Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, November 30, 2007

Copy of Executive Order Which Imposes Cooling Off Period And Which Will Delay Any Strike By Amtrack Workers

As reported on Workplace Prof Blog, the President issued an Executive Order and appointed an emergency Board which effectively imposes an immediate 60 day cooling off period under the Railway Labor Act which prevents Amtrack workers from striking and the employer from locking them out. The Board has 30 days to issue the report and the parties have 30 days to consider it. After that cooling off period, the parties are free to strike.  A copy of that Executive Order is available here.

The President has this power pursuant to section 10 of the RLA (45 U.S.C. 160). The President has not announced who will be members of this Emergency Board. This is a situation to watch.

Mitchell H. Rubinstein 

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

Excellent Primer on Article 78

Albany Law School Adjunct Professor Thomas Gleason wrote an excellent November 19, 2007 New York Law Journal article on New York Practice entitled "Declaratory Article 78 Proceedings." In it, he highlights the differences between a pleanary action, an article 78 action and hybrid action. As Professor Gleason writes:

The usual pleading rules apply in a straight declaratory judgment action, and this can cause some delay. There will be a summons and complaint just like in any other lawsuit, followed by the answer and sometimes the virtually automatic service of document demands and notices of deposition. Such usual pretrial procedures for civil actions are cumbersome in cases challenging government policy, which for the most part present only questions of law, and this is why the use of the declaratory judgment procedure creates the risk of delay.

The delay can be reduced if the parties cooperate in seeking prompt resolution, which often is done when one of them or both promptly move for summary judgment after issue is joined. This cooperation does not always occur, and, in any event, the DJ procedure still will build in some delay in reaching the merits, because the answer usually is not served (and then by mail) until 30 days after the service of the complaint. Only after the answer is served is a summary judgment motion even permissible, and parties are usually reluctant to handle such important applications on a compressed time-scale.

Mitchell H. Rubinstein

November 30, 2007 in Civil Law | Permalink | Comments (0) | TrackBack (0)

Thursday, November 29, 2007

Resturants Suit Against MTA for Causing Transit Strike Is Dismissed.

Matter of Russian Samovar v. TWU, ___A.D.3d__ (3d Dep't. Nov. 29, 2007), is a lawsuit brought by a resturant owner who lost business as a result of the 2005 NYC Transit strike. As the court stated:

Plaintiffs' further claim that the MTA committed an unspecified intentional tort by addressing pension issues in its collective bargaining negotiations fails to state a cause of action. There is no private cause of action against the MTA under the Taylor Law; only such private causes may be brought as existed at common law (see Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314 [1983]), which did not include an intentional tort for employer bargaining conduct. Even if the unspecified intentional tort claim could be based upon employer conduct, it would be limited to unlawful conduct, and the actions of the MTA herein did not constitute such "extreme provocation" as might detract from the union's responsibility for engaging in
the strike.

Mitchell H. Rubinstein

November 29, 2007 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Big Firm Perks

The November 22, 2007 New York Times ran an interesting story entitled "For Lawyers, Perks to Fit a Lifestyle" which is about some non-montary Perks at large law firms.  As the article states:

To combat burnout, some firms also offer extended sabbaticals for a wide range of pursuits — to study classical piano, for instance, or work on political campaigns.  But while some of these benefits take the form of highly practical solutions — like on-site child care — others raise questions whether law firms are subsidizing a cushy lifestyle.  “As if a $160,000 starting salary wasn’t enough for associates” fresh out of law school, “yes, there’s more,” said Peter Johnson of Law Practice Consultants in Boston.

For example, Sullivan & Cromwell, another old-line firm, with more than 600 lawyers, guarantees the first $100,000 of mortgages of associates who have been with the firm for at least six months. DLA Piper, the nation’s largest law firm, reimburses employees $2,000 when they buy a hybrid car. Fulbright & Jaworski offers on-site tailoring and reimbursements to employees who buy a Subaru, Nissan or General Motors vehicle.

“In our business, people are our main asset so our benefits are designed to keep people happy and healthy,” a spokesman for DLA Piper, Jason Costa, said. Fried, Frank, Harris, Shriver & Jacobson, a 600-lawyer firm based in New York, offers employees a service akin to a personal issues coach and psychotherapist through a deal with Corporate Counseling Associates of Manhattan. The consulting firm has a battery of staff psychologists and social workers to provide advice on issues including stress, anxiety, depression and divorce.

While many companies have offered employee assistance programs over the years, few have Ph.D. psychologists on staff.

Mitchell H. Rubinstein

November 29, 2007 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Sexual Harassment Complaint Procedure Must Be Reasonable

7thcir_2  In another important decision by 7th Circuit Judge Posner, the court in EEOC v. V & J Foods, ___F. 3d___(7th Cir. Nov. 7, 2007), discusses the Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington v. Ellerth, 524 U.S. 742 (1998) affirmative defense to claims of sexual harassment. Briefly, these cases stand for the proposition that an employer can avoid liability for hostile environment sexual harassment if the company had a mechanism by which the victim could complain and get relief.

Significantly, the court held that the complaint system must be "reasonable" and what is reasonable depends upon the circumstances. One example the court gave would be a complaint system that required complaints be in English, but where large numbers of employees did not speak English. Here, the victim was a 16 year old teenage girl working at a Burger King at her first job. The court also held that the victims age and education where also relevant. As the court explained: "knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager.

The complaint procedure adopted was confusing and it was unclear who a complaint should be lodged with. There was also no assurance in the procedure that the victim would not be retaliated against for lodging a complaint. Therefore, the court dismissed the affirmative defense.

Mitchell H. Rubinstein

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

Shorter Law Review Articles??

Professor Ann Althouse over at Althouse has an interesting November 15, 2007 posting about the length of law review articles. As Professor Althouse states:

Massive tomes... I call them "unpublishable books." But they are published, as articles, in law reviews, and no one reads them. The shorter an article is, the more likely people will read the whole thing. If it's long, sane readers will adopt strategies of skipping and skimming.

The same goes for court opinions. How I would love to teach my Constitutional Law classes without making the students buy a casebook. I'd email them a list of links to the great cases, which we'd read carefully and deeply.

But the cases are far too long, and the students would be fools to read every word. Like a practicing lawyer grappling with the new cases, they'd have to develop methods for reading without reading. There aren't enough hours in the day, and the dull verbosity doesn't reward close reading. So we're stuck with the casebooks, the parts of the cases that the lawprof editor thought the students should get to see. You'd think the judges would want to defend themselves from the law professor's editorial judgment, but no, they must swirl up an unreadable mass of verbiage. Is it because, made short and clear, the writing would show its flaws?

I'm often asked what good lawprof blogging can do for legal scholarship. There's the example of concision. Learn from it!

Mitchell H. Rubinstein

November 29, 2007 in Law Review Articles | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 28, 2007

Blog Leads To Demise of State Judge

Judges Feel Legal Blogs' Glare is a very interesting November 28, 2007 National Law Journal article by Julie Kay. The article discusses how a blog run by the criminal defense bar in Florida lead to a Judge in Florida resigning from the bench. As the article states:

In May, Dale Ross, chief judge for the Florida circuit court in Broward County for 16 years, stepped down following a year of embarrassing scandals, gaffes and bad behavior by his judges.

Although pressure was building for Ross to resign for years, many legal observers say it would not have happened if not for the new Broward courthouse blog, JAA Blog.

That blog hammered Ross on a daily basis and reported on such incidents as a judge arrested for smoking pot in a park, another judge making an off-color sexual remark and another judge allegedly taking a loan from a defense lawyer appearing before him.

The JAA Blog was started in August 2006 by a group of criminal defense lawyers fed up with the way things were being run in the Broward courthouse. They believed that it operated like a "good ol' boys network" rather than the second-largest county court in Florida.

This article points out the power of blogging. I would expect more scrutiny of public officials in this manner as blogs become even more popular.

Mitchell H. Rubinstein

November 28, 2007 in Blogs, Legal | Permalink | Comments (0) | TrackBack (0)

Typographical Error Excused As Excusable Law Office Failure

In medical malpractice cases in New York plaintiffs must file what is known as a certificate of merit which indicates that the attorney consulted with at least one medical source before he filed the complaint. In Rosell v. International Cosmetic Surgery, ___Misc. 3d ___, NYLJ Nov. 27, 2007(N.Y. Co. Nov. 1, 2007), the court held that the plaintiffs use of the word "dentist" as opposed to "doctor" in this certificate of merit was excusable law office failure. As the court stated:

  Noting that plaintiff's Certificate of Merit indicates that counsel consulted with a dentist instead of a physician, defendants urge this Court to treat the matter as a default. Citing to George v. St. John's Riverside Hospital, 162 A.D.2d 140 (1st Dep't 1990) and Defelice v. New York Eye and Ear Infirmary, 5 Misc.3d 1027(A) (Sup. Ct., NY Co. 2004), defendants further urge the Court to dismiss the action because plaintiff has failed to present a reasonable excuse for the default and an affidavit of merit from a medical expert. Emphasizing that she did serve a corrected Certificate of Merit shortly before defendants's motion was made, plaintiff asserts that the typographical error should not be viewed as a default. She adds that, in any event, she has established grounds to vacate any default by demonstrating that the error is excusable and the action meritorious

This Court agrees that the typographical error does not rise to the level of a default. Rather, it is a correctable irregularity which has, in fact, been corrected. See CPLR §1201. But even if the error were viewed as a default, this Court finds that the default should be vacated pursuant to the above-cited cases based on plaintiff's showing of excusable neglect and a meritorious cause of action.

The typographical error may properly be considered excusable law office failure. "[A] plaintiff should not be deprived of the important right to have his or her case decided on the merits because of law office failure, where . . . the complaint has merit and the other party cannot show prejudice." Kaufman v. Bauer, 36 A.D.3d 481, 483 (1st Dep't 2007), quoting Tenax v. New York Tel. Co., 280 A.D.2d 294, 296 (1st Dep't 2001); citing Andrenas v. Eschew Constr. Corp., 277 A.D.2d 28, 29 (1st Dep't 2000); Salzano v. Mastrantonio, 267 AD2d 5 (1st Dep't 1999). Defendants here do not claim any prejudice, as they knew from the allegations in the complaint that plaintiff was alleging that defendants had departed from accepted standards of medical care in their treatment of plaintiff, which included "liposuction of the hips, abdomen, inner and outer thighs and abdominoplasty". (Complaint at ¶13).

A word to the wise, proof read and be careful. Many times a litigant is not going to be as lucky as this plaintiff.

Mitchell H. Rubinstein

November 28, 2007 in Civil Law | Permalink | Comments (0) | TrackBack (0)

Copies of Collective Bargaining Agreements

The University of California at Berkely maintains copies of hundreds of collective bargaining agreements on the web. They are available here. This could be helpful to scholars, lawyers and collective bargaining officials.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

November 28, 2007 in Legal Research | Permalink | Comments (0) | TrackBack (0)

University Bias and Liberals

A conference was held on November 14, 2007 at the American Enterprise Institute in Washington which reportedly demonstrate the growing liberal bias at American Universities. Apparently, 18 papers are going to be presented which somehow demonstrates this bias. The conference does not appear to address law schools. The Nov. 14, 2007 New York Sun has an article about this conference which is available here. As the article states:

Conservative professors must publish more than their liberal peers to be competitive for the same university jobs and promotions, according to new reports. At a conference sponsored by the American Enterprise Institute today in Washington, D.C., researchers from across the country will present 18 papers that they say document the growing liberal bias in academia.

"Universities are tilting to the left, and it starts at the student level and goes all the way through to the hiring level and even to the promotion level," the vice president and director of the National Research Initiative at AEI, Henry Olsen, said. "This is a real problem, not anecdote masquerading as fact."

In departments such as sociology and anthropology, "progressive" and "liberal" professors outnumber "conservative" and "libertarian" faculty members by a margin of at least 20 to 1, according to a new study by a husband and wife research team from George Mason University and the Swedish Institute for Social Research. The findings are based on dozens of national surveys about faculty voter behavior, policy views, and voter registration.

This actually comes as no surprise to me. However, I am not sure if you can document a "liberal bias." If you think colleges are biased, what about law schools??

Mitchell H. Rubinstein

November 28, 2007 in Colleges | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 27, 2007

6th Holds Continued Employment Creates Binding Contract To Arbitrate Employment Disputes

6ht_2  Mandatory employment arbitration agreements continue to be a controversial in employment law. A common question is whether the parties agreed to enter into a binding agreement and whether the employee must individually sign an agreement to arbitrate in order to be bound by it.

A divided 6th Circuit in Seawright v. American General Financial, ___F.3d___(6th Cir. Nov. 13, 2007), reviews basis contract law principles and holds that an individuals continued employment after an arbitration program was announced created a legally binding contract. In a lengthly decision, the court rejects defenses claiming a lack of assent, a lack of consideration, that the promise was illusory and that the contract was one of adhesion. The court also holds that under the FAA a signed writing was not required.

The dissent felt that this case interfered with employee constitutional rights for the convenience of employers. The only problem is that a private employer was involved and therefore constitutional rights were not at issue.

The decision is harsh, but well written and reasoned. The case also demonstrates how employment law is often a species of contract law.

Mitchell H. Rubinstein   

November 27, 2007 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Alleged Harasser Must Be Involved in Demotion Decision to State a Cause of Action

7th_circuit Dorsey v. Morgan Stanley, ___F.3d___(7th Cir. Nov. 9, 2007), is an interesting Title VII case. To establish a claim of direct discrimination, the court describes the relevant standard as follows:

Under the direct method, a plaintiff is required to show that “(1) [s]he engaged in statutorily protected activity; (2) [s]he suffered an adverse action taken by the employer; and (3) [there was] a causal connection between the two.” . .  Dorsey is permitted to prove these three elements by means of direct or circumstantial evidence.

The employer got summary judgement in this case. This was because the there was no caustion established between the demotion and the alleged harasser. The alleged harasser did not make the decision and plaintiff could not establish that he influenced the decision maker in this regard.

Mitchell H. Rubinstein

November 27, 2007 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Every Thing You Wanted To Know About Footnotes But Were Afraid To Ask

Greg May over at the California Blog of Appeal has an interesting story entitled "Footnote Guidance" where he cites to a blog called the (new) legal writer where attorney Raymond Ward discusses an interesting law review article : When a Rose Isn't 'Arose' Isn't Arroz: A Student Guide to Footnoting for Informational Clarity and Scholarly Discourse, by Prof. William B.T. Mock, Jr. As Mr. Ward explains:

Professor Mock describes three kinds of footnotes serving three different purposes:

  • Reference footnotes, citing the authorities supporting the text.
  • Factual footnotes, providing background facts that the reader may not know.
  • Idea footnotes, placing the writer’s arguments, opinions, and analyses in a broader scholarly context.

He then describes the proper use of each kind of footnote and gives pointers for writing them.In a footnote near the end of the article, he gives a valuable pointer that every legal researcher will find useful: When photocopying something from a book or a treatise, always photocopy the title page, both front and back. Later, the photocopied title page will give you all the information you need to cite the work, saving you a trip back to the library for that information.

Mitchell H. Rubinstein

November 27, 2007 in Law Review Articles, Legal Research | Permalink | Comments (0) | TrackBack (0)

American College of Employee Benefits Law Student Writing Competition

The American College of Employee Benefits is sponsoring a writing competition open to all law students and is awarding two $1,500 prizes plus a trip to New Orleans. The details are as follows:

Subject:        FW: American College of Employee Benefits Counsel Writing Contest

        On behalf of the American College of Employee Benefits Counsel, I am requesting your assistance in informing your students of our 2008 law student writing competition. I have attached a description of that competition.

        The American College of Employee Benefits Counsel is an IRC Section 501(c)(3) not-for-profit organization dedicated to elevating the standards and advancing the public’s understanding of the practice of employee benefits law.  In pursuit of this goal, the College encourages the study and development of employee benefits laws, initiates professional discussions of significant employee benefits issues and sponsors an extensive list of Continuing Legal Education programs.

        Fellows of the American College of Employee Benefits Counsel are selected by the Board of Governors from among employee benefits attorneys nominated for that honor and recommended for consideration by the Board’s Membership Committee after considering the recommendations of regional screening committees. Fellows have a minimum of 20 years experience. Selection as a Fellow reflects the Board’s judgment that a nominee has made significant contributions to advancements in the employee benefits field.

        In addition to the monetary prizes described in the attachment, the law students who submit the wining papers will be our honored guests at our annual black tie dinner next September in New Orleans.

        Thank you for your consideration of my request.Peter M. Kelly
Chief Employee Benefits Counsel
Blue Cross and Blue Shield Association
& Chair of ACEBC Writing Contest

A copy of the application and additional information is available here Download competitionannounce2008b1.pdf

Best of Luck.

Mitchell H. Rubinstein

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

Monday, November 26, 2007

Employer Commits ULP By Assigning New Work Without First Bargaining


The Bohemian Club, 351 NLRB No. 59 (Nov. 19, 2007) is an interesting 8(a)(5) case which is worthwhile to review. The issue in the case concerns whether the employer committed a ULP by increasing employee job responsibilies without first bargaining. The employees were cooks and the new responsibilities involved cleaning up and involved about a 1/2 more of work each day. 

As the Board stated: To prove that the Respondent’s assignment of cleaning duties to the cooks violated Section 8(a)(5), the General Counsel was required to show that the assignment constituted a material, substantial, and significant change in the cooks’ work assignments. See, e.g., Peerless Food Products, 236 NLRB 161 (1978). He also was required to show that the assignment was made without giving the Union advance notice and an opportunity to bargain before implementation. See, e.g., Tri-Tech Services, 340 NLRB 894, 895 (2003). We find that the General Counsel made both showings and, accordingly, that the unilateral change was unlawful. We agree with the General Counsel that the assignment of cleaning duties was a material, substantial, and significant change in the cooks’ terms and conditions of employment. It is undisputed that the cooks had to work an extra 30 minutes per day to accomplish their new cleaning tasks. Indeed, one of the cooks had to stay after the end of his shift and work overtime to perform his added cleaning duties. Mitchell H. Rubinstein

November 26, 2007 in NLRB | Permalink | Comments (0) | TrackBack (0)

Judge Posner Rejects Religious Discrimination Claim By Discharged Probationary Teacher

7th_circuit Grossman v. South Shore Public School Dist., ___F.3d___(7th Cir. Nov. 15, 2007)(Posner, J.), is an interesting case concerning termination of a probationary teacher who claimed religious discrimination.The teacher was a guidance counselor in a tiny town (population 500). She replaced literature about condoms with literature advocating abstinence. Additionally, the teacher offered to pray with students who were experiencing problems. Her performance in all other respects was considered exemplary.

Judge Posner granted the employer summary judgment. His basic reasoning was that the teacher was not denied tenure because of her religious beliefs. Rather, she was denied tenure because of her conduct. 

As usual, Judge Posner's decision is well written and well reasoned.

Mitchell H. Rubinstein

November 26, 2007 in Education Law | Permalink | Comments (0) | TrackBack (0)

Milani Writing Competition

Professor Ruth Colker of Moritz College of Law writes to inform us of the 2007-08 Milani Writing Competition. Awards will range from $300 to $1,000 and would look very good on a student's resume. Submissions should be trial or appellate briefs on any aspect of disability law or practice or Title VII, Title IX, ADEA, FMLA or state or municipal ordinances prohibiting discrimination on the basis of sexual orientation.

Best of luck.

Mitchell H. Rubinstein

November 26, 2007 in Law Students | Permalink | Comments (0) | TrackBack (0)

7th Affirms NLRB Holding That Discriminatees Have Duty To Mitigate Damages By Seeking Other Employment

7th_circuit NLRB v. Midwest Personnel Services, ___F.3d____(7th Cir. Nov. 8, 2007), reviews a finding in an NLRB compliance hearing concerning the amount of damages individual discriminatees are due. Both the Board and the circuit had earlier found that the individuals in question were illegally discharged as a result of a strike. The employer contended that the discriminatees were not entitled to damages because they did not sufficiently mitigate their damages. The 7th analyzed each employee situation in question and affirmed the Board's determination that the individuals in question did sufficiently mitigate their damages.

This case does not present any new law. However, it demonstrates the amount of litigation the discharge of only a handful of employees generated. One wonders whether it may have been cheaper for the employer just to pay these employees.

Mitchell H. Rubinstein   

November 26, 2007 in NLRB | Permalink | Comments (0) | TrackBack (0)

Sunday, November 25, 2007

Supreme Court Takes On 'Me, Too' Age Bias

On December 3, 2007, the Supremes will hear oral argument in Sprint v. Mendelsohn, No. 06-1221. The issue in the case is whether so called "me too" evidence is admissible under the Federal Rules of Evidence. The type of "me to" evidence is from another alleged victim of discrimination who had a different supervisor.

Since this particular case involves a single RIF I can see the Supremes allowing this type of evidence to be admitted to demonstrate some type of pattern if that is plaintiffs theory. Other than that, in the run of the mill Title VII cases involving disparate treatment, I do not believe that this type of evidence will be found to be admissible. The danger of prejudice is just to high. An excellent article previewing this case is in the November 26, 2007 National Law Journal which is available here.

Mitchell H. Rubinstein    

November 25, 2007 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Foxwoods Workers Vote to Join Union

The November 25, 2007 Associated Press carried an interestng article entitled "Foxwoods Casino Dealers to Join Union." The story is about the union's victory at Foxwoods which is an Indian casino. The issue of whether tribal or U.S. law applies is being litigated at the NLRB. The Casino argued, of course, that tribal not U.S. law applies. As the article states:   

Saturday's vote was held after the National Labor Relations Board rejected a motion by the casino's owners, the Mashantucket Pequots, to delay the process while the board reviews the ruling by regional NLRB officials that found the dealers had the right to unionize.

The regional office had rejected the Mashantuckets' argument that tribal employment law has jurisdiction in the matter.

"We are disappointed with the preliminary tally, however, these results will not be official until all legal issues, including jurisdiction, are resolved," said John O'Brien, the casino's president. "We continue to believe as we have from the very beginning that the labor board lacked jurisdiction and that any election should have been governed by tribal laws."

Connecticut Attorney General Richard Blumenthal, who had argued in favor of the right to unionize at the casino, predicted the vote will be upheld. Federal courts already have ruled that labor laws apply at tribal casinos, he said.

Look for this case to be litigated perhaps up to the U.S. Supreme Court one day. It presents some very interesting legal issues. Additionally, it is quite unusual for a state attorney general to be appearing before the NLRB. These issues are ripe for law review commentary.

Mitchell H. Rubinstein

November 25, 2007 in Labor Law, Law Review Ideas, Legal News | Permalink | Comments (0) | TrackBack (0)