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Blog Party: Share Your Blog Here, May 2019 via Learn Fun Facts

Growing a blog isn’t simple. It takes time, patience, and dedication before others would begin to notice your blog. While I can’t offer you a magic formula that would increase your blog’s popularity overnight, I can at least help you to promote your blog and find new readers. Here’s what you’ll need to […]

via Learn Fun Facts’ Blog Party: Share Your Blog Here, May 2019 — Learn Fun Facts

Can a Video be used as a Will? via Texas Estate and Probate Law

This column first appeared in the San Antonio Express News and other Hearst Newspapers on February 18, 2019. Dear Mr. Premack: My grandmother while in ICU stated that she wanted all she owned including her house to go to me and my bother in law. This was caught on cell phone video. She was later […]

via Can a Video be used as a Will? — Texas Estate and Probate Law

Duty to Protect / Correct Utilizing a Universal Standard of Principles (Part Two)

After determining which rights were violated (whether unintentional or outright fraud) utilizing a universal standard of principles and ULTRS (universal language for testimony and reports) to determine which duty was triggered, we can begin to rectify the situation.

This leads to two questions: 1. Where does this situation fall on the spectrum of fairness and, depending on where it falls, 2. What does that translate into in terms of specific procedures that must be followed?

Spectrum of Fairness

The court in Baker v. Canada (Minister of Immigration and Citizenship) listed four factors which help determine where on the spectrum of fairness a given decision lands. Note that the “legitimate expectations” of the person challenging the decision is a consideration, but it is considered before the factors listed below. The doctrine of “legitimate expectations” does not affect where the decision lands on the spectrum of fairness. Rather, it tells us some of the specific procedures that must be followed.

i. Nature of the decision being made and the process followed in making it: here, an assessment of how formal or informal the decision at hand is made. The more adjudicative the administrative decision maker’s nature and the process it follows (i.e. a formal decision), the more procedural safeguards necessary. The more operational or administrative (i.e. an informal decision), the less procedural safeguards necessary

ii. Nature of the statutory scheme and the terms of the statute pursuant to which the body operates: here, an assessment of the statutory scheme is made. If no further remedies or appeal are available under the statute, more procedural safeguards are necessary because the first level of the decision must be procedurally fair.

An assessment of the complexity of the decision being challenged is also made. If it is a relatively simple decision, it will fall at the lower end of the spectrum.

iii. Importance of the decision to the affected parties: here, an assessment of how important the outcome of the decision is to the parties affected. Where the decision is important to the affected parties, high procedural safeguards are necessary. For example, in Kane it was held that a high standard of procedural fairness is required when the right to continue in one’s profession/employment is at stake.

iv. Choices made by the decision-maker: here, an assessment of the power given to the administrative decision maker over its own procedures is made. If they have a lot of power, they are under a high procedural obligation and the decision is at the higher end of the spectrum.

Once these factors are considered, we end up with a point on the spectrum. The next question is: how does this translate into specific procedures?

Specific Procedures

The specific procedures required differs case by case. In Mavi, Justice Binnie stated that we ultimately need a fair process by considering what is relevant in the circumstances. There are general considerations that the court looks to when determining specific procedures:

  • The determination of specific procedures is a balance of fairness, efficiency and predictability of the outcome; and
  • The people affected by a decision have the opportunity to be heard and considered.

The doctrine of “legitimate expectations” can create specific procedures that must be followed where the administrative decision maker has made a certain representation or promise regarding specific procedures that will be followed.

An oral hearing is not necessarily required under the common law where a statute does not specify whether an oral hearing must be held. In Khan, the court held that, if an administrative decision maker is going to decide adversely against someone’s credibility and that person is affected by a decision of the administrative decision maker, an oral hearing must be held.

The enabling statute may state whether reasons for the decisions are required. An administrative decision maker who is subject to the SPPA must give reasons to the affected parties if they ask for them. At common law, Baker clarified that where a decision has important significance for an individual, where there is a statutory right of appeal or in other circumstances, some form of reasons should be required. In Newfoundland and Labrador Nurses’ Union, the court held that, at the procedural fairness stage, the only consideration is whether there is a duty to provide reasons. The adequacy of reasons is not a relevant consideration at this stage. In Baker, it was held that where some form of reasons are required, there is flexibility as to what those reasons generally look like. The courts are very flexible as to what counts as reasons.

Conclusion

At this stage of the analysis, there is a two step test. Determining what procedures are required after determining where on the spectrum a given decision lands is a contextual analysis.

My next blog entry will focus on procedural obligations arising under the constitution.

Anthony's Admin Law Blog

After determining that the duty is triggered, we must determine what that duty entails. That leads to two questions: where does this situation fall on the spectrum of fairness and, depending on where it falls, what does that translate into in terms of specific procedures that must be followed?

Spectrum of Fairness

The court in Baker v. Canada (Minister of Immigration and Citizenship) listed four factors which help determine where on the spectrum of fairness a given decision lands. Note that the “legitimate expectations” of the person challenging the decision is a consideration, but it is considered before the factors listed below. The doctrine of “legitimate expectations” does not affect where the decision lands on the spectrum of fairness. Rather, it tells us some of the specific procedures that must be followed.

i. Nature of the decision being made and the process followed in making it: here, an assessment of…

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Procedural Obligations: Duty to Protect via Title 17 Utilizing a Universal Standard of Principles (Part One) via Anthony’s Blog

In my last blog entry, I discussed procedural obligations arising from statute and soft law. What happens when those documents are silent or ambiguous? When a statute is silent or leaves gaps with respect to procedure, the common law steps in to fill those gaps. The other fundamental principle is that to override the rules […]

via Procedural Obligations: Common Law (Part One) — Anthony’s Admin Law Blog

Payless ShoeSource expected to close all of its U.S. locations as part of largest retail liquidation – MarketWatch

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WATCH | Payless experiment shows people will pay more for brand name

Payless ShoeSource is shuttering all of its 2,100 remaining stores in the U.S. and Puerto Rico, joining a list of iconic names like Toys R Us and Bon-Ton that have closed down in the last year.

The Topeka, Kansas-based chain said Friday it will hold liquidation sales starting Sunday and wind down its e-commerce operations. All of the stores will remain open until at least the end of March and the majority will remain open until May.

The debt-burdened chain filed for Chapter 11 bankruptcy protection in April 2017, closing hundreds of stores as part of its reorganization.

At the time, it had over 4,400 stores in more than 30 countries. It remerged from restructuring four months later with about 3,500 stores and eliminated more than $435 million in debt.

The company, founded in 1956, said that the liquidation doesn’t affect its company’s franchise operations or its Latin American stores, which remain open for business as usual. It lists 18,000 employees worldwide.

Shoppers are increasingly shifting their buying online or heading to discount stores like T.J. Maxx to grab deals on name-brand shoes. That shift has hurt traditional retailers, even low-price outlets like Payless. Heavy debt loads have also handcuffed retailers, leaving them less flexible to invest in their businesses.

But bankruptcies and store closures will continue through 2019 so there’s “no light at the end of the tunnel,” according to a report by Coresight Research.

Before this announcement, there have been 2,187 U.S. store closing announcements this year, with Gymboree and Ascena Retail, the parent of Lane Bryant and other brands, accounting for more than half the total, according to the research firm. This year’s total is up 23 percent from the 1,776 announcements a year ago. Year-to-date, retailers have announced 1,411 store openings, offsetting 65 percent of store closures, it said.

Google News

Payless ShoeSource expected to close all of its U.S. locations as part of largest retail liquidation

Payless ShoeSource will close all of its approximately 2,100 stores in the U.S. and Puerto Rico as part of the largest retail liquidation ever, the Wall Street …

View full coverage on Google News

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Should Witness ‘Flipping’ Be Illegal? — via Timothy T. Brock

FindLaw Blotter - The FindLaw Crime and Criminals Blog

 

Should Witness ‘Flipping’ Be Illegal?

Even if you’re not a criminal defense attorney, watching a couple episodes of “Law and Order” will probably introduce you to the concept of police and prosecutors going after “small fish” in order to get the “big fish,” criminally speaking. This process involves lower level suspects or defendants exchanging testimony against higher level targets for lighter sentences or immunity.

The practice of flipping has become especially prominent in the investigation headed Robert Mueller looking into possible collusion between Russia and the Donald Trump presidential campaign. In fact, in the wake of news that Trump longtime lawyer and “fixer” Michael Cohen would be cooperating with federal prosecutors, the president decried the practice of witness flipping, claimed it encourages criminal defendants to unfairly “make up stories,” and asserted that “it almost ought to be illegal.”

Flipping may have its issues, but should it be outlawed?

The Force of Flipping

Much of the incentive to cooperate with law enforcement comes from the amount of power and discretion prosecutors have in determining both criminal charges and the possible sentences for convictions or guilty pleas. As criminal defense attorney Ken White pointed out at the Washington Post, “Federal prosecutors could flip Cohen because they had broad discretion to charge him with dozens of crimes or none; they alone decided how sweet a deal to offer and how ugly the alternative was.”

When faced with myriad possible criminal charges and years or decades behind bars (not to mention days and nights in jail until their case is resolved), defendants often feel they have little option but to give prosecutors any information they can, even if that information isn’t always accurate.

It doesn’t help that many of those targeted for flipping lack the financial resources to mount an adequate defense, and public defenders, too, are often underfunded and overworked. The choice of whether to flip or stay quiet and fight criminal charges is, more often than not, no choice at all.

Running on Flipping and Reform

“The criminal justice system,” White asserts, “runs on flipping defendants. If we want fairness for both the cooperating defendants and the people they implicate — if we want faith in the results — we need serious reform.”

Reform will almost certainly not include President Trump’s suggestion that flipping be outlawed, better funding for criminal defense and more transparency and consistency in charging and sentencing can be positive steps to, if not eliminating flipping, ensuring fairness for both those offering evidence against other criminal targets and those against whom that evidence will be used.

Related Resources:

via Should Witness ‘Flipping’ Be Illegal? — timothytbrock

Scholarly Resources Services team has acquired a bunch of new and exciting eBooks from various collections

Are you a lecturer, teacher or researcher in Law? You’re in luck! Our Scholarly Resources Services team has acquired a bunch of new and exciting eBooks from various collections. These include:

Law with Hart?

An International Perspective (Law)

There are 60 new titles in the Brill Martinus Nijhoff International Law eBook collection 2017. Here are some examples:

Humanitarian Law

There are 45 new titles in the Human Rights and Humanitarian Law eBooks 2017 Collection from Brill Nijhoff. Some good examples are: