Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Friday, July 24, 2015

Law Professor Survey For Law Review Article

Professor Cynthia Bond writes to request that law professors answer a survey about popular culture in the law school classroom. A cover letter from Professor Bond and a link to her survey are below.

Mitchell H. Rubinstein


Greetings Law Teacher Colleagues:

 I am working on an article this summer on uses of popular culture in the law school classroom.  I am defining popularculture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).

 To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area.  If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:

 Thanks in advance for your time and have a wonderful rest of summer!

 Cynthia Bond

The John Marshall Law School

Chicago, IL


July 24, 2015 in Law Professors, Law Review Articles | Permalink | Comments (0)

Thursday, July 23, 2015

Best Small Cities For Recent Law School Graduates

Good Call recently ranked the top 100 best small cities for recent law school graduates. The top 10 are reproduced below. Their web site is full of helpful information and is available here.

Mitchell H. Rubinstein

Hat Tip: Carrie Wiley


I. The Data

Below are the top 100 small cities for law graduates, out of a total list of 539:

RankCity (MSA)GoodCall ScorePopulationAverage Lawyer SalaryHousing Affordability IndexAmenities per 1,000 Housing UnitsEmployment Attractiveness Rank
1 Washington NC 487.25 47,585 $130,920 7.91% 2.37 20
2 Carlsbad-Artesia NM 474.9 56,395 $119,550 7.56% 2.91 41
3 Thomaston GA 463.75 26,256 $102,900 8.72% 8.38 57
4 Roswell NM 461.85 65,878 $119,550 7.09% 1.93 43
5 Laconia NH 451.4 60,305 $117,850 12.36% 9.39 10
6 Shelby NC 449.55 97,076 $105,680 8.72% 3.17 46
7 Barre VT 446.8 58,998 $106,700 13.00% 15.20 4
8 Canton IL 442.85 36,007 $99,160 9.18% 2.72 18
9 Fairbanks AK 438.2 99,357 $112,930 13.82% 6.31 6
10 Cheyenne WY 437.25 96,389 $109,540 11.01% 1.48 2

July 23, 2015 in Law Students, Lawyer Employment | Permalink | Comments (0)

Best Large Cities For Recent Lawyers

Good Call recently ranked the best large metro areas for new law school graduates. The top 10 are copied below, but their web site ranked the top 100 and provides additional information, here.

Hat Tip: Carrie Wiley

Mitchell H. Rubinstein

I. The Data

RankMetro AreaGoodCall ScorePopulationAverage Lawyer SalaryHousing Affordability IndexAmenities per 1,000 Housing UnitsEmployment Attractiveness Rank
1 New York-Newark-Jersey City, NY-NJ-PA 279.10 20,092,883 $148,140 10.04% 2.74 5.00
2 Bridgeport-Stamford-Norwalk, CT 278.30 945,438 $141,010 10.97% 5.21 22.00
3 Pittsburgh, PA 277.45 2,355,968 $122,220 7.48% 3.08 29.00
4 Hartford-West Hartford-East Hartford, CT 271.65 1,214,295 $120,900 10.00% 3.01 14.00
5 Nashville-Davidson–Murfreesboro–Franklin, TN 264.95 1,792,649 $107,440 9.85% 4.44 1.00
6 Des Moines-West Des Moines, IA 260.15 611,549 $109,650 9.09% 3.12 46.00
7 Philadelphia-Camden-Wilmington, PA-NJ-DE-MD 259.25 6,051,170 $126,100 10.00% 2.65 62.00
8 St. Cloud, MN 258.35 192,418 $107,070 8.56% 5.36 19.00
9 Houston-The Woodlands-Sugar Land, TX 256.40 6,490,180 $150,720 7.78% 1.52 13.00
10 San Francisco-Oakland-Hayward, CA 255.90 4,594,060 $150,290 11.04% 2.16 4.00

July 23, 2015 in Law Students, Lawyer Employment | Permalink | Comments (1)

Monday, July 20, 2015

Dot Law'ers Are Coming -- in October

The internet is about to get a whole lot easier to navigate-well, maybe. Come October, their are going to be able to be many more internet domains.  Of most relevance to lawyers is the ".law address." 

An article about this from Findlaw is available here. The article states:    

Soon, that number will include .law, for those working in the .legal industry. Minds + Machines, an Internet registration company, is the exclusive licenser of .law domains, along with .london, .beer, and plenty more. Beginning July 30th, trademark holders will be able to register .law domains through Minds + Machines, according to the ABA Journal. 

Those names will then be available to buy in early October. To reserve a domain name, lawyers and legal professionals should file a registration with the company. Trademark holders have priority, but if they have not expressed interest once the domains are available for sale, could be bought up by a third party.

Mitchell H. Rubinstein

July 20, 2015 in Announcements, Law Firms, Misc., Legal, Misc., Non-Legal | Permalink | Comments (0)

Thursday, July 16, 2015

DOL Issues Administrator Interpretation on Employee Status

On July 15, 2015, Wage and Hour Administrator David Weil issued Administrator Interpretation No. 2015-1 entitled "The Application of the Fair Labor Standard's Act's "Suffer or Permit" Standard in the Identification of Employees Who Are Misclassified as Independent Contractors",  Download DOL

There are no surprises here. The DOL simply summarized the applicable case law that applies the multiple factor economic reality test as opposed to the common law right to control test to determine employee status:

Ultimately, the goal is not simply to tally which factors are met,  but to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor). The factors are a guide to make this ultimate determination of economic dependence or independence.... The Supreme Court "has consistently construed the Act 'liberally to apply to the furthest reaches consistent with congressional direction,' recognizing that broad coverage is essential to accomplish the [Act's] goal. . . ."

The DOL makes no mention of the fact that there are at least two other tests utilized in other employment employment statutes (a hybrid economic reality test and common law right to control test; statutory purpose test) or any of the scholarly literature concerning employee status. 

While the DOL was focusing on the FLSA and on some level it is understandable why they simply focused on the economic reality test, I believe that some mention of these other tests was warranted because employers should not assume that simply because an individual is an employee under the FLSA does not mean that he or she is going to be an employee under Title VII, where for example, a hybrid test is often utilized.

Several years ago, I wrote a law review article which addressed many of these issues. Employees, Employers and Quasi Employees. 

Mitchell H. Rubinstein

July 16, 2015 in Employment Law, Federal Law, FMLA, Labor Law | Permalink | Comments (0)

Monday, July 13, 2015

Shape up, or you are going to lose your job" and "are you ok? Not Harassment

I bring  Hernandez v. Weil Cornell Medical Center, ___Misc. 3d___ (Bronx Co. July 6, 2015) to your attention because the court held that comments such as "shape up, or you are going to lose your job" and "are you ok? do not state a cause of action for intentional infliction of emotional distress or disability discrimination under New York State and City law.  The court reasoned:

The defendant has sufficiently demonstrated that the plaintiff did not plead any allegations in her complaint that would support her claims of discriminatory working conditions and hostile work environment. Statements by the defendant's employee such as, "shape up, or you are going to lose your job" and "are you ok?" do not amount to conduct that is extreme or outrageous. See Witchard v. Montefiore Medical Center, 103 AD3d 596 (1st Dept. 2013). The Appellate Division has held that an employer's statements that it would fire a disabled employee were not so pervasive as to establish a hostile work environment in violation of New York State Human Rights law.Witchard v. Montefiore Medical Center, (supra). The Appellate Division went on to affirm the employer's motion for summary judgment dismissing the complaint, in part, because the complaint lacked sufficient allegations to prove that the work environment was hostile.

Likewise, the act of questioning an employee's work cannot be fairly characterized as harassment or extreme behavior. Without more evidence, the statements and behavior of Weill Cornell's employees cannot be seen as extreme. Ferrer v. New York State Div. of Human Rights, 82 AD3d 431 (1st Dept. 2011) (finding that the specific conduct alleged by the petitioner in the complaint, if true, is legally insufficient to establish that the workplace was "permeated with discriminatory intimidation, ridicule and insult [and] isolated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment").

Mitchell H. Rubinstein

July 13, 2015 in Discrimination Law, New York Law | Permalink | Comments (0)

Friday, July 10, 2015

Federal Judge Discontinues Blog

Steve Klepper at Maryland Appellate Blog reports this week that Senior U.S. District Judge Richard Kopf has discontinued his blog, Hercules and the Umpire.  Klepper's report highlights in his report the controversies that have followed Judge Kopf and his blog in recent times.

Craig Estlinbaum

July 10, 2015 in Blogs, Legal, Ethics, Judges | Permalink | Comments (0)

Monday, July 6, 2015

New York Adopts Uniform Bar Examination

In case you missed it (I did), New York recently announced that it will utilize a uniform bar examination that is in use in 15 states. A New York Times article about this change is available here

I am not so sure that this is a good idea. One of the flaws  in legal education today is that often times courses are just generalist type classes. Students may be reading cases from California in one lesson and reading New York cases in another. As a result, students graduate without having any grasp of the law in any particular state. Now, I recognize that there are exceptions-particularly with federal law, but even then the focus is rarely on the law of the circuit. 

This is just rehashing the old debate of national vs. regional law schools. Most students want to go to "national law schools." I also understand that many students may not practice in the state where their law school is located. But, I never believed that this makes much sense.  

There is no perfect solution. My view is that law schools should concentrate on the state law where most of their graduates practice. Therefore, it appears to follow that a bar examination based upon state law,  at least in part, makes sense.

Mitchell H. Rubinstein

July 6, 2015 in Law Schools, Law Schools, News, Law Students | Permalink | Comments (0)

Friday, July 3, 2015

New York City’s Office of Administrative Trials and Hearings is seeking individuals to serve on its Contract Dispute Resolution Board panels

New York City’s  Office of Administrative Trials and Hearings [OATH} is accepting applications from qualified persons who would like to serve on Contract Dispute Resolution Board (CDRB) panels.
Each CDRB panel consists of an OATH ALJ, as chair, a representative of the Mayor’s Office of Contract Services, and a third member selected from a pre-qualified roster of individuals, established and administered by OATH, who has appropriate expertise and is unaffiliated with the City.
Mitchell H .Rubinstein

July 3, 2015 in Lawyer Employment, Lawyers | Permalink | Comments (1)

Thursday, July 2, 2015

Captains Are Not Supervisors

The Board recently held in Cook Inlet Tug & Barge, Inc., 362 NLRB No. 111 (2015),  that captains of tugboats are not supervisors.  Despite arguments by the company that the captains are supervisors because they exercise assignment authority on the boat, the Board found that any instructions given by the captains were not the result of “independent judgment” and therefore could not be an “assignment in the statutory sense.”  Instead, the alleged assignments by the captains were “ad hoc instructions,” such as closing a hatch, that naturally arise out of having one deckhand accompany a captain on a boat.

As you could expect, Member Miscimarra dissented, asserting that the captains were “ultimately accountable for everything that happens on [the boats].”

 This case may have implications in other industries.

Mitchell H. Rubinstein



July 2, 2015 in NLRB | Permalink | Comments (1)

Saturday, June 27, 2015

New Edition of Randall & Randall The Discipline Book

The Randalls just updated their treatise entitled  The Discipline Book.  The 2015 edition is available in both a softcover and an e-book format.

The URL is

Both versions are now 458 pages to accommodate the softcover book format. The authors substituted summaries for the "full text" of the decisions set out in the earlier editions and added new case material. There are "links" to full text of in the e-book version and "text" URLs in the softcover version.

This book remains "the" treatise on public sector employee discipline in New York State and I could not imagine any employer or union side practice without it. The book outlines the Civil Service Law, Section 75 cases, Education Law 3020-a cases as well as a whole host of other cases. It is basically an A-Z book on discipline.

This years edition is quite easy to utilize in that the table of contents is updated. Additionally information, including instructions about purchasing it, can be found in the link above.

Mitchell H. Rubinstein 

June 27, 2015 in Book Reviews, Books | Permalink | Comments (0)

Wednesday, May 27, 2015

Labor Art Exhibition

St. Louis labor lawyer Bruce Feldacker is a collector of labor art. His collection is described here.  From May 24, 2014 through August 2, 2015, his collection will be on display at the Cedarhurst Museum in Mt. Vernon, Illinois. Details are available by clicking  Download Press Release Labor Art Exhibit-1_1

If your in the area this summer, for those interested in labor history, this looks like a wonderful thing to do.

Mitchell H. Rubinstein


May 27, 2015 in Labor Law, Misc., Non-Legal | Permalink | Comments (0)

Wednesday, May 13, 2015

Goldman and Reyes: Competitive Keyword Advertising and Legal Ethics

I am fascinated how new technology challenges existing legal and judicial ethics rules and canons.  An article forthcoming in University of Illinois Law Review, written by Eric Goldman and Angel Reyes, III titled, "Regulation of Lawyers’ Use of Competitive Keyword Advertising" addresses just such an issue.  Here is the abstract:

Lawyers have enthusiastically embraced search engine advertisements triggered by consumers’ keywords, but the legal community remains sharply divided about the propriety of buying keyword ads triggered by the names of rival lawyers or law firms (“competitive keyword advertising”). This Essay surveys the regulation of competitive keyword advertising by lawyers and concludes that such practices are both beneficial for consumers and legitimate under existing U.S. law - except in North Carolina, which adopted an anachronistic and regressive ethics opinion that should be reconsidered.

The article is available at SSRN here.  Josh King, blogging at Socially Awkward, describes competitive keyword advertising this way: "1.  “Buy” the name of your competitor from Google.; 2.  When potential clients search Google for that competitor, your ad appears.  3.  Profit!!"  That's easier to understand, I guess, though I imagine there must be something more between steps 2 and 3.

Eric Goldman has written a shorter essay about legal ethics and competitive keyword  advertising in Forbes.  Florida has issued an ethics opinion approving the practice -- North Carolina contra.

Hat Tip to Carolyn Elfant at My Shingle, who offers her own take on the practice.

Craig Estlinbaum

May 13, 2015 in Ethics, Law Review Articles, Technology | Permalink | Comments (0)

Tuesday, May 12, 2015

Chemerinsky on the Uniform Bar Exam

In an LA Times editorial yesterday, Erwin Chemerinsky, Dean of Cal-Irvine Law, urges California to adopt the standardized Uniform Bar Exam.  New York has recently done the same.

Craig Estlinbaum

May 12, 2015 in Bar Association Matters, Law Review Ideas, Law Students, Lawyer Employment, Lawyers | Permalink | Comments (0)

Monday, May 11, 2015

Book Review Highlight; Clark, Cross-Examination Handbook

Professors Clark, Dekle, Sr. and Bailey just published the second edition of Cross Examination Handbook.  We reviewed the first edition of this book and this edition is even better. 

I have cross examined thousands of witnesses over my 29 years of labor litigation. I can say without qualification that cross examination is particular skill which is not easily mastered. Even the most experienced lawyers often have difficulty mastering this skill.

As the title implies, this book is a handbook. It is a how too book and is designed to teach the student how to impeach a witness and how utilize a witnesses prior inconsistent statements as well as a host of of other issues. It provides concrete strategies for overcoming obstacles students and lawyers commonly face in cross examination.  

This book should be required reading in any class on trial advocacy and many lawyers should maintain a copies in their library as well.

Mitchell H. Rubinstein  

May 11, 2015 in Book Reviews | Permalink | Comments (0)

Book Review Highlight Berger, Trial Advocay

Professors Berger, Mitchell and Clark recently published the 4th edition of Trial Advocacy

As the title states, this book focuses on trial advocacy. It is designed to help students learn to "think like lawyers." It focus on trial preparation and management.  The book itself is divided into  14 chapters. Each chapter covers a separate trial subject area—persuasion, jury selection, opening statement, objections, etc.  Each chapter presents a theoretical and practical approach to the particular skill that is the subject of that chapter, provides illustrations of practice as applied to hypothetical situations, and offers a series of practical and strategic pointers in the subject area.  Most of the assignments involve role play.

We have reviewed this book before and quite simply, the authors have "done it again." Professors looking to review a book on Trial Advocacy cannot do much better than this one. Additionally, the book is so well written, that practicing attorneys would likely find this book useful as well.

Mitchell H. Rubinstein


May 11, 2015 in Book Reviews | Permalink | Comments (0)

Wednesday, May 6, 2015

Savannah: Walking Dead Symposium

Alfred Brophy  at The Faculty Lounge has posted information about a call for papers for Savannah Law Review's September 15-16, 2015, symposium, "The Walking Dead."  From Brophy's post:

The Walking Dead Colloquium will provide a forum to discuss the “shadowy” legal interpolation of the dead on the living and explore both its positive and negative ramifications in an effort to strike a pluralistic balance between the law of past, present, and future.  Thematic examples may include legal recognition of the dead’s wishes affecting real property and intellectual property; regulation of pandemics from yellow fever to Ebola; constitutional analysis relying upon views of the dead—the Framers—versus a “living” Constitution; and other myriad examples of the dead influencing law: the death penalty; desecration laws; the Right to Die Movement; posthumous evidentiary privileges; wrongful death and rights of survivorship; regulation of corpses, organ donation, and burials; stigma harms to real property inhabited by ghosts; and post-apocalyptic justice.

The information also appears at  Calling All Papers!.

Craig Estlinbaum

May 6, 2015 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Tuesday, April 28, 2015

Judge Admonished for Facebook Post

Monday, April 27, 2015

Roberts Court at 10: The Fourth Amendment

On September 29, 2005, The United States Senate confirmed then appellate court judge John Roberts to be Chief Justice of the United States.  The current October 2014 Term for that court marks the tenth term completed with Roberts at the helm.  We can therefore expect a flurry of ten year reviews this summer and beyond.  The Constitutional Accountability Center has posted "Roberts at 10: Roberts and the Fourth Amendment:  A Mostly Pro-Government Vote with Some Important Exceptions" at the CAC's website.  The paper is authored by Briane Gorod.

Craig Estlinbaum

April 27, 2015 in Constitutional Law, Criminal Law, Supreme Court | Permalink | Comments (1)

Friday, April 17, 2015

Judge's Facebook Comments Raise Ethics Questions

From the ABA Journal earlier this week:

A judge in Louisville, Kentucky, says he was cautioning parents about racial stereotypes when he criticized a victim-impact statement on Facebook.

[The judge}...didn’t identify the crime victims by name when he wrote about the statement, which claimed that a home invasion and robbery had left a young girl with a fear of black men, the Courier-Journal reports in a story reprinted by USA Today.  The girl was 3 years old at the time of the crime, committed by two African-American men, in March 2013.

The ABA Journal's story goes on to provide comments from law professors Ronald Rotunda (Chapman), Jeffrey Shaman (DePaul) and Charles Gey (Indiana) on the ethics considerations rising from the judge's Facebook comments

The use of social media by judges is fraught with ethical traps.  Whether the judge's comments in this case cross the line or not will depend on the facts and the specific language in Kentucky's judicial ethics canons.  Kentucky, as it happens, is one of the few states with a judicial ethics opinion regarding a judge's social media participation

The National Center for State Courts has compiled a list of states that have, through their respective advisory or ethics committees, issued judicial ethics opinions relating to judges using social media.

See Also:

Craig Estlinbaum

April 17, 2015 in Ethics, Judges | Permalink | Comments (0)