x*********6
发帖数: 3610 | 1 One employer shall have a certain degree of discretion with respect to its
employment policies. While the legal system confers plenary power on the
employer to draft the same, it also confers incidental power over actions
reasonably connected to it. In this case, Facebook went beyond any true
conception of what is incidental to a legitimate policy-making power.
Disagreement exists because different judicial minds see the boundaries of
such power differently located.
The legal "proportionality" refers to the idea that there should be a
reasonable relationship or balance between an end and the means used to
achieve that end. Thus, an inquiry into the proportionality of a policy
involves a value judgment into its reasonableness and appropriateness - the
court may have to inquire into whether the policy goes further than is
necessary to achieve that purpose. The essence of the concept is captured in
the maxim, "one should not use a sledgehammer to crack a nut".
In the context of taking preventive measures against spying activities,
Facebook drafted its policies as to permit its employees in bringing in
personnels from their social circle, while making the employees solely
responsible for those personnels' activities on the premises of Facebook.
Despite its practical impossibility and moral inappropriateness for the
employee to act as a guard dog against their friends, a highly educated
software engineer's social circle would likely involve other software
engineers with similar backgrounds, which of those are also the most likely
and capable spies. While normal people place a different degree of trust by
drawing a distinction between a "close personnel" and a "mere acquaintance",
the same logic fails in context.
The next point to follow is that one is not liable for another's intentional
wrong, simply because it is beyond one's ability to control. Taking the
legal term "vicarious liability" as an illustration: during the normal
course of business, a shop owner may be held vicariously liable for its
fellow worker's negligence when inputting an excessive dollar figure;
however, he will not be held liable at all, if the fellow worker committed
murder within the shop. Whether to commit that murder in the shop or out on
the street is solely of the worker's own plan. Similarly, whether a Facebook
employee's friend is stepping in with the malicious intent of conducting
spying activities, is completely beyond the employee's control. The degree
of closeness of their relationship again has minimal, if not no bearing, on
the possibility of the second fact. The only way to completely blocking away
an employee's all spying friends is to completely block away an employee's
all friends.
When the court inquires into the purpose behind a policy, it does not look
at the actual extrinsic motives and intentions of the drafting authorities,
but at the purpose as evinced from the face of the instrument in question,
the facts to which it applies and the circumstances which called it forth.
Thus, such a "suitability" inquiry essentially involves a judgment on
whether a policy will achieve its objective purpose, rather than a judgment
of the actual desirability of the policy. Then it comes to the second level,
"necessity", which involves an inquiry into whether there are other, less
extreme, means available for achieving the same end. An order for Facebook
to modify its employment policy is now being sought together.
Thirdly, in determining whether that requirement of reasonable
proportionality is satisfied, it is material to ascertain whether, and to
what extent, the policy goes beyond necessity and causes adverse
consequences unrelated to the achievement of that object. In particular, it
is material to ascertain whether those adverse consequences result in any
infringement of fundamental values traditionally protected by the common law
, such as being innocent until proven guilty, and the right to social
security.
As in this case, the alleged moral transgression is extremely grave, where
evidence of that transgression is particularly less cogent, and where the
moral transgression is closely analogous to, but has not for some technical
reason amounted to, legal transgression; there is a strong argument that the
need of society to protect an individual from lynching outweighs the public
interest in seeing the transgressor called to account.
I now impose on Facebook the following questions: has it fulfilled its duty
of listening fairly to both sides, including a duty to allow a party an
opportunity to fully present its case? Has it ensured that the parties know
the case they have to meet, therefore giving them an opportunity to
contradict or respond to the other party’s evidence?
If the decision-maker acts alone to take evidence, or to hear an argument of
one party without the presence of the other party, there is a danger that
he may adopt the evidence or the argument without offering the other party
an opportunity to even acquire knowledge of the fact that it was made,
therefore depriving him totally any chance to meet his case, or to cross-
examine the opposing party’s witnesses, or the like.
The Latin phrasing of the principle captures the essence of this duty: "nemo
judex in causa propria sua debet esse", which means that no one ought to be
a judge in his or her own cause.
Your honor, I seek for my client restitutionary damages in tort and
injunctive relief under equity.
***********************
Disclaimer: Fiction Only. No Legal Advice Intended. | x*********6
发帖数: 3610 | | r**********9
发帖数: 19633 | 3
nod，很好很好
【在 x*********6 的大作中提到】
: ^_^ 觉得自己写得很好了，我很满意
| x*********6
发帖数: 3610 | 4 ^_^
【在 r**********9 的大作中提到】
:
: nod，很好很好
| x*********6
发帖数: 3610 | 5 麦姐把我的贴马克了，但是没回，我估计她一看屎长就没看，哈
【在 r**********9 的大作中提到】
:
: nod，很好很好
| l*******r
发帖数: 39279 | 6 回家再看
我上来是看股版的
【在 x*********6 的大作中提到】
: 麦姐把我的贴马克了，但是没回，我估计她一看屎长就没看，哈
| x*********6
发帖数: 3610 | 7 你股票解套没
【在 l*******r 的大作中提到】
: 回家再看
: 我上来是看股版的
| l*******r
发帖数: 39279 | 8 木有
【在 x*********6 的大作中提到】
: 你股票解套没
| l*******r
发帖数: 39279 | 9 小宝这法律真没白学
【在 x*********6 的大作中提到】
: One employer shall have a certain degree of discretion with respect to its
: employment policies. While the legal system confers plenary power on the
: employer to draft the same, it also confers incidental power over actions
: reasonably connected to it. In this case, Facebook went beyond any true
: conception of what is incidental to a legitimate policy-making power.
: Disagreement exists because different judicial minds see the boundaries of
: such power differently located.
: The legal "proportionality" refers to the idea that there should be a
: reasonable relationship or balance between an end and the means used to
: achieve that end. Thus, an inquiry into the proportionality of a policy
| x*********6
发帖数: 3610 | 10 ^_^ 谢谢鼓励
【在 l*******r 的大作中提到】
: 小宝这法律真没白学
| | | x*********6
发帖数: 3610 | 11 我应该找到那几个人鼓动他们打官司，从中渔利，买几个包
我这水平，不换成钱，浪费呀！
【在 l*******r 的大作中提到】
: 小宝这法律真没白学
| r**********9
发帖数: 19633 | 12
哈哈，对！
【在 x*********6 的大作中提到】
: 我应该找到那几个人鼓动他们打官司，从中渔利，买几个包
: 我这水平，不换成钱，浪费呀！
| x*********6
发帖数: 3610 | 13 我刚给大傻发信请教从中渔利这事，他给我出了几个主意，哈哈哈哈，逗死我了，几乎
是要点醒我呀！
想起姜文电影里那句，就是要站着还把钱挣了
我看律师这行想德艺双馨很难，非要站着挣钱的话，最后就只剩站着了
【在 r**********9 的大作中提到】
:
: 哈哈，对！
| l*******r
发帖数: 39279 | 14 你还是信任你傻叔啊
【在 x*********6 的大作中提到】
: 我刚给大傻发信请教从中渔利这事，他给我出了几个主意，哈哈哈哈，逗死我了，几乎
: 是要点醒我呀！
: 想起姜文电影里那句，就是要站着还把钱挣了
: 我看律师这行想德艺双馨很难，非要站着挣钱的话，最后就只剩站着了
| x*********6
发帖数: 3610 | 15 傻叔风流倜傥绝世无双
【在 l*******r 的大作中提到】
: 你还是信任你傻叔啊
| x*********6
发帖数: 3610 | 16 他还教我把你从神坛上拉下来，自己当hope女皇
【在 l*******r 的大作中提到】
: 你还是信任你傻叔啊
| l*******r
发帖数: 39279 | 17 他贼心不死啊
我懒得理他
【在 x*********6 的大作中提到】
: 他还教我把你从神坛上拉下来，自己当hope女皇
| l*******r
发帖数: 39279 | 18 你这么喜欢傻叔？要不考虑下
【在 x*********6 的大作中提到】
: 傻叔风流倜傥绝世无双
| x*********6
发帖数: 3610 | 19 不考虑
【在 l*******r 的大作中提到】
: 你这么喜欢傻叔？要不考虑下
|
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