Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, May 31, 2007

Justice Ginsburg Reading Her Dissent From the Bench

A New York Times Article dated May 31, 2007 by Linda Greenhouse entitled "Oral Dissents Give Ginsburgh A New Voice On Court" discusses Justice Ginsberg's recent practice of reading dissenting opinions from the bench. Greenhouse describes this practice as an act of theater to convey a message that the majority opinion is profoundly wrong.

I suspect Ginsburgh did not read her full opinion; rather she probably read from a prepared summary or perhaps a portion of the opinion. I question the utility of this practice. It often takes hours to read a Supreme Court decision and they are full of footnotes and citations to other cases and articles. It is important to see what the Justice  is citing as this will help the lawyer decide if the case is applicable or perhaps distinguishable. It is also those citations which distinguish good legal scholarship from outcome determinative politicial decision making.

I believe these "judicial sound bites" can be misleading and incomplete especially to Q public and hope that Justice Ginsburg, whom I admire, puts a stop to this.

Mitchell H. Rubinstein       

May 31, 2007 in Misc., Legal | Permalink | Comments (0) | TrackBack (0)

Important Article About Interplay Between Title VII and First Amendment

Adjunct Professor John Wirenius (Touro College) and Deputy Director NYC Office of Collective Bargaining recently authored an important law review article about the tension between Title VII sexual harassment law and the First Amendment entitled Actions As Words, Words As Actions; Sexual Harassment Law, The First Amendment and Verbal Acts, 28 Whittier L.Rev. 905 (2007). The  Abstract provides as follows:

The article examines the tension between the hostile work environment under the civil rights laws and the First Amendment’s protection of free speech, even when such speech is offensive and even discriminatory. After discussing the tension and its limits, the author examines other rationales proposed to resolve this tension, and rejecting them as unsatisfactory. Noting that hostile work environment doctrine, as a variable standard, employs a less “bright-line” approach than is typical of the First Amendment’s rule, the author nonetheless finds that the “open texture” of all rules, and the requirement that a hostile work environment be systematically pervasive or severe brings the conduct prohibited within the scope of “verbal acts” and thus is roughly consistent with the First Amendment.

John is a noted First Amendment scholar having published several law review articles as well as a book entitled "First Amendment, First Principles: Verbal Acts and Freedom of  Speech (2d Ed. 2004). John is also a blogger and offers political commentary Wirenius Report Blog

Mitchell H. Rubinstein

May 31, 2007 in Law Review Articles | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 30, 2007

Who Is An Employee?

Image_logo_2 The most fundamental question is labor and employment law is also one of the most difficult to answer. I recently wrote a law review article outlining the various tests of employee status and focused on whether volunteers were employees. Our Nation’s Forgotten Workers: The Unprotected Volunteers, 9 U. Pa. J. Lab. & Emp. L. 147 ( Fall 2006).

The NLRB recently issued an important decision which outlines the criteria used by the Board in determining employee status. In The Arizona Republic, 349 NLRB No. 95 (May 8, 2007)(news carriers are independent contractors),the Board reaffirms that the common law agency test (where focus is on right to control the work in question) should be utilized to determine employee status.

What is interesting about this case is that it generated a strong dissent from Democratic Wilma Liebman where she would factor in economic dependence of the putative employee into the equation. It appears that Member Liebman would adopt a hybrid test for employee status as utilized in many cases under Title VII where the common law test is combined with the economic reality test (where the focus is on economic dependence). As outlined in my article, there are at least four tests of employee status (common law agency, economic reality, hybrid, primary purpose test (where focus is on intent of statute)) and the case law is far from uniform. As indicated previously on this blog the issue of employee status comes up in tax law as well as in other areas of law.

June 1, 2007 Update:

Administrative Law Profs Blog is reporting that the Department of Labor issued an opinion as to whether students were employees under FLSA. The Wage and Hour Opinion Letter which concluded that students were not employees can be found here.

Mitchell H. Rubinstein   

May 30, 2007 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Who Is An Employer?

Image_logo Who an employer is under the NLRA is also not always an easy question to answer. It becomes particularly thorny when a public sector entity is involved with a close relationship with government. This is because government and public employers are exempt from the NLRA. 

In Recana Solutions, 349 NLRB No. 109 (May 25, 2007), the Board held that a supplier of temporary day labor to a City was an employer within the meaning of Section 2(2) of the Act. Even though the City was exempt from the NLRA, Recana was still considered covered because it met the statutory definition of employer. The Board followed the test it set forth in Management Training, 317 NLRB 1355 (1995). Under this standard, the putative employer merely has to control "some matters relating to the employment relationship." When examining this question, the Board looked to see whether such matters under control of Recana could be subject to collective bargaining negotiations. Although Recana was under contract with the City, it paid the employees in question. The contract only set the minimum wage payment (the minimum wage) and Recana was therefore free to pay more. Additionally, Recana provided uniforms and training. This was enough for collective bargaining.

Recana essentially reaffirms the proposition that governmental contractors are subject to the Act, even thought the contracting government is not.

Mitchell H. Rubinstein 

May 30, 2007 in Labor Law | Permalink | Comments (0) | TrackBack (0)

NLRB Decision On Voter Eligibility

Image_logo_3 As most labor lawyers know, technical voter eligibility rules often determine the results of a union election. Sweetener Supply Corp., 349 NLRB No. 104 (May 23, 2007), is one such decision addressing "voter eligibility." 

To be eligible to vote, Board law has long required that the employee be employed and performing bargaining unit work by the voter eligibility date. Somewhat remarkably, in 2003, the Board held that working does not include training that solely consists of orientation and preliminaries. Rather, the Board is concerned with the performance of bargaining unit work.

In the instant case, the Hearing Officer found no evidence that bargaining unit work was done on the date in question and therefore, she sustained the challenges to the ballots of 3 individuals who were hired and in training on the voter eligibility date.

However, in a 3-0 decision, the full Board overruled this decision. The party seeking to establish ineligibility to vote bears the burden of proof. Thus, the burden was on the employer as the petitioner, to show that the challenged employees did not perform bargaining unit work on the day in question. It did not meet this burden and therefore the challenged ballots were ordered counted.

Mitchell H. Rubinstein      

May 30, 2007 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Value of Law Review Articles

Washington and Lee Visiting Professor Robin Fretwell Wilson wrote a law review article entitled "Autonomy Suspended: Using Female Patients to Teach Intimate Exams without Their Knowledge or Consent", 8 Journal of Health Care Law & Policy 240 (2005). The article is about an apparent practice in some medical centers where pelvic examinations are performed on patients while under anesthesia without their consent by medical students for educational purposes.

As reported by Washington and Lee, her article led to her being invited to testify before the Virginia Legislature and a Bill being passed effective July 1, 2007 which will ban this practice.  Perhaps, other states will follow Virgina's lead.

This is just one illustration of the importance of legal scholarship and how scholarship about practical topics and issues can influence a change in the law.

Mitchell H. Rubinstein 

May 30, 2007 in Law Review Articles | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 29, 2007

Supreme Court Holds Title VII Statute of Limitations Accures When Discriminatory Pay Decision Occurred; As Opposed To When An Employee Is Paid

In Lebetter v. Goodyear, 550 U.S. __(May 29, 2007), the Supreme Court issued a  5-4 decision holding that the 180/300 day time period to file a charge of discrimination with the EEOC runs from the date the discriminatory decision was initially made as opposed to when the employee actually received her paycheck. Once you know this result, most could probably predict that the majority opinion would be written by Justice Alito and that the dissent was written by Justice Ginsburg-who by the way, is a former Title VII scholar.

The majority, however, strongly suggests that the result may have been different if this case was brought under the Equal Pay Act of 1963, instead of Title VII. Presumably, this is because the Equal Pay Act does not have any administrative filing requirement. Unfortunately, the Court did not supply much analysis in this regard. Query whether the analysis in this case is applicable to other statutes-employment or otherwise-that do not have administrative filing requirements.

I will leave it to others to extensively summarize the importance of this case. Professor Paul M Secunda one of the Editors of the Workplace Professor Blog, a blog that I cite to and read often, did a nice job distinguishing between the majority and dissenting opinions and putting this important decision into perspective in his posting entitled "Some Reflections on the Ledbetter Decision"

What I find most interesting is the difference in writing style between Justices Alito and Ginsburg. Justice Ginsburg's dissent was simply more scholarly and better written. In fact, she cited to a law review article, the Sullivan, Zimmer and White Casebook on Employment Discrimination and to an Employment Discrimination treatise by Schlei and Grossman.

Update: May 30, 2007

The Associated Press is reporting that Democratics in Congress are going to try to legislativelyl overule Ledbetter decision. Details here.

Mitchell H. Rubinstein    

May 29, 2007 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Preparing For Law School Exams

There is alot out there on the internet which purports to give students tips on how to prepare for exams.  One of the best I have seen is by Professor Barbara Glesner Fines of the University of Missouri - Kansas City School of Law. The article is relatively short and to the point, just like exams should be. She stresses the importance of analysis and issue spotting, demonstrating knowledge and an understanding of the law, and applying the facts to the law.

A much lengthly piece which is also worth checking out is by University of Chicago Law Professor Elizabeth Garrett. Her article highlights the importance of preparation and identifies the 3 types of law school final exams questions which she calls "issue spotting,"  "thematic" and "brainstorming."

Law students should review both of these articles.

Mitchell H. Rubinstein

May 29, 2007 in Law Students | Permalink | Comments (1) | TrackBack (0)

Beyond Netiquette

I'd like to expand beyond Mitch's recent post on law student netiquette.  I'm curious about whether adjuncts  have a different view on student's use of notebook computers in class.  Much has been written about the controversy (IM'ing, surfing, etc. ) and the response of professors generally.  Last month, Paul Caron (TaxProf) blogged on Professor David Cole's interesting Washing Post Op-Ed, which focused on the tendency of students to act as stenographers and Prof Cole's response.  (In his post Paul also has a nice summary of a number of articles on banning laptops).  I do recognize the danger of painting with too broad a brush (and that some professors view the problem differently than Prof. Cole).  But  I still wonder whether adjuncts have had similar reactions.   In dealing with our adjuncts, I have generally found them to be very technologically astute, in part, I believe, because of the competitive demands of the practice of law.  So I wonder how this plays out.


May 29, 2007 in Law Professors | Permalink | Comments (0) | TrackBack (0)

Supreme Court Grants Cert. To Determine If Parties To An Arbitration Agreement Can Alter The Standard of Judicial Review Set Forth in FAA

Last year, I wrote a law review article entitled Altering Judicial Review Of Labor Arbitration Awards, 2006 Mich. St. L. Rev. 235 (Summer). In it I discussed the conflict in the Circuits concerning whether parties can contractually alter the standard of judicial review governed by statute.  On May 29, 2007, the Supreme Court granted cert. to resolve this conflict. The case under review is Hall Street Associates v. Mattel, Inc., 196 Fed. Appx. 476, 2006 WL 2193411 (9th Cir. Aug. 1, 2006)(westlaw registration required). However, this issue actually arose at an earlier stage of the litigation. Hall Street Associates v. Mattel, Inc., 113 Fed. Appx. 272 (westlaw registration required).

This case is an important case to watch because it has implications for contract law as well as arbitration and alternative dispute resolution law. Amazingly, both of these cases which are now headed to the Supreme Court were not officially reported.

The focus of my article was on labor arbitration which is very different from commercial arbitration because the parties are involved in a continuing relationship and a different statute (29 U.S.C. Sec. 185) governs judicial review of labor arbitration decisions. I maintained that parties to a collective bargaining agreement should have the authority to alter the standard of judicial review as a result of freedom of contract and labor law principles.

Michael T. Garone and Michael A. Cohen of Schwabe Williamson & Wayatt represents Hall Street and Marc D. Blackman of Ransom & Blackman as well as  Shirley Hufstedler, Peter Hsiao and Siegmund Shyu of Morrison & Foster represent Mattel.

Update: July 12, 2007. The July 12, 2007 New York Law Journal has an excellent article about this case written by Professor Sam Estreicher and Steven Bennett. It is available here.  

Mitchell H. Rubinstein      

May 29, 2007 in Current Events | Permalink | Comments (1) | TrackBack (0)

Monday, May 28, 2007

Innovative Use of BioData In Hiring Job Applicants

Robert Ottinger, Carrie Kurzon and Charles Kane of the Ottinger Firm wrote an interesting article in the May 21, 2007 Special Supplement to the New York Law Journal entitled "Biodata: The Measure Of An Applicant" Download 052107labor1.pdf " in which they discuss the use of biodata in hiring. Companies such as Google analyze data with algorithms by having prospective employees fill out questionnaires that asks questions about personality, behavior attitudes and personal data-sometimes seeking information going back to high school.

As the authors explain, legal issues involving employment discrimination are presented if this hiring practice has a disparate impact on protected minority groups. Additionally, legal issues involving privacy are implicated with this new hiring practice. The authors also discuss the handful of decisions which have addressed biodata issues.

This sounds like an interesting law review topic that could be developed.

Mitchell H. Rubinstein   

May 28, 2007 in Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

Information Contained in PDA (Palm, Treo, Blackberry etc.) is Admissible in Criminal Case is running a story by Howard Bashman entitled  "Can What You're Reading Prove Intent to Commit a Crime?" dated May 29, 2007 where the evidence used against the defendant consists of more than 140 chat sessions retrieved from the defendants Personal Digital Assistant (aka PDA). The defendant is charged with transporting a minor across state lines with the intent to engage in a sexual act. 

What I find significant is that the police investigators apparently searched the contents of the defendants PDA. This is the first instance that I know of where information on a PDA has been used in a criminal prosecution. With the popularity of such devices, it is likely that this type of evidence will be used in additional civil and administrative agency type cases. I wonder if the defendant was using a Blackberry or a Treo!

Note, the author of this article also runs a blog on appellate litigation entitled "How Appealing".

Mitchell H. Rubinstein   

May 28, 2007 in Interesting Cases | Permalink | Comments (0) | TrackBack (0)

Cause of Action For Conversion of Kidney Organ?

2nd20circ100 We all know about the unfortunate shortage of donated organs in this country. What if a kidney organ intended for donation by the family into a family friend is implanted in someone else? While that's a nice tort law school class hypo and  possible law review article, this has actually happened. Colavito v. New York Organ Doner Network, __F. 3d __ (2d Cir. May 21, 2007).

As summarized in the opinion, this case is actually a Second Circuit decision issued after the New York Court of Appeals issued an opinion which was certified to it earlier. The New York Court of Appeals held that a cause of action for conversion was possible, at least in theory, but in this case the organs were not compatible.

This case raises a host of public policy questions which were not fully answered  (such as whether public policy allows donors to pick recipients, whether public policy permits holding doctors and donor networks liable for mistakes and what type of standard (malpractice, negligence etc. is applied to these types of questions)) by the Second Circuit because the donated kidneys were not compatible.

Remarkably, I have not seen this case addressed in the media. I could not think of a more important issue that deserves public scrutiny.

Mitchell H. Rubinstein   

May 28, 2007 in Law Review Ideas, Oddly Enough, Legal, Recent Developments | Permalink | Comments (0) | TrackBack (0)

Jack Kevorkian (Dr. Death)Being Released From Prison June 1, 2007

Time is reporting an associated press story entitled "Kevorkian Release Nears" that Dr. Kevorkian, age 79, is being released from prison after serving 8 years. He had video taped an assisted suicide on 60 minutes which sparked a national debate about whether terminally ill patients should have the right to take their own life if they were in pain and could not function.

The article does not say why Kevorkian is being released early and I suspect it has something to do with his own health. Several states have considered legislation authorizing physician-assisted suicide, but Oregon is the only state in the union that  allows terminally ill, mentally competent adults who can self-administer the medication to ask a physician to prescribe life-ending drugs.

Mitchell H. Rubinstein   

May 28, 2007 in Legal News | Permalink | Comments (0) | TrackBack (0)

Sunday, May 27, 2007

U.S. Supreme Court proposes revisions to its rules

The U.S. Supreme Court issued a May 14, 2007 Press Release where it outlines proposed revisions to its rules. An excerpt from the Court's press release states:

The Supreme Court of the United States today announced it will entertain public comment on proposed revisions to its rules of procedure. The modifications under consideration include several minor alterations. The more substantial revisions include a change from page limitations to a word count similar to the 1998 Amendment to the Federal Rules of Appellate Procedure. See Rule 33. Changes to Rule 25 revise the briefing schedule and require an electronic version of merits briefs be transmitted to the Clerk. Rule 37 revisions require an amicus curiae to notify counsel of record of intent to file an amicus curiae brief at the petition stage, and to electronically transmit every amicus curiae brief in a case scheduled for oral argument. Also, amicus curiae supporting a petitioner at the petition stage will be required to file within 30 days after the case is placed on the docket, and no extensions will be allowed.

A copy of the proposed rules can be found here. Comments must be received by the Supreme Court no later than June 4, 2007.

Mitchell H. Rubinstein

May 27, 2007 in Recent Developments | Permalink | Comments (0) | TrackBack (0)

Justice Alito Commencement Speaker At Seton Hall Law School

The Associated Press is running a story in the May 25, 2007 Washington Post by Jeffrey Gold entitled " Alito Speaks to Seton Hall Grads" which describes Justice Alito commencement address at Seton Hall Law School. Justice Alito issued a plea for religious tolerance and stated that we must guard against returning to days when a persons faith made them unfit for office.

Justice Alito is a former Adjunct Professor of Law at Seton Hall Law School in Newark, New Jersey.

Mitchell H. Rubinstein   

May 27, 2007 in Law Schools, News | Permalink | Comments (0) | TrackBack (0)

Yale Law School Imposter Professor Arrested

In an article dated May  26, 2007, the Hartford Courant is running an article by Dave Altimari entitled "Yale Caught Up in Con" which discusses a scam where an an individual met immigrants at Yale Law School and claimed that he was on Yale's faculty. The individual was not on Yale's faculty and was not even employed as a member of its staff. However, the article does note that the individual, who was arrrested, did volunteer to do research at Yale at one time. Immigrants flew from all over the country and gave this individual cash with the hope of obtaining a green card.

Mitchell H. Rubinstein   

May 27, 2007 in Law Professors | Permalink | Comments (0) | TrackBack (0)

Legal Research on The Internet

Today, much legal research can be performed on the internet for free. However, nothing beats the comprehensive data bases of LEXIS and WESTLAW. As with much of the internet, the problem is deciding which sites to use. Of course, that is going to depend, in large part, on your practice area. Some areas are better than others. In New York, for example, trial level court decisions are not freely available, nor are federal district court decisions. However, all the federal circuits have their decisions on line and the NLRB has an excellent cite with a search engine. Therefore, if you needed to research an NLRB issue, a good job can be done for free. Some of my favorite sites are as follows:

1. Cornell Law School Legal Information Portal

2. Findlaw

3. Law Source

4. LexisOne

5. New York Advance Sheets-Law Reporting Bureau

6. NLRB decisions and agency documents

7. U.S. Supreme Court

8. Federal Class Action Manual

Mitchell H. Rubinstein   

May 27, 2007 in Legal Research | Permalink | Comments (0) | TrackBack (0)

Adjunct Law Professor and Lawyer Becomes Dean

LSU named Jack Weiss, a noted First Amendment Scholar, a former Adjunct Professor of Law at several law schools and a partner at Gibson Dunn as the law school's new Chancellor.  A news article  discussing his appointment states that as an Adjunct, Mr. Weiss taught more classes than many sitting Deans. Congratulations.

Mitchell H. Rubinstein

May 27, 2007 in Law Schools, News | Permalink | Comments (0) | TrackBack (0)

Saturday, May 26, 2007

Ohio Lethal Injection Takes 2 hours and 10 tries

CNN is reporting on an Ohio Lethal Execution that took 2 hours and 10 tries. The condemed prisoner even was given a bathroom break during his execution! Ohio's execuse is that the condemed prisoner was a longtime intravenous drug user and weighed 265 pounds.  As reported, this is the second botched execution in Ohio this year and a lawsuit has been filed to stop any further executions from taking place.

This case will surely become part of the capital punishment debate in this county. My question for the legislators who decide that capital punishment is appropriate in their state is whether any humane way exists of executing people?

Mitchell H. Rubinstein   

May 26, 2007 in Current Events | Permalink | Comments (0) | TrackBack (0)