Wikipedia:Reference desk/Archives/Humanities/2011 November 30

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November 30

Multi-state small claims

I'm sure this is clear in a legal sense since it has taken place since the old days of mail order catalogs. But I can't find the answer. Suppose a guy in the United States buys something from a company in another state. The product is shipped to yet another state. For some reason, the guy wants to sue the company in small claims court. Does he do it in his state, the company's state, or the recipient's state? I'm trying to make an example and I don't want to get side-tracked by some anal retentive lawyer in the crowd. -- kainaw™ 11:59, 30 November 2011 (UTC)

The articles Choice of law, Conflict of laws in the United States, and Lex loci delicti commissi seem to be relevant to your problem. --Jayron32 13:58, 30 November 2011 (UTC)

Thanks. It appears that if it is all within the U.S., the case can be taken to any of the courts and it is up to the judge to decide which laws apply. That satisfies my needs as I don't have to state that any particular state is the necessary one to use. But, it makes me wonder: What if I were to sue some company in another state. They won't send someone to my state to represent themselves. I don't want to drive to their state to represent myself. So, there must me something about out-of-state representation as well. I think I have a lead on that. I remember an article about a guy suing Bank of America and they didn't send anyone to represent themselves. So, I can look that up. -- kainaw™ 14:09, 30 November 2011 (UTC)

Lex loci delicti commissi is not relevant as this is a contracts issue not a torts issue. More relevant would be lex loci contractus, but we aren't even getting there yet. As the anal retentive lawyer in the crowd, I would object to your use of the topics of conflict of laws. Your question has to do with the two primary issues before we choose the law to apply: jurisdiction and venue. Unfortunately, the wikipedia article on jurisdiction isn't very good. The choice of forum is normally the choice of plaintiff, see Carnival Cruise Lines, Inc. v. Shute. However, a plaintiff cannot sue in just any old state. There must be sufficient minimum contacts such that the exercise of jurisdiction over the defendant will not offend traditional notions of fair play and substantial justice. This is a meaningless phrase invented by the Supreme Court and recited by lawyers across the country to justify our salaries. It comes from a very old and "important case" involving shoes: International Shoe v. Washington (1945). It is a violation of due process for a court to exercise jurisdiction when it lacks the power to do so. In your example, the plaintiff will decide a particular forum to sue in based on the laws there. Maybe one of the states has a cap on damages or another has juries that love to give people money for spilling coffee on themselves? When the plaintiff sues, the court asks itself, "Does the defendant have enough contacts with the state?" If the answer is yes, the court goes onto the next question: venue. Venue is a bit different and has to do with the ancient concept of forum non conveniens. While a court may have the ability to adjudicate the case, it may decline to do so with a preference given to a different forum. Determining factors will be the convenience of the parties, the distance witnesses will have to travel. Your company could be located in Virginia, but all the witnesses are located in Pennsylvania and that is where the contract was signed. Sure you can sue in Virginia as that is where the company is located, but the defendant might ask for a change of venue to Pennsylvania. Venue is somewhat of a choice between the parties. All the witnesses could be in Alaska, but if everyone wants to hear it in the home state of Virginia, that's up to them. Of course jurisdiction is not up to the parties at all. If the case is brought in Alabama and no one has anything to do with the state, Alabama won't hear the case even if everyone wants it to be heard there. Gx872op (talk) 20:55, 30 November 2011 (UTC)

Naive question: isn't the jurisdiction already determined in that ToS that nobody reads?Quest09 (talk) 01:45, 1 December 2011 (UTC)

Generally yes, but most sales contracts are not in writing. If you have a forum selection clause on the back of your receipt, there is a very strong argument that it won't be enforceable. Gx872op (talk) 17:07, 1 December 2011 (UTC)

Naive question II: but many sales are online sales, where the ToS is at least accessible somewhere, wouldn't that be legally binding? Quest09 (talk) 21:32, 1 December 2011 (UTC)

Not always. If you look at Amazon's agreement, for example. There are a number of restrictions there. Interestingly, they have a carve out for small claims courts. A user agrees to apply Washington law, not to seek class action status and to seek arbitration. An internet search for "classaction" and "Amazon" will yield several examples of class action suits, filed in a court of law rather than in an arbitration proceeding, and applying laws other than those of Washington. Generally a court will assume such an agreement is valid, but it is subject to attack. A general breach of contract claim would likely find itself bound by the agreement. When you get to other types of claims, involving other rights, states will find these clauses invalid. Strong deference is given in most cases however. Gx872op (talk) 18:37, 2 December 2011 (UTC)

Fundamentally it's a jurisdiction question. Gx872op is right but sort of ambiguous about conflating that with venue. In the U.S., from a Constitutional perspective, it's a jurisdiction question. Then, it's a statutory question. That depends on the statute of the particular state. In some states (I'm not sure how common it is) small claims courts may be limited to disputes between in-state residents, and other restrictions. Without getting into choice of law, or specific small claims statutes, or anything else, the fundamental question I think you're interested in is minimum contacts and a whole line of personal jurisdiction cases that start with Pennoyer v. Neff and continue to the present day. International Shoe is not the last in that line of cases either. As a practical matter, minimum contacts is a low standard, but our article probably provides the necessary detail. Shadowjams (talk) 08:57, 2 December 2011 (UTC)

International Shoe overruled Pennoyer v. Neff; it isn't good law anymore,

Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."

I'm not certain what you mean by "statutory question." That wasn't on the bar exam. Small claims courts do not limit their jurisdiction to "between in-state residents" and "other restrictions." The only restriction is the amount of the claim. Indeed, it would be a violation of due process for a court to deny a claim based on the residency of the claimant. It is jurisdiction over the defendant which matters, not jurisdiction over the plaintiff. It's rather nonsensical to declare the issue to be jurisdiction, then state that any discussion of venue is conflating the issue with it. Half of all US Corporations can be sued in Delaware. Delaware has jurisdiction over the corporation, but it can't be said that that is the proper venue for half of all lawsuits against corporations in the United States. Do not conflate venue with jurisdiction. The issue here is venue. Gx872op (talk) 18:37, 2 December 2011 (UTC)

I think you misinterpreted a lot in my response. I was only saying that you were being ambiguous about the difference between jurisdiction and venue, not that you yourself don't understand it.

I never suggested Pennoyer is the law today. International Shoe isn't the last word either for that matter. Third, in what state does the bar exam not ask any questions about statutory law? All of your discussion about venue is exclusively statutory law. That's on the bar exam.

Small claims courts have all sorts of jurisdictional restrictions, again by statute. And actually some states, as I said, do limit it to in state defendants, and "other restrictions." Perhaps I was unclear in saying between in-state residents. I'm not sure if that exact arrangement exists. Nevada's a good example: NRS 73.010 "In all cases...where...the defendant named: Is a resident of; Does business in; or Is employed in, the township in which the action is to be maintained..." I'd be curious to hear your discussion of that due process claim.

Finally, there's nothing nonsensical about what I've said. I never declare that "any discussion of venue is conflating the issue." The fundamental answer to the OP is "probably any of them" and the way to get there is through minimum contacts which is a jurisdiction question. Shadowjams (talk) 23:07, 2 December 2011 (UTC)

It appears that we misunderstood each other. As for a due process claim: assume a federal claim under the Telephone Consumer Protection Act of 1991 brought in a Nevada Justice Court against a Connecticut debt consolidation company seeking the plaintiff's business. The call involved six automated "robo calls" to plaintiff's cell phone. Plaintiff brings the action seeking $3,000 in statutory damages pursuant to the Act. Defendant caller moves to remove to federal court about 100 miles away from plaintiff based on federal question and lack of subject matter jurisdiction. Local Justice Court grants the motion. Plaintiff moves federal court to remand the case and brings a seperate collateral attack in Nevada Superior Court. The argument goes like this: The Justice Court has subject matter jurisdiction over the matter and personal jurisdiction based on Nevada's Long Arm Statute. Congress intended federal claims under the TCPA be handled in local small claims courts. When the Justice Court declined to exercise jurisdiction over the case and when Nevada law provides that it had jurisdiction, Plaintiff's Due Process right to hearing were violated, see Mathews v. Eldridge. NRS 66.010 provides that "Actions in justice courts must be commenced, and, subject to the right to change the place of trial as provided in this chapter, must be tried... 6.When the defendant is a nonresident of the State, in any township in the State." (emphasis added). This obligation for Justice Courts to hear a case is a state granted statutory right, and denial of that right violates a due process right to a hearing and to be heard. The respondent in a pending Supreme Court case is currently arguing that state courts have exclusive jurisdiction for a federal claim brought under the TCPA in, Mims v. Arrow Financial Services LLC[1]. Chief Justice Roberts during oral argument seemed to favor small claims courts hearing these claims because of the low cost to a plaintiff and the small amount in controversy. Gx872op (talk) 17:26, 5 December 2011 (UTC)

Countries treating minorities with equality

What are some countries that treat relatively small minorities with good equality?--78.128.205.47 (talk) 13:02, 30 November 2011 (UTC)

Most Western countries, in theory any country signing up to the Universal Declaration of Human Rights. -- Q Chris (talk) 13:14, 30 November 2011 (UTC)

The problem with that basic idea is that a government can write anything they want into their laws. It doesn't mean that a) they enforce it or b) that the people who live in that country abide by their laws. If people are treated well has little to do with what text is written into some law passed by some legislature. --Jayron32 13:54, 30 November 2011 (UTC)

That's a very non-specific question from our OP. I wonder which minority (or minorities) and which government(s) he/she had in mind as starting points for comparison. If a minority is small enough, it will hardly be noticed, so not suffer discrimination. If it's not very different, the same would apply. It's all very vague. HiLo48 (talk) 15:25, 30 November 2011 (UTC)

Jayron's point does not include European countries which have the European Court of Human Rights that citizens can resort to if all else fails. Alansplodge (talk) 15:51, 30 November 2011 (UTC)

I don't think the "if all else fails" is a minor hurdle to overcome. Kittybrewster ☎ 15:58, 30 November 2011 (UTC)

I think it might be helpful if we distinguish between "legal equality" and "societal equality". There are lots and lots of countries that have laws against discrimination (and legally treat all citizens, including minorities, as equal under law)... many of those same countries have issues with societal bigotry and prejudice (despite the laws). Blueboar (talk) 16:24, 30 November 2011 (UTC)

There are also laws that exceed legal equality by giving legal benefits to minorities that the majority does not have. -- kainaw™ 16:27, 30 November 2011 (UTC)

--Viennese Waltz 16:31, 30 November 2011 (UTC)

See affirmative action. It covers issues such as quotas and inequality - much of which has been reversed. -- kainaw™ 16:45, 30 November 2011 (UTC)

As Blueboar points out, legal equality does not equal social equality, and countries that offer legal benefits exclusive to minorities generally do so to counter pervasive extralegal discrimination. For the latter, you really have to look outside of Europe, where racial and ethnic prejudice are widespread (despite the laws). I have yet to visit a European country where most indigenous people did not view migrants from other parts of the world with a mixture of disgust and titillation. Perhaps someplace like Finland is an exception. One of the best countries I know in this regard is Canada. Marco polo (talk) 16:33, 30 November 2011 (UTC)

That is certainly not true in respect of the UK, where most people treat most ethnic minorities no differently than they treat anyone else. --Viennese Waltz 16:37, 30 November 2011 (UTC)

On consideration, I've decided to strike through most of my comment, which is based too heavily on anecdote and for which I am having trouble finding a citation. I would have simply deleted it, but then Viennese Waltz's comment wouldn't have made sense. Marco polo (talk) 16:54, 30 November 2011 (UTC)

Is it even true for Canada that most people treat immigrants with disgust and titillation? I'm Canadian, but also an immigrant who came here as a child, so I don't know what the majority of adult white Canadians think. On the surface, I get the impression that most of the population (including children and teenagers) embrace diversity as something positive that helps strengthen the Canadian nation. Many people do have concerns about immigrants rejecting the values of the country--especially religious tolerance and LGBT rights--but that's more a rejection of those values and not of immigrants themselves. --140.180.15.97 (talk) 17:30, 30 November 2011 (UTC)

The kind of people who are worried about immigrants rejecting "the values of the country" are usually the kind of people who themselves reject religious tolerance and LGBT rights, at least in Canada (and probably the US). Then we get all sorts of moral panics about Muslim immigrants imposing Sharia law and other such nonsense. I guess I can't speak for the majority of adult white Canadians, and some of them do believe immigrants come either to take over jobs or abuse the welfare system (or somehow both at the same time), but I would say the majority of Canadians have no problem with immigrants. Adam Bishop (talk) 17:41, 30 November 2011 (UTC)

I would suggest that MP's original comment was too strong but I think they had a point that it's fairly common that in many European countries immigrants or more likely any non-white people do face some level of discrimination at a variety of levels from a fair percentage of the population. I suspect often the people themselves may be unconcious that they are doing. E.g. would the person react the same if they saw someone no white or someone they perceived as an 'foreigner' doing something then someone who was white or that they perceived as a 'local'? I would suggest evidence suggests often people do not do so, sometimes subtle enough that it's hard to see. There have been a number of studies in countries like France [2], the UK [3], Germany [4], and Canada [5] which have shown having a foreign sounding name reduces your chance of getting called up for an interview. I think the level found in these tests are generally enough to make it unlikely it's just a small minority of people viewing the CVs doing this (it could still be a minority). In France it seems they were evidentally even considering requiring anonymous CVs at one stage because of this. It would be nice to think it's only those in human resources or bosses who are doing this, but I suspect that's unlikely. I'm not saying European countries are unique in this, in fact the situation is often worse in Asian and I expect African countries. Nil Einne (talk) 04:06, 1 December 2011 (UTC)

Here is a link to a study showing that immigrants face different hurdles in different countries. Of course, not all minorities are immigrants. Marco polo (talk) 16:59, 30 November 2011 (UTC)

I think you really need to be more specific about what you mean by 'minorities' and 'good equality'. There are plenty of examples of minority groups that have never really been discriminated against (say, blue-eyed people in regions with significant numbers of them, as far as I know), and there are also countries where a minority group has more rights than everyone else - some totalitarian governments are dominated by a particular ethnic minority and tend to respond to the needs of that ethnic group more than those of others. The level of discrimination directed against a given minority group - and indeed whether it is in the minority - can also vary wildly within a country. 81.98.43.107 (talk) 23:55, 30 November 2011 (UTC)

Here we run into the difficulty of having two incompatible definitions of "minority". You are using the traditional "any group composing less than 50% of the population" definition, while I suspect the OP is using the newer "any group traditionally discriminated against in a given nation" def. For example, women aren't a minority by the first def, but are by the second. StuRat (talk) 04:36, 1 December 2011 (UTC)

And by that definition everybody will be in some minority. We have to go by the "obvious difference" or else train-spotters, Wikipedia editors and even drivers of Ford cars would be minorities. -- Q Chris (talk) 09:17, 1 December 2011 (UTC)

But if we consider a minority as a group 'traditionally discriminated against' - then they are discriminated against by definition. Unless we are talking about cases in which groups were discriminated against in a country until recently but not any more - but that seems a poor standard to judge tolerance by. The question just seems unanswerable in its current form: we need to know which minorities the OP cares about and what forms of equality they consider important. 81.98.43.107 (talk) 12:41, 1 December 2011 (UTC)

The whole point of kyriarchy is that each person can have some ways in which the belong to the 'majority' and some ways in which they belong to a 'minority' (in the discriminated against sense, or appear to be a minority if you watch TV and films sense, not in the hat-wearers-are-a-minority-because-most-people-don't-wear-hats sense), and so most people probably do belong to a minority. After all, if women are roughly 50% of the population and are a minority, then you only need some men to belong to a minority for it to be apparent that most people experience being in a minority group. But when (for example) a black man and a white woman interact, the white woman is a majority in terms of race, and the black man is a majority in terms of gender, and you can get interesting intersections of these different privileges. 86.164.60.202 (talk) 12:34, 1 December 2011 (UTC)

One of my personal fields of interest is language minorities and even among the most developed Western countries there are hardly any examples where countries support their minorities to a point where the long-term survival of the minority language is secured. For small languages it's apparently good to have some language-struggle between bigger languages going on. The French-Flemish conflict in Belgium helped the small German minority. The fact that Switzerland is divided between the bigger languages German, French and Italian has helped Rumantsch. But if the country has one solid majority like German in Germany or French in France, then they don't care much about their minorities. If the minorities do not protest, the governments will do nothing until the language minority goes extinct. If they do protest, the governments will sign papers recognizing the minority without actually doing anything. If the minority protests angrily, the government declares them secessionist terrorists. --::Slomox:: >< 21:54, 1 December 2011 (UTC)

By way of contrary example, the use of Swedish in Finland (spoken by 6% of the population) is highly protected and the study of Swedish is compulsory in schools. Orange Suede Sofa (talk) 03:08, 2 December 2011 (UTC)

Why should a government support a minority language's long-term survival? Such a support will cost a lot of tax money for negligible advantages. Minority languages simply fade away naturally as the minority sees no advantage in preserving it. Languages die out all the time (always did) and I sincerely fail to see the big problem as long as this process is peaceful and without the meddling of politicians. If the minority truly wishes to keep the language, fine by me, let them teach the language to their children without the resource of common tax money. Flamarande (talk) 14:24, 2 December 2011 (UTC) PS: I think that your analyses of Germany is flawed: Sorbian languages officially recognized and protected as minority languages. Flamarande (talk) 14:24, 2 December 2011 (UTC)

At least in the case of Finland, Swedish is seen as part of Finland's cultural heritage. The Swedish-speaking minority also has traditionally enjoyed disproportionate political influence within Finland. This does breed some resentment: not so much that tax money is being used for compulsory Swedish education, but that mandatory Swedish instruction takes away time and resources from opportunities for students to learn languages of more immediate practical value. For more background, we have a fairly substantial article on this topic. Orange Suede Sofa (talk) 21:03, 2 December 2011 (UTC)

@Flamarande: Sorbian is "recognized" and "protected", but what is that worth if it is not backed by actual supportive action?

Minorities are usually not exempt from tax-paying. Their tax money is then put into a system that supports the majority language. For example public schools that conduct lessons in the majority language.

Yes, it happens that minorities see no advantage in preserving their language and abandon it. But this only happens if the language is suppressed by a majority. If there were schools, universities, media, government services etc. in the minority language (funded by the tax money of the minority) and if the majority language wouldn't be forced upon the members of the minority, why would anybody willingly choose to abandon their mother language?

Sorbian once had several times as much speakers as Icelandic. Icelandic still thrives, while Sorbian is on the brink of extinction. The different fates of Sorbian and Icelandic weren't determined by the free will of the speakers, but by the attitudes of their rulers. Iceland largely ruled itself, while the Sorbians were ruled by Germans who had an interest to destroy Sorbian culture. --::Slomox:: >< 22:31, 4 December 2011 (UTC)

How does CVS ExtraBucks work?

CVS stores, in the USA, offer "ExtraBucks", which are like rebates for certain purchases in the form of in-store coupons that can be used in any CVS store. So for example this week there's a contact lense solution on sale at $9 and which gives a $9 ExtraBucks coupon. What if I use it at a different CVS store? Does the original store still have to pay for the promotion? Does CVS Corp. ever chip in? Thanks. Imagine Reason (talk) 20:58, 30 November 2011 (UTC)

My wife does this stuff all the time. The Extra Care bucks are good at any CVS, not just the store where they were purchased. I'm not sure how the accounting works, but I also believe that you are assuming that CVS stores are independently owned, like a restaurant franchise or soda distributorship. I believe that CVS stores are actually all owned by CVS, which would eliminate lots of the complications you note. --Jayron32 21:05, 30 November 2011 (UTC)

I assume that individual stores are evaluated based on revenue/profit, and there would have to be some sort of accounting there. Imagine Reason (talk) 23:42, 1 December 2011 (UTC)

New France prior to 1663

The article New France says that there was no royal control over that colony until 1663. By that time there were several permanent cities of non-Aboriginal people in New France. Who was head of state of those colonies between their founding and 1663? Were they legally not attached to any crown or state? — Preceding unsigned comment added by 142.244.174.130 (talk) 22:22, 30 November 2011 (UTC)

Before royal control was officially established, it was sort of a French ecclesiastical-commercial colony (or a group of colonies, really). The first attempts at settlement in the 16th century and early 17th century didn't last very long, but the church and some sort of merchant corporation were always present. These colonies were governed by the Lieutenant General of New France, although I don't think any of them ever actually went to New France. There were hardly any colonists there at that point though, maybe a few hundred in Quebec and a few dozen in Montreal. In 1627 Cardinal Richelieu founded the Company of One Hundred Associates, and set himself up as Governor of New France, although Samuel de Champlain was the first governor who actually lived there. The Lieutenant General and the Governor had subordinates in each colony (the governors of Trois-Rivières, of Montreal, of Acadia, and later of Newfoundland). Ecclesiastically, the Bishop of Quebec wasn't established until 1658, but before that, there were Recollet and Jesuit missions, and various other religious groups. They were legally attached to France, economically, politically, ecclesiastically, and militarily, but not under direct royal control until 1663, when the Sovereign Council of New France was created. The council was led by the Intendant of New France, but confusingly (even at the time) the position of governor became the Governor General of New France, and the other colonies (now administered by the council essentially as one large colony) still had their own governors. The difference now was that they were all appointed directly by the king. Still, there weren't many people there. According to the 1666 census there were only about 3000 people in all of New France. Adam Bishop (talk) 23:11, 30 November 2011 (UTC)

Adam does an excellent analysis of the situation in New France. A large bulk of those 3000 were fur traders and clergy spread over a large area, and there were no urban areas; a few trading posts and garrisons to protect them. Not much else. The French were not a major presence in North America in the middle 17th century. By comparison, during the Great Migration, something like 20,000 English had moved to Massachusetts and the surrounding environs during about a decade or two in the 1630s-1640s. By that 1666 date you note above, Boston was alread a bustling port. New France had no settlements that could even compare to it.--Jayron32 05:05, 1 December 2011 (UTC)