a trial to a bench trial rather than a jury trial.
Trial by jury showed up around then for land disputes. But, it was trial by ordeal that fell off not Judges in the 1200's. Also, we are talking ~500 years after the fact so there is a lot of back and forth involved.
The alternative is to use several professional judges. In Germany for example a murderer is judged by 3 professional judges and 2 semi-professional juryman.
In Germany noone can be convicted of murder (or any other grave crime) without at least one lay judge agreeing.
In the case of murder trials (three professional judges, two lay judges), you need four votes, because three would be less than the required two thirds.
You cannot compare German/Austrian Schöffen to an American amateur jury. They are semi-professionals appointed for 5 years, not random people doing a random case. And as you said, they form a panel with 3 professional judges and are not left alone in a room.
> Laws that say "forget the law, anything we think is unreasonable is illegal" are a growing problem in Europe.
I think you have an unsophisticated view of legal systems. Law consists of more than just what is written into the text of legislation. It is a historical practice done by people working in courts and in law enforcement. It interacts with the people as they serve on juries. Law is a living thing bound in tradition and culture.
But "unreasonable" means something closer to its literal meaning in U.S. law. It means a conclusion that a rational person would not reach. So "unreasonable" is a pretty strong safeguard. It's hard to reach an "unreasonable" conclusion about your legal obligations by accident.
In the criminal context, we also have the rule of leniety, which holds that ambiguities in criminal laws are resolved in favor of the defendant.
It's unusual to encounter a situation where the law is clear but someone is punished based on vague case law interpretation of the law. I rarely see a situation where I think "the Court just botched interpreting this statute." Almost always, it's "Congress or the agency botched writing this statute or regulation." And in a civil system it's much harder for the courts to fix such problems.
We do have a problem with laws that are themselves unclear, but the Supreme Court has done some weed cleaning in that area. For example, Jeffrey Skilling got a reduced sentence because the Supreme Court found that the honest services fraud statute was unconstitutionally vague unless limited to strict "bribery and kickbacks" theory. In the area of fraud on the government, courts have held that defendants can only be punished for making incorrect statements to the government (for e.g. Medicaire claims) if the falsity of their statements is based on an unreasonable and not merely incorrect interpretation of the underlying regulations.
We also generally have a strong separation between civil suits and criminal suits. People lament that not enough people go to prison in the white collar world, but in my opinion it's a good thing we're not sending people to prison for misunderstanding Treasury or Fed regulations.
> It means a conclusion that a rational person would not reach. So "unreasonable" is a pretty strong safeguard.
This is all nice in theory, but in practice, it's happened multiple times that the (Supreme Court's) interpretation of the same law has changed. Granted, this has happened over decades (or even generations), but this implies that (1) either the definition of what is "reasonable" has changed (I find this unlikely, or else the concept itself has little sense), or (2) there is more wiggle room when interpreting laws...
Judges are not infallible, and they are not isolated from the zeitgeist of their time. See Schenck v. United States, where the original ruling was overly broad and later refined.
"Reasonable" just means that a conclusion follows logically from a set of accepted premises. That those premises may change over time does not render the concept of "reasonable" nonsensical, it just makes "reasonableness" a function of society's generally-accepted premises. That seems to me like a desirable property of legal systems, not an undesirable one.
It's both a little more subtle than that and exactly that simple. You can't legislate "right and wrong" (although we try), but that doesn't mean they can't be defined by and imposed by a society. (the sanctions will generally be different from what the state could impose)
For the amount of love Hayek gets in these circles, I'm surprised there isn't more focus on Law, Legislation and Liberty
Yup. A lot of people, not limited but often expressed in the tech rule, seem to think that laws are strict-matching constructs. But laws are intended to be fuzzily matched, and the judiciary exists to do that fuzzy matching.
Not exactly. The degree to which judges should be allowed to creatively interpret laws is a controversial issue that has long split down left/right lines.
I mean that's basically the entire cause of the split in the Supreme Court between strict literalists and those who believe in a living constitution.
Obviously judges have to apply some degree of common sense because English is inherently vague, but the amount that they do it can still trigger political bun fights.
Not exactly. You have to look no further than the right's cherished paragon of literalism Antonin Scalia to see a judge contorting himself into knots to try to present his interpretive opinion on the law and meaning of the text as though it was clearly spelled out in either. There are no literalists, especially when their pet political ideals are threatened in some way. If you think the split is literalist/interpretive then you have not been paying attention.
To be fair, it is harder for us to notice that interpretations are creative when they lead to the conclusions that we thought were obvious.
Take, for instance, the establishment in Heller of the right to bear arms as an individual right. Most conservatives believed that to be the case all along, and think it is clear from the wording. However liberal observers were more likely to notice that this interpretation had not appeared in 2 centuries of jurisprudence, and societies of professional historians had long reached the opposite conclusion about original intent.
For another, look at Citizens United which established that corporations had a right to free speech, and therefore could not be restricted from spending on political speech. Conservatives saw this as a straightforward issue of, "I have no actual freedom of speech if I cannot spend money to broadcast it." Liberals noted that this overturned several previous precedents, and the Constitution had never intended corporations to be considered people.
In these and other cases, conservatives don't recognize the creativity of interpretation because the result seems natural and right to them. Liberals do notice.
The same is true going the other way. But liberals do not object to noticing that they have been creative, so are less likely to fail to notice when they have been.
You don't have to but you can; and apparently it's good politics too. Google made a big deal of its new office space in the center of Paris when they opened two years ago.
Edit: of course, the right for an Irish company to do business anywhere in Europe is also one that can be abused. Separate companies are not needed for rights to be abused and offices to be raided.
Actually, an EU company can employ workers in other EU member states without local subsidiaries, but will need to register with the government of the country where the employment will take place; the actual process varies by member state, e.g. in the UK the employer would have to register with HMRC and set up PAYE.
Unlike the US, countries in the EU do not appear to be able to compete by offering favorable conditions to corporations and this especially concerns taxes.
which is a big design fault that hampers the EU especially as nations facing debt problems will use it to shore their finances up which keeps up and coming countries from doing that, being up and coming.
Unfortunately this is not true anymore. With the raise of US/UK style neoliberalism various states like Luxembourg, Slovakia, Lichtenstein, Germany, Austria, Ireland ... try to outcompete each other in offering less taxes, less union influence, less labor costs for more jobs and companies regularly blackmail the EU states for more favorable conditions.
E.g. Germany can only hold its current EU stronghold by outcompeting France with much lower labor costs.
In America, there's at least one clear example of this - laws against "structuring". Basically, they say that it's criminal to arrange financial transactions with the purpose of avoiding laws about financial transactions.
As an example, banks are required to report all deposits of $20,000. It's a right to deposit $19,999 into a bank account, nothing wrong there. But to deposit $19,999 five times in a row, rather than than $100,000 all at once? That's structuring, and it's illegal.
I'm not aware of a general "law against circumventing laws" but there are certainly specific ones banning classes of behavior that exist to avoid other regulations.
It's $10,000 and that's what led to former Speaker of the House Dennis Hastert being investigated regarding his payments of hush money. He was actively trying to circumvent the controls. That's against the law. Just a clarification, having taken anti-money laundering compliance courses on occasion.
Structuring laws are highly controversial and have caused huge amounts of pain for innocent people who were just legitimately trying to reduce their paperwork burden. They're bad laws.
Yeah, I don't mean to endorse them, especially not as-written. Any time you make laws like "it is illegal to circumvent the law" you're inviting exponential amounts of red tape. Add that to laws that were already high-burden on small businesses, and it's a recipe for real trouble (made even worse by the fact that a remarkable amount of banking still isn't digital).
I know that the specific case I mentioned has been fairly useful in fighting money laundering and large-scale drug-dealing, though. There's something to be said for making it hard to move large amounts of money through banks without being observed, but as always there's no good way to do that without interfering with legitimate commerce.
The example he gives is of someone clearly trying to evade the reporting requirements. People get caught up in these laws even when they don't intend to avoid them by virtue of doing business in cash with daily deposits just under the reporting limit[1].
Reduce the impact of the reporting. Many of the stories I read had a component of "big weekly deposits took a long time because someone would have to fill out a report" or "banks closed my account because they didn't want to fill out the reports" which lead people to do more frequent deposits or split their banking between multiple banks or pay expenses in cash. I don't think the amount triggering reporting is linked to inflation either.
I don't know what's on the form, but of you fill out once a week, there should be a way to be quick about it.
Does this raise all sorts of issues related to the Sorites Paradox and induction?
"It's illegal to break the transaction into pieces of size n-1 to circumvent the law against n sized pieces. And so it's illegal to break it into n-2 sized pieces to circumvent the circumvention of breaking into n sized pieces. And so it's illegal to ..."
Pretty much, yes. I think that's what drove the decision to write a law criminalizing "attempts to avoid" rather than anything specific, but it doesn't actually avoid the paradox. It's a bit of a hazy crime, and one that should be probably only be pursued when there's outside evidence of guilt.
As far as I know, the floor is defined by either "this would be too inconvenient even for money launderers" or "the false positive rate is too high to pursue this more strictly".
Who says they don't have activities in Ireland? A lot of Google's employees are actually based in Ireland.
> Just because you can do something "in general", you can't do it with the specific purpose of circumventing another legal obligation.
Most countries have laws that say you can't do something JUST for tax purposes. You can, however, structure things in a tax friendly way, if there's a commercial motive to do so.
^^^ exactly that. The rule is generally that your "principal purpose" can't be to avoid taxes (in this case). There is also the "economic substance doctrine" which actually codifies the above principle. Basically, you have to have a non-tax reason to do something -- even if the tax reasons are ridiculously great.
There are certain things where you are allowed to write into the IRS and get a Private Letter Ruling. "Business Purpose" is not one of them.
If that's not sufficient substance then I don't know what is. Yes, obviously they structured it like that intentionally and Ireland is happy with them being there. But it seems reasonable for a structure like that to fall within the scope of the law.
Knowing whether something is illegal ahead of time, and the rejection of retroactive judgment and thus capricious power were supposed to be innovations of western law. But the reality is that government does what government wants, and justifies it post-fact.
Honestly, I think "abus de droit" is a very interesting concept. I'm partial to liking it but I'm curious what the downsides are.
Sure, some will say that it creates too much of a gray area, but that's life. Sorry. I think there's a lot more "effective" ambiguity when everyone is trying to dodge the spirit of the law and exploit loopholes. It creates chaos that lobbyists, consultants, and others can exploit.
Focusing on enforcing the spirit of the law may lead to some abuses, but those abuses have to be weighed against the massive, systemic, abuses that occur when people violate the spirit of the law.
This is not just a problem with tax law, but any law. The problem with the spirit of the law is that it means different things to different people. Both intent (and morality!) differs greatly between various people. Hence we stick to the letter of the law. A simple example:
- Let's say one can do A, B, C and D. They all represent similar situations.
- For some reason, the government wants to block the above.
- They create a new law, blocking A, B and C. They forgot D.
Now, they might have wanted to block D as well. But how do you know? What if D gives you a significant advantage over competitors?
One thing I've noticed, hanging out with lawyers, is that governments often make a lot of half assed laws. Closing the "loopholes" isn't hard - it just takes time + requires proper work. Also, don't forget, some loopholes are there by design.
Intent is a huge concept in english law too. As an example, 'good samaritan laws' are an incredibly new concept in the UK (eg, the last 12 months). It was eventually enacted not because it's ever been needed - it has never, not once, been needed - but so that people don't have to hesitate to act.
Honest intent may defend an action which would otherwise be illegal. Or you can skirt the edges with malintent and be found for it. Carrying a knife may be legal with demonstrable reason. Carrying a screwdriver may be illegal with malintent. And we trust the courts to spot the difference. And in general, they do.
America, however, has been raised on "a healthy distrust of government". They simply don't trust, or don't want to trust the courts to straddle such grey lines. They want nice solid black & white line so they can point to the law instead of the courts - and they want to see "the people" (juries) police the gray lines.
Personally, I think there's merits to both systems. But it's clear to see that both are very culturally ingrained. I think it's actually very difficult for either side to see the other clearly.
This seems like an intended grey area that just allows the government to go after whoever they feel like while not being required to go after other businesses.
For example, as an Irish company, you can open a subsidiary in France to do business in France. That's a right.
But if you're doing business in France essentially, you can't make the French company a subsidiary of an Irish one that doesn't have any other activity, in the sole purpose of evading French taxes. That would be abusing the right (of opening subsidiaries). It may conform to the letter of the law but not to its spirit, and can be punished.
Of course, this is all a very grey area and up to the judge to evaluate (and my explanation perhaps lacks clarity); but it's real nonetheless!