Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
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Friday, August 31, 2007

Important Advocacy Conference For FT and Adjunct Faculty

Stetson Stetson College of Law Professor Charles Rose III writes to inform us about an exciting conference on November 16, 2007 at Stetson College of Law in Tampa, Florida about the art of teaching trial advocacy.

Professor Rose writes:

Stetson University College of Law has assembled some of the best known national talent in the area of trial advocacy instruction for its inaugural conference on educating advocates, the art, science and skill of advocacy instruction this November in Tampa, Florida.  Attendees include noted advocacy authors, the former director of the National Institute for Trial Advocacy, a current member of NITA's board of directors, NITA instructors recognized nationally for their excellence in teaching and Directors of the most successful advocacy law school centers in the nation.  The goal of the conference is to examine critically the issues currently facing advocacy professors in the legal community and to share some techniques and methodology that the presenters have found to be effective during their careers.  This is an annual event designed to create a home where advocacy professors, both adjunct and full time, can meet to share ideas and develop expertise.  It will be followed by a skills training program specifically designed for advocacy professors that will take place in St. Petersburg, Florida in late May of 2008.  The conference will honor Terry MacCarthy, the Federal Public Defender from Chicago and noted cross examination expert, with the first lifetime achievement award in Advocacy.  This is an annual award gifted by Stetson College of Law recognizing commitment and excellence in teaching and practicing the art of advocacy.  Mr. MacCarthy will speak at the dinner Thursday night and anyone who has every heard him knows what a treat that will be.  If you are interested in attending the conference please contact the Director of Stetson's Center for Excellence in Advocacy, professor Charlie Rose.  He can be reached at crose@law.stetson.edu and by phone at 727-562-7310.
I have spoken to Charlie and he is more than willing to answer any questions you might have. A PDF file with additional details is available here Download EABRO.pdf . Check it out.
Mitchell H. Rubinstein

August 31, 2007 in Conferences, Faculty | Permalink | Comments (0) | TrackBack (0)

Subject Matter Jurisdiction May Not Be Waived In NLRB Cases

Nlrb_2 Bradley Pacific Aviation, Inc., 350 NLRB No. 59 (Aug. 9, 2007), is a fairly standard NLRB decision concerning jurisdiction. The Board held that an employer which provides aviation support services for approximately 18 major air carriers was not an employer under the Act. Rather, the employer was covered under the Railway Labor Act.

Interestingly, the NLRB Regional Director referred the case the the National Mediation Board which concluded that it had jurisdiction. While the NLRB did not afford the NMD decision res judicata, it basically followed it.

The most important part of the decision, however, is contained in footnote 1. The Employer had submitted to the Board's jurisdiction by agreeing to a Stipulated Election Agreement. Though the Board did not use the term "subject matter jurisdiction", it held that "Sec. 2(2) of the Act is a statutory limitation on the Board's jurisdiction, which may be raised at any time."

Thus, even if a party consents to Board jurisdiction, it still can claim that the Board does not have subject matter jurisdiction.

Mitchell H. Rubinstein

August 31, 2007 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Thursday, August 30, 2007

New York enacts Nursing Mothers In Workplace Act

On August 22, 2007, New York Gov. Spitzer signed into law A-07042 which is entitled the Nursing Mothers in Workplace Act. This statute authorizes nursing mothers to express breast milk; provides that an employer shall provide a reasonable amount of paid or unpaid break time during each work day to permit an employee to express breast milk for her nursing infant for at least two years following the birth of such child.

Specifically, the statute provides:

NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW, AN EMPLOYER SHALL
PROVIDE A REASONABLE AMOUNT OF PAID OR UNPAID  BREAK  TIME  DURING  EACH
WORK  DAY  TO  PERMIT AN EMPLOYEE TO EXPRESS BREAST MILK FOR HER NURSING
INFANT FOR AT LEAST TWO YEARS FOLLOWING CHILD  BIRTH.  NOTHING  IN  THIS
SECTION  SHALL  REQUIRE  AN  EMPLOYER TO PROVIDE SUCH EMPLOYEE WITH MORE
PAID BREAK TIME THAN SHE WOULD  OTHERWISE  RECEIVE,  BUT  SUCH  EMPLOYEE
SHALL BE PROVIDED WITH ANY ADDITIONAL UNPAID BREAK TIME SHE MAY NEED FOR
SUCH  PURPOSE.  AN  EMPLOYER IS NOT REQUIRED TO PROVIDE BREAK TIME UNDER
THIS SECTION IF TO DO SO WOULD SERIOUSLY DISRUPT THE OPERATIONS  OF  THE
EMPLOYER.  THE  EMPLOYER  SHALL PROVIDE A PRIVATE ACCOMMODATION SUITABLE
FOR THE PURPOSE OF EXPRESSING BREAST MILK, LOCATED IN CLOSE PROXIMITY TO
THE WORK AREA, NOT INCLUDING  A  BATHROOM  STALL  OR  STORAGE  AREA.  NO
EMPLOYER  SHALL  DISCRIMINATE IN ANY WAY AGAINST AN EMPLOYEE WHO CHOOSES
TO EXPRESS BREAST MILK IN THE WORKPLACE.

The Legislative History of this statute can be found here and Gov. Spitzer's statement upon signing the statute can be found here.

All I can say, it's about time.

Hat Tip Workplace Prof Blog

Mitchell H. Rubinstein 

August 30, 2007 in Legislation | Permalink | Comments (1) | TrackBack (0)

New York Amends Executive Law In Order To Be Consistent With The ADA

On August 24, 2007, Gov. Spitzer signed into law and amendment to New York's Executive Law which imposes a duty to accommodate individuals with disablities. The purpose of this amendment was to alien state law with the federal ADA. The Governor's statement upon signing the Bill can be found here.

Mitchell H. Rubinstein 

August 30, 2007 in Legislation | Permalink | Comments (0) | TrackBack (0)

Number of Americans Without Health Insurance Continues To Rise At An Alarming Rate

Workplace Prof Blog reports on new U.S. Census Bureau finding which states that shows that the number of uninsured rose from 44.8 million (15.3 percent) in 2005 to 47 million (15.8 percent) in 2006.

I join with Professor Paul M. Secunda in finding this absolutely unacceptable. Something has to be done about this and the problem is that our politicians cannot decide on what. This is a long term problem and its solution should not depend upon which party is in the White House.

Personally, I favor a national health insurance system with a legal after market where employees and others have supplemental can cut down the wait time that would probably be a by-product of a national health insurance program.

The U.S. is the only major Western nation not to have national health insurance and its about time that this is changed.

Mitchell H. Rubinstein

August 30, 2007 in Employee Benefits Law | Permalink | Comments (0) | TrackBack (0)

Authority of a Notary Public

The August 14, 2007 New York Law Journal has a very interesting article entitled "Value of a New York Notary Public" which discusses the history of notary publics in New York and elsewhere. The article also outlines what Notaries can and cannot do.  The article also points out that there is very little authority dealing with Notaries in New York and that is a bit surprising since they are so important to the court system.

As the article states:

  It was not until recently when confronted with some foul play in an affidavit submitted to the court that I discovered the long history that notary publics have worldwide and their services provided since ancient Egypt. Such names dating back to that time and since have included Scribae (latin for scribes), Tabellions and Notarii (shorthand writers who preserved Christian martyr trials).

Notary publics play a vital role in our more modern societies as well. In the relatively early years of the United States notary publics provided legal services and advice due to the scarcity of lawyers, particularly in more rural areas. These practices still exist in other countries, however, the role of a notary in the United States and New York in particular has changed with time. Now, New York notaries who are not also lawyers are prohibited from giving legal advice, drafting legal documents and cannot solicit legal business for associated lawyers or share in any legal fee. 

To my surprise relatively little New York case law exists regarding notaries. Although we can be guided by some statutes and Attorney General Opinions, neither have, in my opinion, been updated in recent years to better reflect the importance of notaries - that is unless the Legislature is sending a message that the modern-day notary provides little value in New York.

If anyone is seeking to research legal information about Notaries in New York or elsewhere, this article is a good starting point.

Mitchell H. Rubinstein

August 30, 2007 in Misc., Legal | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 29, 2007

Federal Judge Uphold NYC Dept. of Education's Right To Ban Metal Bats

A dispute over whether the NYC Department of Education has the authority to ban metal baseball bats has made its way to federal court. In an August 29, 2007 New York Times article entitled  "Judge Upholds Right to Ban Metal Bats", reporter Ray Rivera describes a 39 page federal decision upholding the Department's ban, citing safety reasons. The article states that this decision is being closely watched by baseball organizations and manufactors.

As the article states:

In a 39-page decision, Judge John G. Koeltl of United States District Court in Manhattan struck down arguments from opponents and said that the City Council acted within its constitutional authority in seeking to protect health and safety.

While the judge observed that there was disputed evidence over whether metal bats were more harmful than wooden bats, he said that the Council had acted rationally in assessing “that the risk is too great.”

“The judgment that high school baseball players’ safety is more important than higher batting averages and more offense is a classic legislative judgment that the City Council could constitutionally make,” he wrote.

Mitchell H. Rubinstein

Hat Tip: Aaron Mackler

August 29, 2007 in Oddly Enough, Legal | Permalink | Comments (0) | TrackBack (0)

$10,000 Loan Repayment Award For Federal, State and Local Prosecutors and Public Defenders May Be In The Works

On May 15, 2007, the House passed H.R. 916 which provides that the Department of Justice would repay certain federal loans up to $10,000 per year, for a maximum of $60,000, for licensed attorneys  who take jobs as public defenders or prosecutors. This Bill was introduced in the U.S. Senate on May 16, 2007 where it remains pending.

The student borrowers would need to enter into a loan repayment agreement which specifies that they will agree to remain employed as a prosecutor or public defender for not less than three years and if they are either involuntarily or voluntarily separated from employment before the end of that period, they would be responsible to repay the amount of money received.

This money, referred to in the Bill as an "Award," would be subject to the availability of appropriations and the Attorney General is given the discretion to determine what a fair allocation of benefits would be nationwide. Priority is given to borrowers with the least ability to repay their loans. Additionally, the Attorney General is given the authority to issue regulations which would further define who is eligible for these awards.

This Bill, if enacted, would be welcomed by law schools and law students alike. It is no secret that law students today are graduating with huge student loan debts which makes it difficult for them to accept jobs in the public service. Students should also be aware that this Bill, as written, does not guarantee them anything as the Attorney General is given a fair amount of discretion with respect to how the allocations would occur.   

Mitchell H. Rubinstein

Hat Tip: Aaron Mackler   

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

401(k) Fiduciaries Win Round 1 on 'Excessive Fees' Suits

The August 17, 2007 New York Law Journal has an interesting article by  Donald P. Carleen entitled "401(k) Fiduciaries Win Round 1 on 'Excessive Fees' Suits"The article discusses Heckler v. Deere & Company,___F. Supp.2d ___,  2007 WL 1874367 (W.D. Wisc. 2007)(registration required), which dismissed a case alleging breach of fiduciary duty under ERISA because excessive 401(k) fees were imposed. The participants did not pay the fees directly. Rather, the fees were taken out from the Mutual Funds run by Fidelity Management and Research Company. The court found that the trustees were not liable because the individuals controlled the investments and their full disclosure was given about the fees. As the article states:

Ruling in favor of the defendants on their motion to dismiss the complaint, the Heckler court found that Deere was protected from liability by the safe harbor because the company met the disclosure and other requirements imposed by the DOL regulations. The court stated that the disclosure requirements which must be met for the safe harbor to apply were limited to those imposed by Congress and the DOL. In so ruling, the court rejected the plaintiffs' contention that the disclosures made in the prospectuses and SPDs were inadequate because they did not include information about revenue sharing or a detailed breakdown of other expenses not specifically required by the regulations. Perhaps more importantly, the court rejected the plaintiffs' assertion that the defendants breached their fiduciary duties by failing to provide participants with a choice of investment options that charged lower fees.

401(k) plans are in vogue today and Fidelity is a major player in this market. This decision is probably not the last word on the critically important issue of whether plan fiduciaries have a duty to offer investment options which charge low fees. I can very easily see some courts going the other way and imposing such a duty on fiduciaries.

Mitchell H. Rubinstein   

August 29, 2007 in Employee Benefits Law | Permalink | Comments (0) | TrackBack (0)

Prosecutors Drop Criminal Charges Against Rider University Officials

Earlier this month, two Rider University administrators and a student were criminally charged with  aggravated hazing charges in a case involving the drinking death of a fraternity pledge. As reported by Associate Provost Jim Castagnera over at Higher Education Law Prof Blog, who happens to work at Rider University, I am glad to report that these charges have been dismissed against the university officials. You can find Higher Education Law Prof Blog's postings on this here and here.

Query whether this is the end of the matter for the university officials? If the university officials still believe some type of misconduct occurred, they would be free to discipline them subject to whatever due process protections the employees may be entitled to under any applicable collective bargaining agreement or university procedures. Based upon a public statement on Rider's web site, the university president appears to be supporting his staff. That certainly appears to be good news.

Mitchell H. Rubinstein

August 29, 2007 in Colleges | Permalink | Comments (0) | TrackBack (0)

Law of Rock

A Boalt Hall law student put together some music about first year law subjects. It is available here.

It might make an interesting gift.

Mitchell H. Rubinstein

Hat Tip: Brian Leiter's Law Reports 

August 29, 2007 in Legal Humor | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 28, 2007

Arbitrator's Resignation From Arbitration Panel Does Not Void Arbitration

2dcirseal Zeiler v. Deitsch, ___F.3d ____(2d Cir. Aug. 23, 2007), is an interesting arbitration decision. Though the case literally concerns Jewish law, it has a nice review of applicable law concerning what happens when one arbitrator from a triparte panel resigns.

Not surprisingly, the answer is governed by the arbitration agreement. In this case the court held that the remaining arbitrators had the authority to appoint a new arbitrator. This issue can arise in labor arbitration and in commercial arbitration.

Mitchell H. Rubinstein 

August 28, 2007 in Arbitration Law | Permalink | Comments (0) | TrackBack (0)

Denial of Overtime Is Adverse Employment Action Under Title VII

In Lewis v. Chicago, No. 06-2302, __F. 3d __(7th Cir. July 26, 2007), the 7th Circuit held that a denial of overtime can constitute an adverse employment action under Title VII. However, the emphasis on my prior sentence is on the word "can." As the court stated: "depending on the type of work, overtime can be a significant and recurring part of an employee's total earnings similar to a recurring raise or it could be insignificant and nonrecurring like a discretionary bonus.

What is somewhat surprising is that this case was one of first impression.

Mitchell H. Rubinstein

August 28, 2007 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Increase Use of Adjuncts At Community Colleges

The Courier News Online has an article entitled Central Jersey Community Colleges See Rise In Adjuncts, which as the title implies is about the increasing use of adjuncts in community colleges. The numbers of adjuncts used at community colleges is astonishing. As the article states:

At Central Jersey community colleges, 74 percent of the faculty at Raritan Valley Community College in the North Branch section of Branchburg are adjunct professors; 70 percent are adjunct professors at Middlesex County College in Edison; and 59 percent are adjunct professors at Union County College in Cranford.

"There are large numbers of part-time faculty at all three colleges, which is unfortunately quite common for community colleges nationwide," Curtis said, noting the national average for community colleges in fall 2005 was 66 percent of all faculty employed part-time -- another word for adjuncts.

While I do not know the exact numbers, I believe a trend exists in our nation's law schools to increase the number of adjuncts. While I am all for adjunct employment, a law school and a good college needs a core group of full-time faculty who will be there for the students. If a school employs too many adjuncts, that says something about the school. Faculty shape the school. Committee and curriculum work is important.

Mitchell H. Rubinstein

August 28, 2007 in Adjunct Information in General, College Professors, Law Professors | Permalink | Comments (0) | TrackBack (0)

Whittier's Dean Timely Responds By Explaining That Whittier's Probation Has Been Extended Until Feb. 2009

As readers of this blog are aware, Adjunct Law Prof has been following the developments concerning Whittier Law School's probationary accreditation status. Intially, the ABA threatened to revoke its accredition due to poor bar passage rates. Whittier filed a lawsuit seeking a TRO to prevent this from happening. Eventually, the lawsuit was withdrawn after Whittier's bar passage rate improved. Previous posts on this topic together with a copy of some of the litigation documents can be found here, here and here.

On August 28, 2007, we noted that Whittier had not updated its web site to reflect what happened at the early August 2007 ABA accreditation meeting and challenged Dean Neil Cogan to explain why. I am pleased to report that in an email to me Dean Cogan explained that he was waiting for written ABA confirmation which he did not get until last Thursday. Dean Cogan explained that Whittier's probationary accreditation status has been extended until Feb. 2009 and that he will shortly have the  schools web site updated to reflect this fact. A copy of Dean Cogan's August 28, 2007 e-mail to me is available here Download Whittier.wpd. (Note, depending on your browser, you may have to first save this word perfect file to your desktop.).

Congratulations Whittier. We fully expect that you will regain full accreditation status by continuing to increase your bar passage rate.

Mitchell H. Rubinstein    

August 28, 2007 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Monday, August 27, 2007

No Personal Jurisdiction Based Upon Internet Based Graduate Program

3dcir A little noticed, but critically important civil procedure case is Marten v. Godwin, ___F. 3d ___(3d Cir. Aug. 22, 2007).

After being accused of plagiarism and expelled from an internet-based educational program, plaintiff filed a complaint in the Eastern District of Pennsylvania  alleging defamation under state law and retaliation in violation of the First Amendment pursuant to 42 U.S.C. Sec. 1983.  However, because plaintiff did not establish that the nonresident defendant expressly aimed their conduct at Pennsylvania, the case was dismissed.

Plaintiff enrolled in University of Kansas School of Pharmacy Non-Traditional Pharm.D program where licensed pharmacists can pursue advanced degrees online. Students communicate with the school which, is located in Kansas, by phone and email.

Plaintiff only alleged that the defendants harmed him while he was residing in Pennsylvania. However, in order to establish personal jurisdiction under the so called "effects test," plaintiff needed to show that defendants expressly aimed their conduct at Pennsylvania and defendants knew that harm would be suffered there.

The court does not cite to other cases involving jurisdiction as the result of internet commerce. Therefore, this case appears to be novel.

What ever the law may have been in the 1940's, the notion of minimum contacts has to be different because of the internet. There is more and more educational commerce taking place online and the notion that personal jurisdiction is lacking because a student resides in another state is out of touch with contemporary America.

Mitchell H. Rubinstein

August 27, 2007 in Education Law, Interesting Cases, Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

Whittier Law School Reportedly Remains On Probation For 2 More Years

Whittierlaw_09_2  As Adjunct Prof Blog reported here and here, Whittier Law School's 2 year probationary status was up August 9, 2007 which prompted a lawsuit by Whittier after the ABA threatened to revoke its accreditation. As we reported, Whittier later withdrew that lawsuit.

Whittiergate.com , which appears to be an anti-Whittier site, is reporting that Whittier's probationary status as been extended two more years. If true, that certainly is somewhat good news. My understanding is that graduates of probationary law schools can take the same bar exams as graduates of fully accredited schools. The ABA web site has not been updated to reflect what happened at the August 2007 meeting. Additionally, Whittier's web site does not mention anything about their probationary status after August 2007.

Come on Whittier, while I have been supportive of you in the past, you need to fully disclose what happened during the August 2007 ABA meeting regarding your ABA status. You should also post a copy of any relevant documents. Your training future lawyers. I am sure your professors would advise your students to read the relevant documents themselves and not rely on third party reports.

I have previously sent a link to my posting about Whittier to Dean Cogan and got no response. I will send a link to this posting with the hope that Whittier takes some action immediately. If Dean Cogan responds, I will post it.

Mitchell H. Rubinstein   

 

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

Which Blogs Do Faculty Read The Most?

The Race To The Bottom, a blog run by Professor Robert Brown over at the University of Denver Law School has an interesting posting about which blogs faculty read the most. His study, which he admits is imperfect,(available here), utilizes statistics from Justia.com. 

He concludes that the top academic blog is TaxProf Blog,  but Workplace Prof Blog is the most blog popular among academics ranked by visits from web sites ending in edu. 

However, not to put a damper on this, but I must question these stats. The listing of the top 200 legal blogs of all time puts TaxProf Blog at number 4 and Workplace Prof Blog at number 2. TaxProf Blog has substanially more visitors than Workplace Prof Blog.

Both Workplace Law Blog and TaxProf Blog have postings about this study.

In any event, congrats to Dean Caron (TaxProf Blog) and to Professors Bales and Secunda (Workplace Prof Blog). I hope that Adjunct Prof Blog makes this ranking one day.

Mitchell H. Rubinstein

August 27, 2007 in Blogs, Faculty | Permalink | Comments (1) | TrackBack (0)

Holland & Knight Scholarship to Provide Tuition at Florida A & M, Law School and Summer Associate Job

Holland & Knight has announced that it will award one student a tuition scholarship at Florida A & M Law School and supply that student with a summer job. Details are available here.

Mitchell H. Rubinstein

August 27, 2007 in Law Students | Permalink | Comments (0) | TrackBack (0)

Sunday, August 26, 2007

Seduction Claims Against Rabbi Are Barred Under New York Law

1stdept Sometimes you just cannot make things up. Marmelstein v. Kehilat New Hempstead,  __A.D. 3d __(1st. Dep't. 2007), is one such case. There, a divided New York appellate court held that a woman who had a five year affair with a Rabbi did not state a cause of action for breach of fiduciary duty and intentional infliction of emotional distress because such claims are barred by N.Y. Civil Rights Law Sec. 80-a which provides in part that  "[t]he rights of action to recover sums of money as damages for alienation of affections, criminal conversation, seduction, or breach of contract to marry are abolished . . ."

The facts are remarkable. The plaintiff alleged:

Plaintiff alleges that she was induced by defendant to engage in this physical relationship "as part of a course of sexual therapy which he represented would lead to her achieving her goals of marriage and children." He told her she was "closed to the possibility of finding a husband" and "would never find a husband in her current state." He advised her "to permit him to have sexual intercourse with her so that her life will open up and men will come' to her." He told her he "was as close to God as anyone could get," and engaging in sexual relations with him would be her "only hope." The relationship did not lead to the outcome plaintiff desired. Rather, she alleges, defendant "physically and emotionally abused [her] for his own sexual pleasure and gratification," and warned that if she told anyone about their sexual relationship he "would have her placed in a straight jacket," "have her put in the penitentiary," and "would turn the community against her."

This case generated a two Justice dissent. Therefore, plaintiff can appeal to the N.Y. Court of Appeals as of right. A August 24, 2007 New York Law Journal article about this case is available here.

Mitchell H. Rubinstein

August 26, 2007 in Interesting Cases | Permalink | Comments (0) | TrackBack (0)