Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, December 31, 2007

Kevin Yu writes to inform us about his blog entitled He describes this blog as follows:

HelpMeSue makes it fast, easy, and free for the average American to post a potential legal grievance for public viewing.  This is done anonymously.  Once on the site, the case is available for lawyers and laymen to view, comment on, or respond to - all of which is also free.  The goal of our site is to make it easy for everyone - not just those with an abundance of time and money - to find legal help.  The marketplace will naturally determine which grievances are "worthy" or being taken up, and which are not.

As the number of cases on our site has grown, it has become clear to me that many of the cases are of high emotional value, but of little monetary value.  Many people seem to want an "outlet" for "justice" - not just a big payout.  I'm trying to find a way to let law professors around the country know about our site, in case their students are interested in performing pro-bono work for some of these folks.

This blog is not very useful to lawprofessors, but may be of interest to students looking to give free advice and trying to develop a name for themselves. It may also be a place where lawyers can pick up some referrals.

Mitchell H. Rubinstein   

December 31, 2007 in Misc., Legal | Permalink | Comments (0) | TrackBack (1)

AALS Invitation From Stetson Law School

Professor Charles Rose of Stetson Law School writes to invite readers to a training skills program on Jan. 3, 2008. Professor Rose describes the program as follows:

  If you are attending AALS in New York this New Year we would love to see you at the reception Stetson is hosting at the Tuscan Square Restaurant on 16 W. 51st Street on January 3rd beginning at 5 P.M. and ending at 7 P.M.  Please join us for good food, excellent libations and a brief discussion about the future of skills training in the academy.  As part of the reception we will showcase our upcoming Training Skills Program (TSP) set for 21 through 23 May 2008 on our lovely Gulfport Campus, and unveil our pre-trial competition.

Stetson's Training Skills Program will bring together experts in skills training, adult education and communication to provide a training opportunity for full time and adjunct professors that teach skills.  All attendees will receive a Stetson Certificate of Excellence upon completion of the program.  Attendees will work one on one with students in a stress free environment with immediate feedback on their performance and substantive critiques that increase their teaching effectiveness.  They will then be given an opportunity to apply the lessons learned.  Time will also be devoted to the discussion of Skills pedagogy and Skills related scholarship.  Each attendee will get access to Stetson's Online Advocacy Resource Center and will be given a bound copy of the Stetson's Advocacy Teaching Manual, an annual publication that will capture the wisdom of our peers in a format that raises the bar for all of us. 

Now is an exciting time for those of us in the Academy that are committed to quality skills instruction that is part and parcel of a vibrant doctrinal environment.  Stetson University College of Law, with the incredible support of Dean Darby Dickerson, is developing in fact what has long existed in thought, a vibrant academic network of skills professors supporting, mentoring and encouraging one another.  With that goal in mind we wish to invite you to attend our reception on January 3rd. 

Once again, we have reserved a room at

Tuscan Square Restaurant
16 W. 51st Street
Time: 5 -7 PM.

If you have any questions you can reach me at the Marriot on Times Square (I arrive on the 2nd) or by phone at 813-924-4717.

I hope to see as many of you as possible there.  Thanks and best wishes for a Wonderful Year!

Mitchell H. Rubinstein

December 31, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Sunday, December 30, 2007

Why A Conservative Federal Appeals Court Ruled in Favor of Users of Swingers' Magazines Dating Services?

Julie_hilden Another interesting article by Findlaw columnist Julie Hilden is entitled "Why A Conservative Federal Appeals Court Ruled in Favor of Users of Swingers' Magazines Dating Services: The Sixth Circuit's Recent First Amendment Ruling Limiting the Scope of Federal Recordkeeping Requirements" and is dated December 12, 2007. It is about   Connection Distributing Co. v. Keisler, ___F.3d____(6th Cir. 2007), where the 6th Circuit struck down a federal pornography statute on overbreadth grounds under the First Amendent. In so doing, the court ruled in favor Swingers' desire to allow to post nude pictures without identifying themselves by name. As the Ms. Hilden stated:

There was no question that the statue swept broadly, mostly due to its catchall definitions of who could be a "producer" or "distributor." As the court noted, even couples creating sexual images for their own personal consumption were not exempt. Moreover, the court pointed out that there was no exemption for photos that were never intended to be sold or transferred to others: Thus, technically, under the statute, even a couple making a series of home sex videos of themselves, keeping it closely guarded in a safe, would be required to maintain records of the videos, which the federal government could then inspect every four months!

Moreover, although the statute's aim was to combat child pornography, seventy-year-olds fell within the statute just as surely as twenty-two year olds did. Even when a quick glance at the image revealed that, due to the participants' appearance, the images could not possibly be child pornography, records still had to be kept.

Why the Court Refused to Cure the Overbreadth Problem with a Narrowing Construction

Interestingly, although courts have in the past sometimes cured First Amendment overbreadth issues by interpreting statutes to be more narrow than their literal language would suggest, the Sixth Circuit panel refused to do that here.

While it acknowledged that the natural narrowing construction would restrict the statute to commercial uses of images alone, it found no evidence that Congress had actually intended this more limited meaning. Indeed, the court noted that Congress, in passing the statute, clearly was concerned with prohibiting child pornography regardless of whether its purpose was for the photographer's own private use, or for sale.

Check out this interesting article.

Mitchell H. Rubinstein

December 30, 2007 in Constitutional Law | Permalink | Comments (0) | TrackBack (0)

U.S. Dep't. of Justice Bureau of Justice Statistics Publishes Crime Victimization Stats For 2006

The most recent Crime Victimization Stats released on December 12, 2007 are not comparable with previous years as a different methology is used. A Fact Sheet summarizing the report is available here. The full report is available here. Some of the highlights from this report are:

U.S. residents age 12 or older experienced an estimated

25 million crimes of violence and theft in 2006.

- The violent crime rate was 24.6 victimizations per

1,000 persons age 12 or older; for property crimes

it was 159.5 per 1,000 households.

- Males experienced 26 violent victimizations per

1,000 males age 12 or older; females, 23 per 1,000

females age 12 or older.

- Blacks experienced higher rates of violence (33 violent

victimizations per 1,000 persons age 12 or older)

than whites (23 per 1,000).

- Of offenders victimizing males in 2006, 5% were

described as intimates and 47% as strangers. In contrast,

of offenders victimizing females 21% were

described as intimates and 29% as strangers.

- An estimated 25% of all violent crime incidents were

committed by an armed offender. The presence of a

firearm was involved in 9% of these incidents.

- 49% of all violent victimizations and 38% of all property

crimes were reported to the police; 57% of robberies

and 59% of aggravated assaults were

reported to the police.

This information may be helpful to researchers.

Mitchell H. Rubinstein

December 30, 2007 in Legal Research | Permalink | Comments (0) | TrackBack (0)

ADA Does Not Protect Misconduct

8thcir Donvenmuehler v. St. Cloud Hospital, __F.3d___(8th Cir. Dec. 4, 2007), is an interesting ADA case. The court held that the ADA did not protect a nurse who was fired for stealing drugs even though she is no longer using drugs and is in recovery. Additionally, the plaintiff was unable to establish that her drug addiction substanially limited a major life activity. Therefore, she was not even considered a disabled employee protected under the statute.

Mitchell H. Rubinstein

December 30, 2007 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

4th Modifies Test For Concerted Activity When The Protest Concerns Discharge Of A Supervisors

4thcir Smithfield Packing v. NLRB, ___F. 3d___(4th Cir. Dec. 5, 2007), is a major decision concerning protected employee protests. In 1962, the Supreme Court in Washington Aluminum held that a non-union employee walkout to protest the lack of heat was protected concerted activity under Section 7 and the reasonableness of the employees actions were irrelevant.

With respect to protests over supervisory discharges, some circuits have modified this standard. As the court stated in Smithfield:

In sum, we believe the Board’s interpretation of § 7 in the unique context of employee protest regarding supervisory personnel change  is unreasonable and should not be given deference. Instead, we choose to follow the approach of our sister circuits, that employee protest in response to personnel decisions regarding management is protected under § 7 only where such protest is "in fact . . . a protest over the actual conditions of their employment" and the "means of the protest [are] reasonable." Yesterday’s Children, 115 F.3d at 45.

I see no reason for a different standard when supervisory actions are involved. If the issue effects the employees working conditions and the test for mutual aid and protection is otherwise met, that is all that should be required. There is no need to interject a reasonableness requirement.

Mitchell H. Rubinstein

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

Saturday, December 29, 2007

Book Review Highlight-Osborne, Jr., Labor Union Law and Regulation 2007 Cumulative Supplement

Lulr I just received my 2007 Cumulative Supplement to William W. Osborne, Jr., "Labor Union Law and Regulation." If you practice labor union law, teach labor union law or work for a labor union this treatise is simply a must. This is another great treatise from the good folks at BNA and the ABA Section of Labor and Employment Law.  Unlike, the developing labor law and other labor law type treatises, the focus is on the law concerning labor unions. The book and the supplement covers a great many subjects concerning the relationship between and individual and his or her union as opposed to labor management relations. Thus, the book covers such topics as union finances, internal union elections and the LMRDA.

Particularly well written and comprehensive treatment in the supplement is paid to the duty of fair representation. Topics such as the grievants right to an attorney and the grievants presentation of the grievance are covered. Additionally, the supplement contains an entire chapter on ethical and legal issues relating to the practice of union side labor law. Topics such as the attorney client privilege, the importance of identifying the client, conflict of interests and a topic of particular importance to me -whether there is a union representative privilege are covered. As readers of this blog know, I am publishing a law review article on this topic in Berkeley Journal of Labor and Employment Law.

Mitchell H. Rubinstein      

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

Per Curiam Opinions: What's the Point

Per Curiam Opinions: What's the Point is another interesting article by Howard Bashman that was published on December 10, 2007. As the title implies, Mr. Bashman questions the utility of per curiam or unassigned opinions.  As the article states:

As someone who looks at far too many appellate court rulings, I've often wondered what causes appellate judges to designate an opinion as "per curiam" -- a Latin phrase meaning "by the court" -- instead of identifying by name the particular judge who wrote the decision.

Perhaps with the notable exception of Bush v. Gore, the U.S. Supreme Court's practice of using per curiam opinions is both straightforward and sensible. After a case has been orally argued, the Supreme Court ordinarily will decide the case by means of an opinion or opinions that identify their authors, except when a judgment is affirmed by an evenly divided court or the Court decides that certiorari had been improvidently granted.

On the other hand, if the U.S. Supreme Court summarily reverses or affirms without oral argument based solely on the certiorari stage briefing, the Court's disposition will ordinarily be by means of an unsigned per curiam opinion. Sometimes these per curiam decisions garner dissents, and thus it is possible to rule out some potential authors of the majority opinion. Nevertheless, the reader is left to guess who the author of the per curiam decision is based on what the opinion says and how it is written.

Mitchell H. Rubinstein

December 29, 2007 in Civil Law | Permalink | Comments (1) | TrackBack (0)

Friday, December 28, 2007

Divided California High Court Rules Union Free Speech Rights Outweigh Mall's Private Property Interests

The California Supreme Court ruled in a 4-to-3 decision issued on December 24, 2007, that a shopping mall's prohibition against unions and other third parties from urging consumer boycotts of mall tenants was contrary to the state Constitution's right to free speech. The court in Fashion Valley Mall v. National Labor Relations Board plainly summed up its decision, stating, "the right to free speech granted by article I, section 2 of the California Constitution includes the right to urge customers in a shopping mall to boycott one of the stores in the mall.

This appears to be a major victory for unions in California. It also demonstrates that state law could be a powerful weapon for organized labor. Workplace Prof Blog excellent analysis is available here.

Mitchell H. Rubinstein

December 28, 2007 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Court Approves $3.1 Million in Attorneys Fees For Law Professor For Representing Holocaust Victims

Court Approves $3.1 Million Neuborne Fee is an interesting December 7, 2007 New York Law Journal about a $3.1 Million dollar attorney fees award to NYU Law Professor Burt Neuborne for representing Holocaust victims in litigation that resulted in a $1.25 billion settlement with Swiss banks. Professor Neuborne sought fees in the amount of $700 per hour, but $450 per hour was found to be reasonable by U.S. District Judge Frederick Block. As the article states:

Mr. Neuborne had set the lodestar fee $5.7 million, an amount he said represented 8,178.5 hours at a rate of $700 per hour. He then said he deemed it appropriate, in keeping with the practices of special master and the "unique nature of the litigation," to discount that fee by about 25 percent to $4.1 million.

Magistrate Judge Orenstein issued his report in March (NYLJ, March 16). He found that Mr. Neuborne was not precluded from receiving any compensation by the doctrine of judicial estoppel and he agreed that the number of hours billed was appropriate.

But Magistrate Judge Orenstein questioned Mr. Neuborne's proposed hourly rate of $700 per hour and found that he was not entitled to a multiplier. He found that $450 per hour was reasonable.

Part of his justification for lowering the rate was based on marketing analysis. Under that analysis, had Mr. Neuborne engaged in arms length fee negotiation with a person with a fiduciary duty to the class, that fiduciary would have been able to persuade him to accept a significant discount.

In adopting Magistrate Judge Orenstein's recommendation in In re Holocaust Victim Assets Litigation - Fee Application of Burt Neuborne, lead case number 06-CV-0983, Judge Block cited the comments of his colleague in the Eastern District, Edward Korman, who handled the Swiss bank litigation. Judge Korman said that Mr. Neuborne had been retained for post-settlement work and was "entitled to counsel fees."

Mitchell H. Rubinstein


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

Thursday, December 27, 2007

Correction Officer Discharged For Message Posted On Union Internet Message Board Does Not State 1st A. Cause of Action

1stcircuit Curran v. Cousins, ___F.3d___(1st Cir. Dec. 6, 2007), is an important First Amendment decision because it demonstrates just how narrow public employee First Amendement rights are. A corrections officer posted certain offensive comments on an Internet Union message board. The correction officer made what some feel were racist comments and terminated him. He challenged his termination on First Amendent principles and lost.

Interesting, the court found that the speech (being critical of the adminstration) was protected under Pickering, but ultimately held that the speech could be qualished. The court held that "public interest in the employee's speech was outweighed by the danger the speech would cause to the effective functioning of the Department"

This case does not a nice job of reviewing applicable law.

Mitchell H. Rubinstein 

December 27, 2007 in Constitutional Law | Permalink | Comments (0) | TrackBack (0)

D.C. Circuit Affirms Levitz Standard of Requiring Employer To Prove Actual Loss of Majority Status To Withdraw Recognition

Dccir Highlands Hospital Corp. v. NLRB, ___F.3d___(D.C. Cir. Nov. 30, 2007), is a little noticed, but important labor law decision. The D.C. Circuit upheld the Board's Levitz standard with respect to withdrawal of recognition. In Levitz, the Board held that an employer can lawfully withdraw recognition only if it establishes that the union actually lost its majority status. A good faith doubt will not suffice. What this case adds is that this standard must be met on the day the employer withdrew recognition and not by "after the fact evidence". Thus, the employer was found to have committed a ULP by withdrawing recognition in that the petition it had was signed by less than a majority of unit employees.

Mitchell H. Rubinstein

December 27, 2007 in NLRB | Permalink | Comments (0) | TrackBack (0)

Federal Judge May Be Impeached

The Associated Press reported on December 22, 2007 in a story entitled Panel: Judge's Acts May Be Impeachable reports on a federal judicial panel conclusion that there is evidence to support the impeachment of District Judge G. Thomas Porteous Jr. As the article states:

There is evidence to support impeachment of a federal judge for misconduct, including lying in bankruptcy court and accepting gifts from lawyers with cases before him, a federal judicial council said Thursday.

The Judicial Council of the 5th U.S. Circuit said District Judge G. Thomas Porteous Jr. "has engaged in conduct which might constitute one or more grounds for impeachment."

A copy of a judical order in connection with this complaint is available here.

Mitchell H. Rubinstein

December 27, 2007 in Legal News | Permalink | Comments (0) | TrackBack (0)

Louis Jackson Student Writing Competition

Marty Malin writes to inform us of the Louis Jackson National student writing competition. As Professor Malin states:

Just a reminder, as you are grading seminar papers, that when you come across good ones, you may want to encourage the authors to submit them to the annual Louis Jackson Memorial National Law Students Writing Competition in Employment and Labor Law.  Entries are due January 22.  The competition is sponsored and funded by Jackson Lewis and administered by Chicago-Kent College of Law.  Entries are blind judged by a national panel of five labor/employment law professors.  There is one first place award of $3,000 and two second place awards of $1,000.  More information on the competition is available here.

Mitchell H. Rubinstein

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

Wednesday, December 26, 2007

Come Meet Adjunct Prof at AALS Annual Meeting

As most- strike that- all law professors know, the AALS annual meeting is being held from January 2-6, -2008 in NYC. Details here.  While it is mostly attended by full-time law professors, others-including Adjuncts can register to attend. I will be attending my first conference this year.

On Friday, Jan. 4, 2008, between 9 and 10 am, I will be maning the Harvard Law Berkman Center/CALI Exhibit in the main exhibit hall. I will also be attending the Labor Law breakfast at 7 am on Jan. 4th, a lunch at 12:30 and the reception in the Rainbow room that evening. On Thurs. Jan. 3rd, at 12:30, I will be attending a blogging lunch organized by Harvard Law's Berkman Center and CALI.

Please stop bye and introduce yourself. I am hoping to meet many full time and adjunct law professors.

Mitchell H. Rubinstein

December 26, 2007 in Law Professors | Permalink | Comments (0) | TrackBack (0)

NLRB Down to Four Members and Soon to be Down to Two


Initial Posting Updated December 28, 2007

The NLRB is currently down to four members with the position of chair being vacant. This is significant as the Board is currently composed of two Democrats and two Republicans. Historically, the Board does not issue "major" decisions with less than a full five members.

Members Peter Kirsanow (Republican)  and Dennis Walsh (Democrat) were recess appointment. I believe their term expire when this term of Congress ends. With Congress staying in session to prevent recess appointments, I intialled assumed that these recess appointments will continue until Congress and the President reach some type of resolution. However, this is apparently not the case because the NLRB delegated its authority on December 28, 2007 to the General Counsel.

After Jan. 1st, the Board will be left with two Members,  Members Liebman (Democrat) and Schaumber(Republican). The Board's Press release is available here.

Good-by Chairperson Battista. I can't say that I will miss you. Stay tuned. This is likely to get very political in this election year.  This is also likely to significantly delay NLRB decisions.

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein

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

Information About Law Professor Blog Network Founders

I am a proud member of the Law Professor Blog Network. This Network of 50 law professor blogs was founded by University of Cincinnati Law School Associate Dean Paul Caron and Joseph Hodnicki, Associate Director For Library Operations. You can read more about their interesting backgrounds at LawCrossing. Hodnicki is available at this site  and Caron's is available at this site.

Mitchell H. Rubinstein

December 26, 2007 in Blogs, Faculty | Permalink | Comments (0) | TrackBack (0)

NJ Considering Legislation Overruling Shaffer Which Would Place Burden Of Proof With School District

A few years ago, the Supreme Court in Shaffer held that plaintiff children have the burden of proof in special education matters. New York enacted legislation to place the burden of proof back with school districts and it appears that New Jersey may soon be following New York's lead. A November 30, 2007 Newark Star Ledger article has the story which is available here. As the article states:

If passed, the bill would effectively counter a U.S. Supreme Court ruling in 2005 that said the burden should rest with the complaining parties in such cases, typically parents who contend a district's special education services are insufficient for their child.

But the court's opinion and a related district court ruling a year later appeared to leave open the option for states to set their own rules, and a few like New Jersey have since sought to do so.

One after another yesterday, mothers and fathers of children with disabilities testified that the bill would remove an obstacle in what can be tortuous and expensive disputes with districts. The cases typically revolve around specific programs provided for their children or where they are schooled.

While plaintiffs normally have the burden of proof in litigation, special education cases are different. School districts have all of the information and have lawyers on staff. Parents of disabled children have little information and often no virtually nothing about the process. Additionally, children are involved in these cases. Therefore, it is entirely reasonable to require School Districts to prove that there actions were in compliance with the IDEA. The IDEA itself only mandates an "appropriate" education. It does not require that students receive the "best" education.

Mitchell H. Rubinstein

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

Tuesday, December 25, 2007


What is a Secondment you might ask? It is when a law firm places an associate in a corporation for several months. The theory is that both the client and the law firm benefit. This practice was described in a recent New York Lawyer story and a December 4, 2007 ABA Journal Blog story entitled  "New BigLaw Job: Lend-an-Associate" As the article states:

An innovative perk being offered to favored clients by a small but growing number of law firms can also provide big benefits to associates.

So-called secondments—essentially, a loan of an associate to work onsite for a client for a period that often lasts for months—are growing in popularity with major U.S. law firms. Such arrangements have long been customary among their U.K. counterparts seeking to cement client loyalty, reports the National Law Journal in an article reprinted by New York Lawyer (reg. req.).

A secondment allows the client company to get the benefit of the associate's work, at significantly less cost than what would be paid to the firm at ordinary billable-hour rates, the legal newspaper explains. "Generally, the law firm continues to pay the associate, with the client sometimes providing housing or a set stipend to cover expenses."

Meanwhile, the associate gains valuable expertise in the client's business and an understanding of the client's needs, which helps the law firm provide better legal services. And the arrangement also can help solidify a close relationship among counsel and client personnel that promotes long-term loyalty to the law firm.

Mitchell H. Rubinstein

December 25, 2007 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Secret Ballot As A Requirement For A Free Election

Nlrb Columbine Cable Co., 351 NLRB No. 65 (Nov. 30, 2007), is an important case because it reminds us that a secret ballot is a requisite for a free election. In this case where the election was decided by one vote,  two voters cast their ballots where they were observed voting by the Board agent and the Observers. Significantly, there was no evidence that any one actually saw the vote that the employees cast. That however, is not the standard. If the circumstances raise doubts concerning the integrity and secrecy of the election, it will be found objectionable. That is what happened here.

Somewhat surprisingly, Member Walsh dissented. He believes that the NLRB voting process does not require perfection and that perfect laboratory conditions are not always attainable. He would over-rule the objections because there was no reasonable doubt established as to the fairness of the election.

I think the majority is right on. The Secret Ballot process is a core part of the NLRA. If there are doubts about the secrecy of the election, it should be set aside.

Mitchell H. Rubinstein   

December 25, 2007 in NLRB | Permalink | Comments (0) | TrackBack (0)