Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Thursday, October 23, 2014

Effective Plea Bargains for Noncitizens

I have posted Effective Plea Bargains for Noncitizens on SSRN.  Here is the abstract:

In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise non-citizen clients regarding the deportation risks associated with a guilty plea. The Court held in that case that a defendant's guilty plea may be involuntarily made when defense counsel fails to advise the client about those deportation risks. Trial judges accepting guilty pleas from criminal defendants have a duty to confirm the defendant makes the plea voluntarily and intelligently. Judges make this determination through the plea colloquy -- a series of admonishments and questions with the pleading defendant done prior to accepting the plea. Padilla at a minimum requires trial judges to inquire whether or not the defendant is a non-citizen, and if so, whether the defendant has received the correct advice regarding the guilty plea's immigration consequences. The judge's failure to do so may result in a conviction tainted by ineffective assistance or supported by a plea not voluntarily and intelligently made.

This Article suggests trial judges should take affirmative steps prior to accepting a non-citizen's plea to reveal whether counsel has provided relevant and correct immigration advice to the defendant. Part I discusses Padilla's facts, rationale and holding, Part II discusses the requirement for a voluntary and intelligently made guilty plea in modern plea bargain jurisprudence and Part III discusses the process for obtaining post-conviction relief for Sixth Amendment violations under Strickland v. Washington's ineffective assistance standard. Part IV closes by discussing best practices for trial judges and counsel to safeguard a non-citizen's rights while developing a record that anticipates post-conviction Sixth Amendment claims.

I presented this paper at an immigration law symposium hosted by The Scholar: St. Mary's Law Review on Race and Social Justice law in April.  The students and faculty hosting the event were top notch and I appreciated greatly the chance to meet and work with them all.

Craig Estlinbaum

October 23, 2014 in Conferences, Faculty, Constitutional Law, Criminal Law, Law Review Articles | Permalink | Comments (0)

Wednesday, October 22, 2014

Lander on Adjuncts

David Lander, an adjunct professor at St. Louis, is guest-blogging at The Faculty Lounge.  So far he has posted, in order of publication:

I have two initial responses:

Lander writes in the first post, "And if a school is looking for a quick way to cut a few thousand dollars from its expense budget, reduction in the number of adjuncts may seem a handy way to find that reduction while asking "underutilized" tenured faculty to teach the courses the adjuncts had been teaching."

This is true, but aren't greater saving realized by not hiring a tenure track professor and using two adjuncts to teach elective classes otherwise being taught by full-time staff, leaving required and bar classes for the the full-timers?  At many adjunct pay scales, this approach would hold greater appeal to the bottom line.

Lander writes in his second post, "One very important concern is the effect of the dependence on adjuncts on scholarship and publications. Although many adjuncts do write articles, nearly all of the true legal scholarship is done by full-time faculty and very little is done by adjuncts. This lack of scholarship has many negative implications...Research and publications will suffer in any area where full time faculty is replaced by adjuncts. Areas which make major use of adjuncts such as trial practice, bankruptcy, and sports and entertainment law have probably reached a tipping point where the amount and quality of research is significantly affected by the mix of adjuncts and full-time faculty working in these fields."

I would certainly agree that in the law school arena adjuncts on the whole are less productive scholars than are full-time professors on the whole, if journal articles and books measure "true legal scholarship."  The question, though, is this: How many fully tenured professors are no longer productive scholars (and here)?  It seems unfair to criticize adjuncts for not contributing scholarship when tenured professors - those best situated to make scholarly contributions - do not themselves write.

I am looking forward to more from Mr. Lander during his time at The Faculty Lounge.

Craig Estlinbaum

October 22, 2014 in Adjunct Information in General, Law Professors, Law Schools | Permalink | Comments (0)

Tuesday, September 30, 2014

NYS Dep't. of Labor applies right to control test to determine employee status

Dunno v. Commissioner of Labor, ___A.D.3d___(3d Dep't. Sept. 25, 2014), is an interesting case. The court held that a security guard was an employee and not an independent contractor. The court applied the common law right to control test, reasoning:

 In making such a determination, the Board considers whether the putative employer exercised control over the [*2]results produced or the means used to achieve those results, with the means being the more important consideration (see Matter of McCollum [Fire Is. Union Free School Dist.—Commissioner of Labor], 118 AD3d 1203, 1204 [2014]; Matter of Joyce [Coface N. Am. Ins. Co.—Commissioner of Labor], 116 AD3d 1132, 1134 [2014]). Here, the testimony of both claimant and Anthony Stone, the principal of ASISS, established that claimant completed an application for employment and was hired at a rate of pay established exclusively by Stone. ASISS assigned claimant to a specific location, established his hours of work and covered him under its workers' compensation insurance. Furthermore, it provided him with an employee code of conduct and required him to call in to an automated system at the beginning and end of each shift, to sign a time sheet and to submit incident reports. The client was not informed that claimant was an independent contractor, claimant was required to request time off two weeks in advance and ASISS would find a replacement if claimant was unavailable for his shift. Claimant was required to adhere to the company dress code by wearing a dark suit and tie, as well as a company lapel pin, while on duty. Furthermore, any complaints about claimant's performance would be handled by ASISS and claimant would receive his pay even if the client did not pay ASISS. Accordingly, while there was other evidence in the record suggestive of an independent contractor relationship, we find that substantial evidence supports the Board's determination that claimant was an employee (see Matter of Anwer [Exclusive Fragrance & Cosmetics, Inc.—Commissioner of Labor], 114 AD3d 1114, 1115 [2014]; Matter of Lamar [Eden Tech., Inc.—Commissioner of Labor], 109 AD3d 1038, 1039 [2013]).

This decision is highlighted because it illustrates some of the factors courts examine in determining employee status. However, the decision is not particularly well written because it merely stated that other evidence in the record supported the opposite conclusion (that the individuals were independent contractors) and the court did not weigh this evidence.

Mitchell H. Rubinstein

September 30, 2014 in Employment Law | Permalink | Comments (2)

Monday, September 29, 2014

20 Best Jobs

 Glassdoor, the a jobs and career community, has identified 20 of the highest rated jobs for work-life balance. This list was compiled based entirely on employee feedback shared on Glassdoor over the past year.  The full lis is available here

Number 1 is Date Scientist. Interestingly, Law Clerk ranked number 11. Attorneys did not make the top 20. No surprise here.

Mitchell H. Rubinstein

September 29, 2014 in Current Affairs, Lawyer Employment | Permalink | Comments (1)

Friday, September 26, 2014

What Do Education Lawyers Do?

The National School Board's Association has a web page dedicated to careers in Education Law which readers may find of interest, here.  They describe what school board lawyers do in part, as follows:

Advisers Guiding School Boards on Legal Matters

School lawyers are employed by school boards to represent their school districts in legal matters. These lawyers need to wear many hats. Their job duties include offering advice on legal and policy matters, researching legal issues, and representing the school district in litigation matters.

Why do school districts need lawyers?

School boards and district staff must deal with legal issues daily. A school board attorney helps district officials to follow the web of state and federal regulations affecting schools, and to avoid costly litigation. When litigation is necessary, a school attorney advocates for the school board before courts and administrative bodies. - See more at: https://www.nsba.org/services/council-school-attorneys-cosa/what-school-lawyers-do#sthash.lcA6RFaf.dpuf

Mitchell H. Rubinstein

September 26, 2014 in Education Law, Lawyer Employment | Permalink | Comments (0)

School Law Jobs

Follow this link 

September 26, 2014 | Permalink | Comments (0)

Sunday, September 14, 2014

Flextime As Reasonable Accommodation

DCCir2
Solomon v. Vilsack
, ___F.3d___(D.C. Cir. Aug. 15, 2014), is an interesting case. The D.C. Circuit followed other circuits holding that the Department of Agriculture should have considered a flextime schedule for an employee under treatment for depression.

Mitchell H. Rubinstein

September 14, 2014 in Discrimination Law | Permalink | Comments (1)

Friday, September 12, 2014

Call For Papers

The  Journal of Law and Health's Annual Symposium at Cleveland Marshall Law School has issued a call for papers which provides in part:

You are invited to submit an Article for possible inclusion in the Journal of Law & Health’s Annual Symposium: The Social, Ethical, and Legal Consequences of Sports-Related Brain Injuries. The Journal of Law & Health is a student-run publication dedicated to publishing innovative articles that offer diverse perspectives on the intersection between law, health, and medicine.

            The selection of the Symposium topic was a result of the myriad of new research on the prevalence of traumatic brain injuries in sports and the long-term health consequences that result from head injuries. Further, high profile legal disputes, such as the NFL’s $765 million settlement with retired players, has thrust the discussion of brain injuries in sports into the legal arena as well. The Symposium aims to facilitate a well-rounded discussion between, judges, legislators, academics, and medical professional on the social, ethical, and legal issues that may occur as more research becomes available on brain injuries in sports. 

Additional information and submission instructions can be found by clicking  Download Call for Papers Final

Mitchell H. Rubinstein

September 12, 2014 in Law Review Articles | Permalink | Comments (0)

Wednesday, August 27, 2014

BA in Law

The University of Arizona has become the first college in the nation to offer a BA in law. A Findlaw article about the program, which still requires the student to attend law school if they want to be a lawyer, is available here. A press release from the school is available here

Personally, I think it is a good idea. It may give a student some idea whether they really would like to become a lawyer. I also think that legal concepts are important in a whole host of fields where people work with lawyers as clients. I am thinking of accountants, insurance agents, real estate brokers and even labor relations professionals.

Mitchell H. Rubinstein

August 27, 2014 in Colleges, Information | Permalink | Comments (0)

Tuesday, August 26, 2014

Call For Papers National Institute of Collective Bargaining

The National Institute of Collective Bargaining has issued a call for papers. Abstracts are due Oct. 17, 2014 and the conference is set for April 19-21, 2015 in NYC at CUNY. The theme is thinking about tomorrow: collective bargaining and labor relations in higher education. 

I have been to this conference and it is wonderful. Addtional information can be found here.

Mitchell H. Rubinstein

August 26, 2014 in Conferences, CLE, Conferences, Faculty | Permalink | Comments (0)

BLS: LABOR FORCE BY RACE AND ETHNICITY [19 August 2014]

The BLS just published a report researchers may find of interest and very useful. As the report states:

This report describes the labor force characteristics and

earnings patterns among the largest race and ethnicity

groups living in the United States—Whites, Blacks, Asians,

and Hispanics—and provides detailed data through a set

of supporting tables. The report also includes a limited

amount of data for American Indians and Alaska Natives

and for Native Hawaiians and Other Pacific Islanders,

people who are of Two or More Races, detailed Hispanic

ethnicity and, for the first time, detailed Asian groups.

Among the interesting statistics, Whites make up 79% of the workforce while Blacks and Asians make up 12% and 6%. The report can be downloaded at no charge here.

Mitchell H. Rubinstein

 

 

 

August 26, 2014 in Information, Legal Research, Misc., Legal, Misc., Non-Legal | Permalink | Comments (0)

Tuesday, August 19, 2014

Best Paying Jobs of 2014

Yahoo Finance posted an interesting article about the best paying jobs of 2014. They report on a survey done by the job portal Careercast.com which utilized data from the BLS. Below is a useful chart published by Yahoo:

4e101940-22f4-11e4-a6ff-691d2770497d_BN-EB179_topjob_G_20140811151115

 

August 19, 2014 in Information, Misc., Non-Legal | Permalink | Comments (0)

Wednesday, August 6, 2014

Randall, A Reasonable Penalty Under The Circumstances

Harvey Randall just updated his wonderful treatise on NYS Public Employee Discipline entitled "A Reasonable Penalty Under The Circumstances." We reviewed this book before and it just gets better and better. Every lawyer who practices in this area should have a copy of this book on his or her desk. 

The publishers description is as follows:

A Reasonable Disciplinary Penalty Under the Circumstances is a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in instances where the employee has been found guilty of misconduct or incompetence. It is available in two formats - as a large, paperback print edition, and as an ebook (PDF). 

Offenses considered in the book run from A [Abandoning a post without authorization] to Z [Zero drug tolerance policy violation]. 

The material in the was developed specifically for use by administrators, union officials, attorneys, arbitrators and others engaged in disciplinary actions involving public officers and employees serving with New York State as the employer and employees of its political subdivisions pursuant to the State's Civil Service Law, its Education Law, contract disciplinary grievance procedures negotiated pursuant to Article 14 of the Civil Service Law [the Taylor Law] and other relevant statutes, rules and regulations. 

It is also a valuable resource for those involved in disciplinary actions involving public officers and employees serving with other jurisdictions.

It can be purchased here. A free excerpt from the book can be found here

Mitchell H. Rubinstein

 

August 6, 2014 in Book Reviews, New York Law, Public Sector Employment Law | Permalink | Comments (0)

Monday, August 4, 2014

Instructor at Yoga School Is An Employee

Matter of Yoga Vida v. Commissioner of Labor, ___A.D. 3d___(3d Dep't. July 31, 2014), is an interesting case.  In the context of Unemployment, the court had to decide whether a Yoga instructor was an employee. In concluding that she was, the court applied the right to control test and reasoned:

                Classes were held in Yoga Vida's studios and students were solicited by the                 company. [*2]Yoga Vida published class schedules on its website and set the duration of                 each class. Instructors were compensated by check according to a negotiated rate, with                 some instructors preferring a set rate for each class and others electing to take a percentage                 of the fees that were collected from students who attended classes. Patton averred that                 the  instructors were an integral part of Yoga Vida's business (see Matter of Professional                 Career Ctr., Inc. [Commissioner of Labor], 105 AD3d 1219, 1220 [2013]), and he                 personally ensured that they were properly certified and had adequate training and                 expertise to conduct classes. While Yoga Vida disputed that it supervised the instructors,                 Patton conceded that he would personally address instructors regarding their manner of                 instruction if it posed a risk of injury to the students or if they were otherwise engaged in                 conduct that he found objectionable. Overall, despite the existence of evidence that could                 result in a contrary result, the record contains substantial evidence to support the Board's                 decision that Yoga Vida had sufficient control over the instructors' work, thereby allowing                 for a finding of an employer-employee relationship (see Matter of Anwer [Exclusive                 Fragrance & Cosmetics, Inc.—Commissioner of Labor], 114 AD3d at 1115; Matter of                 Human Performance, Inc. [Commissioner of Labor], 28 AD3d 971, 972 [2006]; Matter of                 Fitness Plus [Commissioner of Labor], 293 AD2d 909, 910 [2002])

Mitchell H. Rubinstein

August 4, 2014 in Employment Law | Permalink | Comments (0)

Friday, August 1, 2014

Pres. Issues Exec Order Requiring Fed Contractors To Disclose Labor Violations

The President signed an executive order requiring prospective contractors to disclose to agencies violations of 14 federal wage and hour, discrimination, health and safety, family and medical leave, labor and other workplace laws.

The Fair Pay and Safe Workplaces executive order, applying to new federal contracts of more than $500,000 starting in 2016. Additional information can be found on this White House fact sheet.

Mitchell H. Rubinstein

August 1, 2014 in Labor Law | Permalink | Comments (0)

Wednesday, July 30, 2014

Professor and Student Discounts

I got an email from Braddeals which is a blog which compiles a list of student and professor discounts. If you find it useful, please leave a comment. The discounts can be found here.  Please leave a comment if you find this information helpful.

Mitchell Rubinstein

 

July 30, 2014 in Misc., Non-Legal | Permalink | Comments (0)

Monday, July 28, 2014

Importance of Special Education

Balancing Special-Education Needs With Rising Costs, NY Times (July 27,2014)is an interesting NY Times article about the importance of special education to a child's life and how taxing the litigation process can be for parents and their child. As the article states:

It was a daily struggle to keep Dylan alive, much less educate him. And when his public school could not deliver all the daily therapy the then 5-year-old was supposed to receive, his parents asked that New York City pay for what they believed was the kind of education Dylan needed: a private school for disabled children.

Rather than pay, however, the city decided to fight. For several months, the Randalls and their lawyers battled with city lawyers, until Nov. 18, when a hearing officer ruled in the family’s favor. Not only did the boy deserve placement in a private school, the hearing officer, Diane R. Cohen, said, but he was also owed hundreds of therapy sessions that the city had failed to deliver during his kindergarten year.

“For a student who is unable to ambulate on his own and is dependent on the provision of therapies for every aspect of life’s functions, the failure to consistently provide related services is a serious impediment to the student’s well-being,” Ms. Cohen wrote.

Mitchell H. Rubinstein

 

 

 

 

July 28, 2014 in Education Law, Special Education Law | Permalink | Comments (0)

Friday, July 25, 2014

University of Arkansas at Little Rock Law Review Goes Green

The University of Arkansas at Little Rock Law Review announces its transition to online publication here.  I would expect more law reviews will make this move as law schools look for cost savings.

Craig Estlinbaum

July 25, 2014 in Law Schools | Permalink | Comments (0)

Thursday, July 24, 2014

House Bill Would Require 2 Weeks Notice of Change in Work Schedules

There is a Bill pending in Congress which would require that employers give part time workers 2 weeks notice of change to their schedules. Further details can be found here

Mitchell Rubinstein

July 24, 2014 in Legislation | Permalink | Comments (0)

Tuesday, July 8, 2014

Restoring Trust at Yeshiva

Lawrence Cunningham (George Washington) wrote a thoughtful post yesterday at Concurring Opinions about ongoing financial problems at Manhattan's Yeshiva University, home institution to Cardoza Law School.  When the Madoff scandal hit the papers I remember reading that Yeshiva's endowment sustained a significant loss and it seems now that loss foreshadowed the broader troubles the university leadership now faces.  In his blog post, Prof. Cunningham summarizes and critiques Yeshiva's ongoing efforts to change direction and restrore trust in the aftermath.

Cunningham has a new book, Berkshire Beyond Buffett: The Enduring Value of Values, releasing in October from Columbia University Press.  His recent posts at Concurring Opinions on the book's themes, including yesterday's post and an earlier post, "The Babe Ruth of Good Business," have piqued my interest.

Craig Estlinbaum

July 8, 2014 in Blogs, Faculty, Books, Colleges | Permalink | Comments (1)