law common – Prosecute Bush Cheney http://prosecutebushcheney.org/ Sun, 17 Apr 2022 08:27:44 +0000 en-US hourly 1 https://wordpress.org/?v=5.9.3 https://prosecutebushcheney.org/wp-content/uploads/2021/08/cropped-icon-32x32.png law common – Prosecute Bush Cheney http://prosecutebushcheney.org/ 32 32 What is common law and why is it misinterpreted? | Law https://prosecutebushcheney.org/what-is-common-law-and-why-is-it-misinterpreted-law/ Sat, 12 Feb 2022 11:31:00 +0000 https://prosecutebushcheney.org/what-is-common-law-and-why-is-it-misinterpreted-law/ What is commmon law? It is the system of law – used in the UK as well as in many places that were once part of the British Empire – based on precedents of judges’ decisions rather than written law. Common law is made by judges who study reports of older cases that have been […]]]>

What is commmon law?

It is the system of law – used in the UK as well as in many places that were once part of the British Empire – based on precedents of judges’ decisions rather than written law.

Common law is made by judges who study reports of older cases that have been decided and then derive principles that will be applied by other judges in the future.

What are fakes commmon legal beliefs?

They vary, but campaigners and others believe they can use Magna Carta and old English law to challenge or ignore regulations and even bring politicians, scientists and journalists to so-called courts of justice. common law for “crimes”.

Such tribunals have no legal existence, nor do fake writs, which anti-vaccine activists have “served” in schools and hospitals, calling for a halt to the administration and promotion of vaccines. Covid-19 vaccines.

Common law writs or common law courts do not exist, nor do “common law officers”, which some activists have “trained” in order to form physical barriers against what they mistakenly believe to be the “illegal” actions of the police and other lawful agents. authorities.

Where is he from?

The modern false common law movement had its roots in American sovereign citizens’ movements, emerging in the 1970s and gaining prominence as it coalesced with the growth of right-wing militias.

He made his way, via Canada, to the UK, where supporters range from fringe political activists who tried to promote him by running for office to others who tried to build forces of “ghost” font. Others included pro-Trump supporters who tried to stage a citizen’s arrest of Sadiq Khan in 2018.

What happened recently?

Proponents of bogus common law have grown more belligerent as Brexit approaches. However, the belief has been reinforced on social media and has found a wider and more receptive audience among those looking for reasons to disobey or ignore lockdown regulations during the pandemic.

A plethora of new anti-lockdown and anti-vaccine groups are promoting it, including in some cases running fake “classes” alongside training in civil disobedience techniques.

Some have tried to disrupt vaccination centers by saying police are carrying out criminal investigations into the work after activists entered the stations and made allegations. The police stress that the reference numbers provided on these occasions to activists, who post images on social networks, do not mean that there are investigations.

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English Commercial court enforces DIFC court judgment under common law rules | K&L Gates LLP https://prosecutebushcheney.org/english-commercial-court-enforces-difc-court-judgment-under-common-law-rules-kl-gates-llp/ Sun, 23 Jan 2022 21:11:15 +0000 https://prosecutebushcheney.org/english-commercial-court-enforces-difc-court-judgment-under-common-law-rules-kl-gates-llp/ The Commercial Court of the Queen’s Bench Division of the High Court of Justice of England and Wales (Commercial Court) has granted a motion for summary judgment on a claim for enforcement in England of a judgment DIFC Courts (an English-language common law court in the Dubai International Financial Center (DIFC), United Arab Emirates (UAE)). […]]]>

The Commercial Court of the Queen’s Bench Division of the High Court of Justice of England and Wales (Commercial Court) has granted a motion for summary judgment on a claim for enforcement in England of a judgment DIFC Courts (an English-language common law court in the Dubai International Financial Center (DIFC), United Arab Emirates (UAE)). The case (Barclays Bank Plc v Shetty [2022] EWHC 19 (Comm)) is a helpful reminder of the principles English courts will adopt when asked to enforce a foreign judgment at common law.

The defendant, Dr. Bavaguthu Raghuram Shetty (Dr. Shetty), the founder of a foreign exchange business (UAEEC), had provided a guarantee (Guarantee) by which Dr. Shetty guaranteed the performance by the UAEEC of its obligations under certain derivative contracts with Barclays Bank PLC (Barclays), which were terminated early following a default by the UAEEC. The Guarantee was governed by English law and contained an exclusive jurisdiction clause in favor of the DIFC courts. A claim for payment was made under the guarantee by Barclays, which Dr Shetty had failed to meet.

Barclays brought proceedings against Dr Shetty in the DIFC Magistrates Court (Barclays Bank PLC v Bavaguthu Raghuram Shetty [2020] DIFC CFI 061), claiming the sums claimed under the Guarantee. By judgment dated April 22, 2021, Judge Martin granted Barclays’ request for immediate judgment (equivalent to summary judgment), finding that “none of the issues raised on behalf of Dr Shetty offer a realistic prospect of a successful defense of Barclays’ claim against him, nor any other compelling reason why the matter should go to trial. Judge Martin noted that following the hearing of the motion for immediate judgment, Dr Shetty had embarked on “a strategy of seizing any point, regardless of background, with the aim of delaying the delivery of [his] decision.” The judge further ordered that the worldwide freeze order Barclays had previously obtained remains in effect, amended to remove the previous exceptions for legal costs and reasonable living expenses.

By judgment dated May 4, 2021, the DIFC Magistrate’s Court issued its judgment on quantum, ordering judgment to be entered in the amount of USD 131,440,346.22 plus simple interest at the rate of 9% per year on the outstanding balance until the judgment is satisfied. full.

In July 2021, Barclays served a claim form and details of the claim to enforce the DIFC judgment in England and Wales and subsequently sought summary judgment. Dr. Shetty applied for an adjournment of summary judgment proceedings on the grounds that he was an in-person litigant and was unable to defend the claim without legal representation and advice. He said he had been unable to hire a company to act on his behalf following freezing orders obtained in separate proceedings in India and had requested an adjournment in order to seek the variation of Indian orders and then obtain legal advice and representation in these proceedings. .

Enforcement of Common Law DIFC Court Judgments

In granting summary judgment in favor of Barclays and dismissing the request for adjournment, Judge Henshaw referred to the principles relevant to the enforcement of DIFC judgments which he had previously summarized in FH Capital Limited v Haigh and Others [2020] EWHC 1269 (Comm).

These principles, summarized in the FH Capital case, are as follows:

  • There is no treaty dealing with the recognition and enforcement of judgments between the UK and the UAE. As such, DIFC court judgments can only be enforced at common law.
  • At common law, where a competent foreign court determines that a certain sum is due from one person to another, a legal obligation arises for the debtor to pay that sum, which can be enforced in the courts of England and the Wales.
  • The DIFC Courts and Commercial Court Enforcement Guidance Memorandum includes a useful summary of the common law enforcement requirements for foreign judgments:
    • The judgment of the foreign court must be final and without appeal.
    • The commercial court will not enforce certain types of judgments, for example judgments ordering the payment of taxes, fines or penalties.
    • The foreign court must have had jurisdiction, under English conflict of law rules, to determine the subject matter of the dispute.
  • The commercial court will generally consider the foreign court to have jurisdiction only if the person against whom the judgment was rendered meets the following conditions:
    • Was, at the time of the opening of the proceedings, present in the jurisdiction; Where
    • Was the plaintiff or counterclaimant in the proceeding; Where
    • Subject to the jurisdiction of the foreign court; Where
    • Agreed, before the opening, with respect to the object of the proceedings, to submit to the jurisdiction of the foreign court.
  • A decision of a foreign court can only be challenged before the commercial court under the common law regime on limited grounds. These grounds include:
    • When the judgment was obtained by fraud;
    • Where the judgment is contrary to English public order; and
    • When the proceedings have been conducted in a manner that the commercial court considers contrary to the principles of natural justice.
  • The Commercial Court will not review a judgment of the DIFC Court on the merits. The judgment cannot be challenged on the grounds that it contains an error of fact or of law.
  • In most cases, a party will have the right to seek summary judgment without a trial under Part 24 of the Rules of Civil Procedure.

Applying the test for granting summary judgment, the Commercial Court found that Dr Shetty had no real chance of successfully arguing that the terms of enforcement of the judgment of the UK DIFC court n had not been met and concluded that there were no other compelling grounds for a trial. As a result, the Commercial Court granted Barclays’ motion for summary judgment and denied Dr Shetty’s request for an adjournment, which the court viewed as a deliberate last-minute tactic to seek to delay proceedings.

Comment

The case is a useful reminder of the availability of summary judgment in foreign judgment enforcement proceedings, such as those in the DIFC courts, in England and Wales under common law principles and contains a summary useful of the legal criteria that the English Commercial Court will apply. adopt where required to enforce such judgments under the common law regime, including, in particular, the very limited grounds available for challenging the foreign judgment.

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Contemporary Common Law Developments in Contract Law: Implications for Reform in Malaysia – Mary Lim | What you think https://prosecutebushcheney.org/contemporary-common-law-developments-in-contract-law-implications-for-reform-in-malaysia-mary-lim-what-you-think/ Thu, 09 Dec 2021 00:02:10 +0000 https://prosecutebushcheney.org/contemporary-common-law-developments-in-contract-law-implications-for-reform-in-malaysia-mary-lim-what-you-think/ [ad_1] DECEMBER 9 – There is an appointment by His Majesty the King of a person known as the Law Revision Commissioner. This appointment is made under a little-known law called the Law Revision Law of 1968 or Law 1. The Law Revision Commissioner has the primary power and function of reviewing and reprinting all […]]]>


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DECEMBER 9 – There is an appointment by His Majesty the King of a person known as the Law Revision Commissioner. This appointment is made under a little-known law called the Law Revision Law of 1968 or Law 1.

The Law Revision Commissioner has the primary power and function of reviewing and reprinting all laws passed by Parliament and this includes all laws prior to Merdeka.

Revision is essentially an exercise in updating our laws and keeping in our treasury only those laws that are still in force with a language in tandem with current legislation.

One would have thought that this exercise should be done by Parliament or the legislative assemblies of the respective states since all laws are promulgated by Parliament. Under Law 1, this function of reviewing our laws is left in the hands of the Law Review Commissioner.

Here is an example of the powers of the commissioner. The Commissioner may omit from any revised law, for example:

* Any provision which has ceased to have effect;

* Any preamble or part of a preamble of a law;

* Any adoption clause;

* Any part of a law which can be more conveniently included as subsidiary law.

In this revision exercise, the commissioner can even add a long or short title or modify an existing title; provide or modify tables of contents, consolidate or divide into one or more laws; transfer any provision of one statute to another statute to which that provision more correctly belongs; modify, insert or omit punctuation marks.

There is more; a total of about 24 powers. But, there is a strict prescription to all of these powers.

The Commissioner is expressly informed that the powers conferred “should not be interpreted as implying a power to make modifications or modifications to the substance of a law”.

In 2006, I was appointed Commissioner of Law Revision or CLR as the position is more commonly known. But, I wasn’t just the CLR.

Four years earlier, the CLR had taken on an additional portfolio and had become the Law Review and Reform Commissioner. The Research Unit of the Public Prosecutor’s Office is placed under the supervision of the CLR.

Thus, the task of law reform came under the auspices of the CLR. However, until that date, Act 1 and the appointment of the CLR remain unchanged; and I understand that there is yet another research unit at AGC.

Why am I referring to the office of the CLR and the powers granted under Act 1 to the CLR as we are here this morning on the cases of the Contracts Act 1950 and more specifically, the development of contemporary customary law in Malaysia?

Perhaps its relevance will become clearer when we understand the broader intent of this round of talks.

English commercial law was first introduced into the Straits Settlements through the Civil Law Ordinance of 1878. In 1899, the Contract Act, modeled on the Indian Contract Act of 1872, was adopted. then promulgated.

It applied to the four Federated Malaysian States. This law was later extended to the non-federated Malaysian states through the Contracts Ordinance of 1950.

The contracting ordinance was then revised under the powers that I explained a moment ago. With effect from July 1, 1974, the Contracts Ordinance became the Contracts Act 1950 and constitutes Act 137 of the Malaysia series of laws.

The Indian contract law is said to be in fact “a code of English law”. Our contract law should not be viewed any differently. As a Code, one should be able to find all the answers in its pages.

Yet, as you will hear, the contracting parties have repeatedly called upon our courts to the common law for assistance, for development. For example, our provisions on coercion [section 15 of the Contracts Act] are said to be archaic, disregarding commercial realities and pressures, that economic constraint must be properly recognized.

In the recent decision of Pakistan International Airline Corporation v Times Travel (UK) Ltd [2021] UKSC 40, [2021] 3 WLR 727, the English courts have even recognized the concept of a lawful act of economic coercion.

Likewise, the concepts or at least the arguments of inequity and unequal bargaining have been left out, namely that our existing article 16 on “abuse of influence” would simply be inadequate to deal with modern quarrels in law and order. conference rooms.

So in Saas Marwi vs. Chan Hwan Hua [2001] 3 CLJ 98, the Court of Appeal suggested that “we should recognize the broader doctrine of unequal bargaining power. We can adopt the English doctrine of unconsciousness in toto ”. The Court of Appeal held that this was a choice available under section 3 of the Civil Law Act 1956. [Act 67].

What about the treatment of illegality as addressed by the Supreme Court in Patel vs. Mirza [2016] UKSC 42 – is it within the scope of article 24? What about the law of restitution, of unjust enrichment?

Does this fall under the law or have we pushed its terms beyond its limits? The recent Federal Court decision in Cubic Electronics Sdn Bhd vs. Mars Telecommunications Sdn Bhd [2019] 6 MLJ 15 has satisfactorily terminated the damages position; is it in tandem with the rest of the other common law jurisdictions.

The contracting parties have repeatedly called on our courts to use the common law for assistance, for development.  - Photo by Yusof Mat Isa
The contracting parties have repeatedly called on our courts to use the common law for assistance, for development. – Photo by Yusof Mat Isa

Another example is electronic transactions. If one looked to the requirements of the law on forming a valid and concluded agreement, and by the time one arrives at it, it is more likely than not that the many parties involved in an electronic transaction or a web contract have already clicked and sent a response via the impossible algorithms.

How many of us have really gone through and read the countless terms and conditions before clicking the “I agree” or “I agree” or even “Pay” button? The fear is that this law of the last century will not be able to resolve the disputes that arise from these e-commerce transactions.

There is certainly more.

It is clear and obvious that the law on contracts needs revision, and swiftly. And the revision of the Law on Contracts, a law that regulates and underpins many fundamental aspects of our daily lives, our businesses, our industry, our government and more; cannot be left to the court. Court observations can be challenged as obiter or worse, by carelessness. There are only limits that the courts can model on the facts in order to do justice.

The revision of our law on contractual obligations to take into account and accommodate developments in Common Law must be undertaken in a responsible manner, through agreement and discourse; extensive, in-depth and refined deliberations by appropriate experts; many of whom are already attending this webinar and those to come in the coming days.

This task fits perfectly into the additional function of the CLR, that of reform. But, as I pointed out at the beginning, this task can, with respect, go beyond the powers of the CLR; certainly not as a review exercise, but as a reform project.

In the UK, reform matters are by statute the responsibility of the Law Reform Commissioner. A sitting judge of the Court of Appeal directs this appointment. Sir Nicholas Green is assisted by an independent and permanent secretariat

In fact, just last week the Law Commission “confirmed that existing law in England and Wales is capable of adapting and applying to smart legal contracts, without the need for reform statutory law. The Law Commission notes that in some contexts a progressive development of the common law is all that is needed to facilitate the use of smart legal contracts within the existing legal framework.

We need this. We need an independent legal commission to undertake all the reforms.

Its urgent work will then be able to integrate all the studies and recommendations which, it is hoped, will result from this series for greater confidence in the evolution of our law of contractual obligations; that law and common law can really be ad ditto.

* Datuk Mary Lim Thiam Suan is a judge at the Federal Court of Malaysia and here is her remarks delivered at the Faculty of Law of the University of Malaysia on December 4th.

** This is the personal opinion of the author or post and does not necessarily represent the views of Malaysian courier.

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Dean, Faculty of Law (Common Law Section) employment with the University of Ottawa https://prosecutebushcheney.org/dean-faculty-of-law-common-law-section-employment-with-the-university-of-ottawa/ https://prosecutebushcheney.org/dean-faculty-of-law-common-law-section-employment-with-the-university-of-ottawa/#respond Mon, 12 Jul 2021 07:00:00 +0000 https://prosecutebushcheney.org/dean-faculty-of-law-common-law-section-employment-with-the-university-of-ottawa/ [ad_1] Opportunities and challenges As the largest and one of the leading law schools in Canada, the Faculty of Law (Common Law Section) will welcome its next dean as a dynamic and transformative leader who will work collaboratively within the Faculty and of the University to achieve the ambitious goals of the Common Law Section’s […]]]>


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Opportunities and challenges

As the largest and one of the leading law schools in Canada, the Faculty of Law (Common Law Section) will welcome its next dean as a dynamic and transformative leader who will work collaboratively within the Faculty and of the University to achieve the ambitious goals of the Common Law Section’s Strategic Plan, Excellence, Leadership and Community: Strategic Plan 2019-2024, in line with the University’s plan, Transformation 2030, to improve its reputation as a world-class destination for legal education and research.

As the only law school to offer a common law degree in English and French, its bilingual character is a fundamental feature of the Common Law Section. With calls to action emanating from the Truth and Reconciliation Commission, the Faculty is compelled to show leadership in the field of tri-legal legal research and education. As restrictions are lifted, the COVID-19 pandemic presents a unique opportunity for the new dean to lead the Faculty to innovate and improve in the areas of academic programming, student experience and research.

Responsibilities

Reporting directly to the President and Vice-President for Academic Affairs, the Dean is an integral part of the University’s senior management team. The Dean is responsible for overseeing all aspects of the internal administration of the Faculty and represents the Faculty nationally and internationally. The Dean provides inspiring leadership to enhance the Faculty’s regional, national and international reputation and works with the Faculty’s leadership team to define the strategic vision and priorities for the next phase of its development. As Director and Ambassador of the Faculty, the Dean also represents and promotes it to external stakeholders, including the legal profession, alumni and supporters, and should play an active role in fundraising to support activities. and the projects of the Faculty.

The Faculty of Law at the University of Ottawa is known for its influence on policy and law at the provincial and federal levels, and professors regularly appear before parliamentary committees and as legal advisers in appeal and judicial hearings. the Supreme Court of Canada. The Dean should be committed to raising public awareness and engaging with the community, expanding the scope of the faculty through public service, knowledge mobilization, and dynamic engagement with local and global communities.

The successful candidate will motivate the university community to strive for exceptional teaching and research accomplishments, recruit and retain exceptional faculty and students, and attract funding from a variety of sources, thereby enabling the Faculty to increase its position on nationally and internationally. stage.

Profile

The Dean will have an impressive record of scholarly achievement combined with significant administrative experience and demonstrated effectiveness as a leader. The Dean will have strong interpersonal and communication skills and will have experience in interdisciplinary and interdisciplinary academic and research programs.

Experience and key skills

Knowledge and experience

  • A graduate degree in common law or a related discipline, or relevant experience in the legal profession
  • Knowledge and understanding of research-intensive universities and the unique mission of common law schools, and legal education as a professional program, within these institutions
  • Interdisciplinary vision and perspective to collaborate with other units of the University in the development of innovative programs and projects
  • Strategic vision and inspiring leadership, coupled with a proven ability to nurture strong relationships, foster collaboration, and engage stakeholders and colleagues through innovation and community engagement
  • Knowledge and experience of the legal profession and how best to align and promote compatibility of the educational goals of the Faculty and the profession
  • A proven commitment to:
    • specific calls to action from the Truth and Reconciliation Commission concerning law schools and legal education
    • all aspects of equity, diversity and inclusion, including ongoing work on anti-racism within the Faculty of Law
    • bilingualism and support for common law programs in English and French
    • mental health and well-being as fundamental values ​​within the Faculty
  • An experienced manager with a proven track record in change management, innovative and entrepreneurial initiatives and large-scale projects
  • An understanding and appreciation of the responsibility for budget management and fiscal sustainability
  • Relevant experience in fundraising and interacting with the philanthropic community

Skills and personal qualities

  • Dynamic and transformational leadership capacity
  • Empathetic, collaborative, unifying and inclusive leadership style in the interaction with students, professors, staff, alumni and all stakeholders of the Faculty
  • A strong commitment to higher education and its importance for social, cultural and economic development
  • Excellent teamwork, teamwork and negotiation skills
  • Entrepreneurial and decisive spirit
  • Imagination, tact, diplomacy and political acumen
  • Humility and eagerness to support staff and faculty in pursuing their own aspirations to succeed
  • Strong skills in organizing, planning and managing priorities
  • Ability to focus on strategic objectives, innovate and mobilize resources and promote change
  • Ability to develop productive partnerships with other faculties and external stakeholders
  • A keen interest in students and a strong desire to engage in campus life and improve the student experience
  • Proven ability to communicate clearly and convincingly with different audiences
  • Demonstrable commitment to fostering a work environment based on inclusion, respect and recognition
  • Bilingualism in English and French at a professional level is a requirement for this position.

University of Ottawa

Located on the unceded ancestral territory of the Algonquin Nation, the University of Ottawa is a leading research university offering a full range of academic programs. Founded in 1848, today it is the largest bilingual French-English university in the world, with nine faculties and 45,000 students enrolled in its undergraduate, graduate and postdoctoral programs. It is among the top 10 research universities in Canada and ranks 145th in the Times Higher Education World University Rankings.

To learn more about the University of Ottawa, visit our website.

Faculty of Law (Common Law Section)

With more than 1,100 students, the Common Law Section of the University of Ottawa is the largest law school in Canada and the only one in the world to offer common law programs in English and French (JD anglais, JD French and JD – National Program, and a variety of combined programs). The Faculty is located within walking distance of the Parliament of Canada, the Supreme Court of Canada and several courts and tribunals, the Faculty has access to decision makers and legal experts who render the student experience of the University of Unique Ottawa. The Faculty of the Common Law Section includes many nationally and internationally recognized academics, including two Canada Research Chairs focusing on technology and law, six University Research Chairs and five Endowed Chairs and Emeritus Professors, including the Hyman Soloway Chair in Business and Commercial Law, the Neuberger-Jesin International Conflict Resolution Chair and the Shirley Greenberg Professor of Women and the Legal Profession.

The Common Law section offers specializations in Law and Technology, International Law, Health Law, Environmental Law, Public Law, Indigenous Legal Studies, Social Law and Justice, and Dispute Resolution, and is recognized globally for teaching and research of these specialties. . The Common Law Section is particularly noted for its success in international moot court competitions and “hands-on” legal clinics for students, including the University of Ottawa Legal Clinic, the uOttawa Environmental Law Clinic. Ecojustice, Samuelson-Glushko Canadian Policy and Public Interest Clinic, University of Ottawa Business Law Clinic, Human Rights Research and Education Center and Ian G. Scott. The result is a vibrant law school offering programs and internships that are unique to Canada, and particularly relevant to the issues facing today’s society.

Graduate studies at the Faculty of Law (Common Law Section) are offered in conjunction with the Faculty of Law (Civil Law Section) and provide rich opportunities for comparative legal research in Canada’s two official languages.

Application

If you think you match the profile we are looking for, please complete the application form and attach your CV and a cover letter. We treat all information received in the strictest confidence. We thank in advance all those who apply. Review of nominations, nominations and expressions of interest will begin immediately and continue until an appointment is made.

The University of Ottawa is an equal opportunity employer. We strongly encourage applications from women, Aboriginal people, people with disabilities and members of visible minorities. In accordance with the requirements of Citizenship, Refugees and Immigration Canada, all qualified persons are invited to apply.
However, preference will be given to Canadian citizens and permanent residents.

The University of Ottawa is proud of its 160-year tradition of bilingualism. At the time of their appointment, members of senior management must have the ability to function in a bilingual environment (French and English).

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Emergency leave for infectious diseases is not constructive dismissal at common law – employment and hr https://prosecutebushcheney.org/emergency-leave-for-infectious-diseases-is-not-constructive-dismissal-at-common-law-employment-and-hr/ https://prosecutebushcheney.org/emergency-leave-for-infectious-diseases-is-not-constructive-dismissal-at-common-law-employment-and-hr/#respond Fri, 11 Jun 2021 07:00:00 +0000 https://prosecutebushcheney.org/emergency-leave-for-infectious-diseases-is-not-constructive-dismissal-at-common-law-employment-and-hr/ [ad_1] Canada: Emergency leave for infectious diseases is not constructive dismissal at common law To print this article, simply register or connect to Mondaq.com. In May 2020, Ontario Regulation 228/20 was introduced in the Employment Standards Act (ESA), exempting temporary hours or pay cuts related to COVID-19 from the usual layoff and constructive termination provisions. […]]]>


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Canada: Emergency leave for infectious diseases is not constructive dismissal at common law

To print this article, simply register or connect to Mondaq.com.

In May 2020, Ontario Regulation 228/20 was introduced in the Employment Standards Act (ESA), exempting temporary hours or pay cuts related to COVID-19 from the usual layoff and constructive termination provisions. We published a detailed bulletin on the new regulations last spring. At the time, while it was clear that the regulation provided legal protection for employers seeking to impose reductions in hours and / or wages due to COVID-19, it was less clear how the regulation would affect workers. common law constructive dismissal requests. On June 7, 2021, the Ontario Superior Court of Justice provided long-awaited guidance on this issue.

In Taylor v. Hanley Hospitality Inc.1, Ferguson J. allowed the defendant employer’s rule 21 motion to strike the employee’s claim for constructive dismissal on the grounds that the settlement applies not only to statutory constructive dismissal claims , but also to common law constructive dismissal requests. The Court specifically ruled that, in accordance with the Regulations, all temporary layoffs related to COVID-19 are deemed to be emergency infectious disease leave (IDEL), retroactive to March 1, 2020. As such, the layoff employee’s layoff is no longer a layoff, and is in fact an IDEL, and normal statutory leave entitlements apply. The court ruled that this means that any common law argument about layoffs has become inapplicable and irrelevant to these types of scenarios under the regulations.

What would you like to know

  • The regulation considers that any layoff related to COVID-19 is an IDEL: The Court ruled that an employee cannot be on leave of absence for the purposes of the ESA and yet be terminated by constructive dismissal for the purposes of the common law. It would be an “absurd result”. Therefore, the Settlement should be interpreted as applying to all constructive dismissal claims.
  • The regulation does not prevent the SEC from replacing common law: The Court noted that there was nothing in the regulations that prevented the ESA from displacing an employee’s common law rights. In fact, the Court of Appeal has already ruled that statutes supersede the common law in a case involving ESA.
  • The context of the regulation is important: The Court noted that it was important to remember the background to IDEL and the regulations. Specifically, that the legislature first created a “problem”, when a state of emergency was triggered, forcing employers to cease or reduce their activities. In doing so, Parliament exposed employers to allegations of constructive dismissal at common law. To avoid these consequences, the legislator amended the SEC to create IDEL and the regulation. On the basis of this background, it should be obvious what the legislature’s intention was in doing so.
  • Coutinho considered “bad in law”: The Court considered at length the recent decision of the Ontario Superior Court in Coutinho v. Ocular Health Center Ltd.2 In Coutinho, on a motion for summary judgment, the Court held that the Regulations did not necessarily exclude a common law action for constructive dismissal. However, Ferguson J. in that case concluded that the analysis in
    Coutinho was “incorrect in law” because it ignored the context of IDEL and the Regulations. Further away,
    Coutinho failed to take into account that his interpretation of the Regulations rendered the statute meaningless and, therefore, contravened the rules of statutory interpretation.

Summary of the facts

Candace Taylor was temporarily laid off from her job on March 27, 2020. On August 18, 2020, Ms. Taylor was recalled to her job and returned to her job. Ms. Taylor nevertheless brought an action against her employer for constructive dismissal during the period of her alleged temporary layoff. In her request, Ms. Taylor acknowledged that the temporary layoff was linked to the COVID-19 pandemic. The employer, Hanley Hospitality, brought a Rule 21 motion to strike Ms. Taylor’s complaint on the grounds that under the Regulations Ms. Taylor’s layoff was in fact an IDEL and, therefore, could not be constructive dismissal under the law. or common law.

The court’s decision

In the ruling, Justice Ferguson took judicial notice that hundreds of thousands of Canadians have seen their jobs cut short by the COVID-19 pandemic, which the Ontario government passed an emergency order requiring many businesses (including the defendant) to close their stores and limit their services and that the province has taken legislative action to deal with the impacts of the pandemic on jobs.

Justice Ferguson reviewed Ontario Regulation 228/20 noting that under the Regulation, a temporary reduction or termination of an employee’s working hours by the employer for reasons related to COVID-19 does not constitute constructive dismissal.

Judge Ferguson then turned to Coutinho v. Ocular Health Center Ltd. in which Broad J. ruled that Rule 228/20 did not preclude an employee from making a common law constructive dismissal claim in connection with a layoff without pay for reasons related to COVID-19. Judge Broad’s decision in
Coutinho Focused on section 8 (1) of the Regulations which provides that (subject to limited circumstances that were not present) no civil remedy by an employee against his employer is affected by the ESA. In addition, Justice Broad referred to the Ontario Ministry of Labor guide which stated that the regulation only affected what constituted constructive dismissal under the ESA and did not address what constituted dismissal. disguised as common law. Therefore, the Justice Commission concluded that the common law constructive dismissal claims were not affected by the settlement.

Ferguson J. concluded that Coutinho had been badly decided. According to Judge Ferguson, it is breaking the rules of statutory interpretation to give an interpretation which renders the meaning of a law, which happened in
Coutinho. Ferguson J. also ruled that subsection 8 (1) of the ESA did not support the proposition that Justice Broad had espoused, but rather that subsection 8 (1) had been interpreted by the courts as simply indicating that ESA no. ‘does not set out an exclusive forum for dealing with matters set out in the ESA, and that subsection 8 (1) had never been interpreted as preventing the ESA from supplanting the common law. On the contrary, the Ontario Court of Appeal has already stated that laws passed by the legislature supersede the common law and that it is a mistaken premise that the common law continues to operate independently of the ESA. Finally, Justice Ferguson ruled that the regulations can and do change the common law, meaning that the reductions or elimination of COVID-19-related hours of work are not layoffs or constructive dismissals. , but are considered as statutory holidays.

Granting the employer’s motion and dismissing the action, Ferguson J. concluded by stating that the Ontario government recognized the injustice inherent in subjecting employers to wrongful dismissal claims as a result of the government’s imposition of a state of emergency, and therefore adopted the regulations. Justice Ferguson noted that if the government had not taken this step, it would only have served to worsen the economic crisis of the pandemic.

Footnotes

1 2021 ONSC 3135

2 2021 ONSC 3076

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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AVU President Jim Ryan ’92 examines educational inequalities in “common law” https://prosecutebushcheney.org/avu-president-jim-ryan-92-examines-educational-inequalities-in-common-law/ https://prosecutebushcheney.org/avu-president-jim-ryan-92-examines-educational-inequalities-in-common-law/#respond Tue, 01 Jun 2021 07:00:00 +0000 https://prosecutebushcheney.org/avu-president-jim-ryan-92-examines-educational-inequalities-in-common-law/ [ad_1] Schools across the country need funds and other resources to combat the lasting effects of segregation, University of Virginia President Jim Ryan ’92 said in the season finale of Common Law “, a UVA Law podcast. Ryan, an expert in law and education and former dean of the Harvard Graduate School of Education, is […]]]>


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Schools across the country need funds and other resources to combat the lasting effects of segregation, University of Virginia President Jim Ryan ’92 said in the season finale of Common Law “, a UVA Law podcast.

Ryan, an expert in law and education and former dean of the Harvard Graduate School of Education, is the author of “Five Miles Away, a World Apart: One City, Two Schools and the Story of Educational Opportunity in Modern America”. Published in 2010 while Ryan was a faculty member at AVU Law, the book focuses on two high schools in the Richmond, Virginia area. Despite being only five miles apart, the schools exhibited different racial compositions in the student body and different results in tests, college attendance and dropout rates.

Ryan explains on the show that segregation in public schools has become entrenched.

“To the extent that neighborhoods are segregated, schools will be segregated,” he says.

Although the Supreme Court Brown v. Education Council decision declared that “separate but equal” schools were unconstitutional in 1954, the change happened slowly, then stopped in 1974. It was then that the Supreme Court ruled in Milliken v. Bradley that the courts could not impose desegregation between school districts in order to desegregate schools. The move led to a “white robbery” from cities to suburbs and entrenched school district lines.

“There’s this myth that we really tried to desegregate schools – I mean, we gave it our all, but it didn’t work out, so that’s a classic example of the limits of the law,” says -he. “It’s not really the truth. We, if you think of the justice system, have not given it our all. We delayed 10 years later Brown, then got serious for a few years, then put this huge obstacle to desegregation.

Ryan says that while urban schools sometimes spend more per student than whiter suburban schools, they need more funds to help school populations who are more food insecure, have more special needs, or do more. often faced with difficult family situations.

Ryan and the hosts discuss how to narrow the disparities, the need to strengthen career paths outside of college, and what AVU is doing to help its own first-generation students.

Hosted by Dean Risa Goluboff and Vice Dean Leslie Kendrick ’06, “Common Law” has focused this season on “Law and Equity”.

While the themes of the first two seasons were temporal – the first focused on “The Future of Law” and the second on “When the Law Changed the World” – the third season examined a variety of questions through time. legal, asking what equity means and examining how it interacts with the law.

“Common Law” is available on Apple Podcasts, Stitcher, YouTube, Spotify, and other popular places where you can listen to podcasts. The show is produced by Emily Richardson-Lorente.

You can follow the show on CommonLawPodcast.com or Twitter at @CommonLawUVA.


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‘Common law’ plans to level the playing field in women’s football https://prosecutebushcheney.org/common-law-plans-to-level-the-playing-field-in-womens-football/ https://prosecutebushcheney.org/common-law-plans-to-level-the-playing-field-in-womens-football/#respond Tue, 11 May 2021 07:00:00 +0000 https://prosecutebushcheney.org/common-law-plans-to-level-the-playing-field-in-womens-football/ [ad_1] The world-champion US women’s football team have turned to the courts – as well as the court of public opinion – in their fight for fair wages and working conditions. Their efforts, and those of female athletes around the world, may contain broader lessons for achieving gender equality, a topic explored in the latest […]]]>


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The world-champion US women’s football team have turned to the courts – as well as the court of public opinion – in their fight for fair wages and working conditions. Their efforts, and those of female athletes around the world, may contain broader lessons for achieving gender equality, a topic explored in the latest episode of “Common Law,” a University Law School podcast. from Virginia.

In the episode, AVU law professor Camilo Sánchez, who heads the school’s International Human Rights Clinic, and clinical student Jolena Zabel ’21 discuss what they learned. by co-authoring a report on the topic, “Gender Discrimination in Football: Building a Toolkit Towards Gender Equity in the Beautiful Game.

Written in coordination with Dejusticia, which focuses on human rights in Colombia and the Global South, the report was published as a book in English and Spanish.

Sánchez, who also heads the school’s human rights program and the Center for International and Comparative Law, said on the show that looking at human rights through the lens of football is “a opportunity to bring the conversation about human rights into everyday life “.

Regarding the issue of equal pay for women in general, “When you have these huge disparities that affect half of the world’s population, it’s something that law and justice must be involved in,” he adds. -he.

After the U.S. women’s soccer team’s victory at the 2019 World Cup – their fourth victory since the competition began in 1991 – the players sued, arguing they were being paid unfairly compared to the 2019 World Cup. men’s team, which has never won a World Cup. They sought more than $ 66 million in damages under the Equal Pay Act and Title VII of the 1964 Civil Rights Act.

Although a judge initially rejected equal pay demands, saying women had negotiated a different type of contract than men and could no longer demand parity, the women’s team reported last month that she would appeal the decision.

However, the two sides recently reached an agreement on working conditions, so the women will now have comparable travel budgets, support staff and field conditions.

The disparities exist beyond the US women’s team, point out Sánchez and Zabel. The prize for the Women’s World Cup will be $ 60 million in 2023, while the prize for the next men’s cup, in 2022, will be $ 440 million. Female players around the world are paid much less than female players in the United States, and some even have to pay to train or use the facilities, Sánchez explains on the show.

In addition, “there is a chauvinistic culture that makes women vulnerable to many abuses, including sexual harassment and sexual abuse,” says Sánchez.

The pair also discuss the role of FIFA, the international governing body of football, and its role in applying arbitration to resolve disputes.

Zabel says she has seen signs of progress in Europe, where there has been a movement to demand to have a women’s team if there is a men’s Premier League team.

“And so we see a lot of the best American players joining clubs that you will recognize – Manchester United, things like that,” Zabel said.

Megan Rapinoe, the star of the American women’s team, owns the best-selling soccer jersey in the United States.

“I think in the long run it’s also an important tool to continue to show that people care and that there is a market,” she says. “Sport, like other things that we consume as a society for entertainment, tells us something about ourselves and our society.”

Hosted by Dean Risa Goluboff and Vice Dean Leslie Kendrick ’06, “Common Law” this season focuses on “Law and Equity”.

While the themes of the first two seasons were temporal – the first focused on “The Future of Law” and the second on “When the Law Changed the World” – this season examines a variety of legal issues through time, wondering what fairness means and examining how it interacts with the law.

“Common Law” is available on Apple Podcasts, Stitcher, YouTube, Spotify, and other popular places where you can listen to podcasts. The show is produced by Emily Richardson-Lorente.

You can follow the show on CommonLawPodcast.com or Twitter at @CommonLawUVA.


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Common Law Won’t Save Small Business From Fines After Violating Provincial COVID Restrictions https://prosecutebushcheney.org/common-law-wont-save-small-business-from-fines-after-violating-provincial-covid-restrictions/ https://prosecutebushcheney.org/common-law-wont-save-small-business-from-fines-after-violating-provincial-covid-restrictions/#respond Wed, 14 Apr 2021 07:00:00 +0000 https://prosecutebushcheney.org/common-law-wont-save-small-business-from-fines-after-violating-provincial-covid-restrictions/ [ad_1] Barrie’s Simmering Kettle recently had its liquor license revoked following complaints that it remained open for indoor dining despite provincial orders to the contrary. According to Kettle’s social media channels, he is immune to these restrictions under what is called common law. Common law, or the law of judgment, involves the practice of going […]]]>


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Barrie’s Simmering Kettle recently had its liquor license revoked following complaints that it remained open for indoor dining despite provincial orders to the contrary. According to Kettle’s social media channels, he is immune to these restrictions under what is called common law.

Common law, or the law of judgment, involves the practice of going back on previous decisions rendered by the courts in order to guide decisions on similar pending cases. “Common law is case law,” said Joshua Valler, senior partner at Barriston Law, who gave Barrie 360 ​​a crash course on the term. “It’s when someone sues someone, or a case ends up before a judge, a judge makes a decision on the matter. This is called common law. A judge’s decision sets a precedent that can be referred to later.

The simmering kettle loses its liquor license, could face further lawsuits for violating the provincial order banning dining in

“All the provinces, except Quebec, follow the common law, or the law of judgment,” he added.

Can the common law help a restaurant avoid or mitigate fines, removal of its liquor license, or complete closure by health inspectors?

Simple answer: No.

Complex answer: The common law only applies to civil litigation and certain criminal proceedings, but would be extremely difficult to apply to areas such as regulatory offenses. “There is a little difference when it comes to regulatory procedures,” Valler said. “Let’s say there is a fine issued by the Ministry of Labor or an inspector hired by the province to ensure compliance with the regulations. There will be a different standard if there is a fine they want to challenge; there is going to be another type of tribunal and different arguments are available to them.

Valler adds that the common law could apply in cases involving a civil lawsuit, such as a former employee suing an employer after being laid off. He says there are already such cases in court, and with little precedent to draw upon, judges will have to review decisions made by employers. “What you’re going to see, I think, is that the judge will look at the standard of what is reasonable,” he said. “Did they follow the advice of public health officials in their local health units? Have they implemented the appropriate security protocols to ensure that they maintain a safe and clean business space for customers and employees? And did they follow the regulations in place? “

While some companies that have been penalized for violating current restrictions have indicated their willingness to fight fines or fees imposed, it has been said that others will fight the legality of the restrictions themselves. Valler says that argument will take a long time to play out in court. “They could look at validity in the context of COVID-19 and was that a justifiable limitation? Now, it’s also going to take some time to make its way to court. Were these restrictions justified? And where have they even gone so far as to violate the Charter of Rights and Freedoms or other laws? “

Since the restrictions came into effect, the Simmering Kettle has been fined for staying open for indoor dining. The restaurant was also fined for not renewing its business license. On Friday, the owner said she would pay her fines and renew her license.

The Alcohol and Gaming Commission of Ontario (AGCO), which was responsible for the suspension of the Simmering Kettle’s liquor license, said it had asked for the license to be permanently revoked due to violations of provincial restrictions. “It is a very difficult time for all Ontarians. The hospitality industry has been hit particularly hard by the pandemic, and we understand and share the concerns of those whose livelihoods depend on it, ”said Tom Mungham, Registrar and CEO of AGCO. “We know that the vast majority of licensed establishments are also doing their part, despite the toll that this imposes on them. We never like to take these steps, but we have a mandate to protect the public and ensure the safety of our staff and we will not hesitate to take the necessary steps to do so. “

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The “common law” examines the regulation of the police https://prosecutebushcheney.org/the-common-law-examines-the-regulation-of-the-police/ https://prosecutebushcheney.org/the-common-law-examines-the-regulation-of-the-police/#respond Tue, 06 Apr 2021 07:00:00 +0000 https://prosecutebushcheney.org/the-common-law-examines-the-regulation-of-the-police/ [ad_1] It’s time to rethink the way we regulate the police, says Professor Rachel Harmon in the latest episode of “Common Law,” a podcast sponsored by the University of Virginia Law School. Police reforms should be broader than individual prosecutions of bad actors and focus on constitutional rights, Harmon said in the sixth episode of […]]]>


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It’s time to rethink the way we regulate the police, says Professor Rachel Harmon in the latest episode of “Common Law,” a podcast sponsored by the University of Virginia Law School.

Police reforms should be broader than individual prosecutions of bad actors and focus on constitutional rights, Harmon said in the sixth episode of the season. Communities should further consider whether policing is the solution to a given problem.

Harmon covers topics like these in his new casebook, “The Law of the Police,” the first to examine the laws that govern police conduct in the United States. The professor previously served in the Justice Department, prosecuting cases against police officers and other officials who committed civil rights violations, including hate crimes and cases of excessive force and sexual violence.

“One of the problems with individual prosecutions is that they can give the impression that the origins of police violence are largely in individual decision-making,” Harmon said on the show. “But when we look at police decision-making, so much of it is controlled by departments that criminal prosecutions can sometimes distract from the origins of the problem or the solution.”

Harmon suggests rethinking whether certain violations of the law, or alleged violations, are worth the damage caused by maintaining order. She pointed to Breonna Taylor’s “marginal” connection to a drug suspect. Police officers shot Taylor last year when they raided her home looking for her ex-boyfriend.

“And the question is: do we really think, as a society, that [marginal relationship] means we should walk into his house in the middle of the night and conduct a search even though it is clear that the people inside are armed and do not realize that they are being watched? Harmon asks.

During the show, Harmon discusses opportunities for the police to improve relations with the community and reduce the damage caused by over or under surveillance.

Harmon, director of the school’s Criminal Justice Center, teaches in the areas of criminal law and procedure, police and civil rights. She is a fellow of the American Law Institute and is an associate journalist for the ALI Principles of Police Law Project. She advises nonprofit organizations and government actors on law and order issues and, in the fall of 2017, served as a law enforcement expert for “Independent Review of Protest Events 2017 in Charlottesville, Virginia ”.

Hosted by Dean Risa Goluboff and Vice Dean Leslie Kendrick ’06, the show’s third season focuses on “Law and Fairness”.

While the themes of the first two seasons were temporal – the first focused on “The Future of Law” and the second on “When the Law Changed the World” – this season examines a variety of legal issues through time, wondering what fairness means and examining how it interacts with the law.

“Common Law” is available on Apple Podcasts, Stitcher, YouTube, Spotify, and other popular places where you can listen to podcasts. The show is produced by Emily Richardson-Lorente.

You can follow the show on CommonLawPodcast.com or Twitter at @CommonLawUVA.


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The Common Law Examines the Retreat of Historic Civil Rights Decisions in Family Law https://prosecutebushcheney.org/the-common-law-examines-the-retreat-of-historic-civil-rights-decisions-in-family-law/ https://prosecutebushcheney.org/the-common-law-examines-the-retreat-of-historic-civil-rights-decisions-in-family-law/#respond Tue, 23 Mar 2021 07:00:00 +0000 https://prosecutebushcheney.org/the-common-law-examines-the-retreat-of-historic-civil-rights-decisions-in-family-law/ [ad_1] As the Supreme Court overturned laws that criminalized private behavior, other forms of legal and social regulation have taken their place, New York University law professor Melissa Murray argues of of “Common Law,” a podcast sponsored by the University of Virginia School. of the law. In Episode 5 of the show’s third season, Murray […]]]>


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As the Supreme Court overturned laws that criminalized private behavior, other forms of legal and social regulation have taken their place, New York University law professor Melissa Murray argues of of “Common Law,” a podcast sponsored by the University of Virginia School. of the law.

In Episode 5 of the show’s third season, Murray explains how the pattern repeats itself from the time the Supreme Court ruled that laws banning interracial marriage were unconstitutional in Love c. Virginia in 1967 to today’s LGBTQ rights cases.

“When a regulatory area closes, the interest in the regulation doesn’t dissipate or evaporate, it just moves to another location,” she says. “So, for example, after Magnet, it’s not like everyone in the South or in the country is like, “You know what? I really like interracial marriage. Like, all these reservations that I had, you know, five minutes ago, are gone.

Murray details the show on how white women in marriage or race relations face custody issues even when interracial marriages are legal. At the time Palmore vs. Sidoti was ruled by the Supreme Court in 1984, Linda Palmore had not seen her 6 year old daughter for a year. Palmore’s ex-husband Anthony Sidoti has challenged their custody arrangement after Palmore’s marriage to an African-American man. The Supreme Court ruled unanimously in favor of Palmore.

“I think what these cases show is that there are limits to what we can do just by removing the force of the criminal law,” Murray says. “There are other civil contexts that can be just as pernicious, even if they are not as blatantly violent as the criminal law.

Murray said family law has always meant more scrutiny of those involved in divorce or custody cases.

“Unless someone calls the police on you, the law really has nothing to say about how you live your family life, but when you divorce you expose yourself to some sort of public scrutiny by the law that is truly unprecedented. “

The same pattern has been repeated in LGBTQ rights cases, Murray said. When the Supreme Court decriminalized sodomy by Lawrence v. Texas in 2003 he paved the way for Obergefell vs. Hodges, in which a majority of 5 to 4 judges ruled that the right to marry is guaranteed by the Constitution. Subsequently, cases like Masterpiece Cakeshop Ltd. vs. Colorado Civil Rights Commission postpone the decision and promote “a sort of censorship” of same-sex marriage, she said.

“I think these kinds of episodes show that the law is flawed in dealing with issues of social change,” she said. “Sometimes law and society work in tandem, and there’s this kind of feedback loop where what is done in society is then reflected in law, or what is done in law then shapes how people interact on the ground. But I think what’s really clear here is that it can’t be one or the other. It really has to be both / and.

She added that interracial marriage rates are still “remarkably low”.

Murray is a leading expert in family law, constitutional law, reproductive rights and justice, and is co-host of the “Strict Scrutiny” podcast. Prior to earning her law degree at Yale, she obtained her undergraduate degree from the University of Virginia, where she was Jefferson Scholar and Echols Scholar. From March 2016 to June 2017, she served as Acting Dean of the University of California at the Berkeley School of Law, where she had been on faculty before joining NYU Law.

Hosted by Dean Risa Goluboff and Vice Dean Leslie Kendrick ’06, the show’s third season focuses on “Law and Fairness”.

While the themes of the first two seasons were temporal – the first focused on “The Future of Law” and the second on “When the Law Changed the World” – this season examines a variety of legal issues through time, wondering what fairness means and examining how it interacts with the law.

“Common Law” is available on Apple Podcasts, Stitcher, YouTube, Spotify, and other popular places where you can listen to podcasts. The show is produced by Emily Richardson-Lorente.

You can follow the show on CommonLawPodcast.com or Twitter at @CommonLawUVA.


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