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Editor: Mitchell H. Rubinstein
New York Law School

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Tuesday, December 25, 2007

Federal judge rejects challenge to Virginia county immigration measures

Federal judge rejects challenge to Virginia county immigration measures is an interesting December 1, 2007 story on Jurist which is about a federal court's rejection of a lawsuit challenging a requirement that the police check the immigration status of all suspects. As the article states:

District Judge James Cacheris of the Eastern District of Virginia [official website] Friday dismissed a lawsuit challenging measures [text and background materials] adopted by the Prince William County Board of Supervisors [official website] that required local police to check the immigration status of anyone suspected of breaking the law and removed access to many public services for illegal immigrants. The lawsuit [PDF text], filed by the Puerto Rican Legal Defense and Education Fund [advocacy website] on behalf of a group of 22 plaintiffs - including legal and illegal immigrants - claimed that the measures violated equal protection laws and that immigration enforcement is a federal concern. Cacheris ruled the plaintiffs lacked legal standing because they could not show they had suffered as a result of the policies.

Mitchell H. Rubinstein

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

Monday, December 24, 2007

Merry Christmas, Happy New Year and Happy Holidays!!

Adjunct Prof Blog wants to take this opportunity to wish our readers a Merry Christmas, Happy New Year and Happy Holidays.

Mitchell H. Rubinstein

December 24, 2007 | Permalink | Comments (0) | TrackBack (0)

Sunday, December 23, 2007

More on Register Guard NLRB E-Mail Decision

Adjunct Prof discussed this decision here. As discussed, majority held that employees have no right to utilize an employers email system and its not discriminatory to prohibit e-mails concerning union matters while allowing employees to use e-mails for other non-work related purposes. Members Liebman and Walsh dissented and reasoned in part that email has transformed the workplace.

The dissent reminded me alot of Member Liebman's recent law review article,  "Decline and Disenchantment: Reflections on the Aging of the National Labor Relations Board", 28 Berkeley J. Labor and Employment Law 569 (2007) which Adjunct Law Prof Blog discussed here. Member Liebman cited many of the same cases and her premise in both her article and her dissent was the same; namely that the NLRB is an aging agency that has not kept up with the modern workforce.

MItchell H. Rubinstein

December 23, 2007 in NLRB | Permalink | Comments (0) | TrackBack (0)

Congress Amends FMLA, Extending Leave to Families of Servicemembers

On December 14, 2007, Congress amended the FMLA to provide additional leave for families of service members. The 2008 National Defense Authorization Act amended the statute to provide for (a) up to six months of leave for family members caring for military veterans injured while on active duty in the U.S. Armed Forces and (b) 12 weeks of leave to family members of servicemembers called up to active duty under certain circumstances.  Additional details are available here.

Mitchell H. Rubinstein

December 23, 2007 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Sexual Harrassment Complaint Reinstated Against Fordham University

2dcirseal Patane v. Clark, ___F.3d___(2d Cir. Nov. 28, 2007), is an interesting Title VII sexual harassment case. The 2d Circuit reversed the district court's FRCP 12(b)(6) motion for failure to state a claim. I bring this case to your attention because the court did a nice job in summarizing Title VII's adverse employment action requirement as well as what constitutes sexual harassment. The court concluded that plaintiff alleged enough facts which, if true, would constitute sexual harassment. The decision is lengthly and readers should follow the above link for additional information.

Mitchell H. Rubinstein   

December 23, 2007 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

How the Push for Religious Accommodation Can Go Too Far: Two Important Recent Examples

Marci_hamilton FindLaw columnist and Cardozo law professor Marci Hamilton in a November 29, 2007 article entitled How the Push for Religious Accommodation Can Go Too Far: Two Important Recent Examples contends that while legislators have the power to go beyond what the Free Exercise and Establishment Clauses require to accommodate the exercise of religion, to do so can sometimes be a mistake. Hamilton offers two detailed examples: The first is the federal government's decision to offer religious "comp time" to employees and pay them for unused hours upon retirement. Professor Hamilton argues that this practice is violative the First Amendment. The second is a bishop's proposal to revive the doctrine of charitable immunity, which once held that the Church could not be held liable in tort.

Professor Hamilton is a well known scholar and she has written some very interesting constitutional material. In this columun she describes some of her other scholarship as follows:

I wrote my 2005 book, God vs. the Gavel: Religion and the Rule of Law, to introduce the public to the fact that religious entities have sought and received numerous privileges to get around important laws, and that a number of these exemptions have the capacity to harm others. I catalogued dozens of examples, including faith-healing interests who pushed to legally immunize parents who medically neglected their children, religious organizations that argued they should not be liable for the child sex abuse they caused, and churches that demanded the right to trump local zoning laws. A year and a half after the book was published, the New York Times ran an excellent series by Diana Henriques pointing to the same phenomenon, entitled "In God's Name."

This column is well worth a read.

Mitchell H. Rubinstein

December 23, 2007 in Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Saturday, December 22, 2007

Possible Amendment To FOIA On Its Way??

New Effort Afoot to Pass FOIA Bill is an interesting Associated Press article dated December 4, 2007 which outlines certain amendments to th 40 year old Freedom of Information Act that have been passed by the House and the Senate. The article describes some of the proposed amendments as follows:

The new Senate version, they said, would require that when the government loses or settles a FOIA case, the complainant's attorneys' fees are to be paid from funds already appropriated to the agency involved in the suit. The same would hold in cases in which the government does not respond within 20 days, the time limit the bill sets for responding to FOIA requests. The bill clarifies that the 20-day limit commences on the date on which the request is first received by the agency.

The rest of the legislation would make sweeping changes to the 40-year-old law, including:

--Establishing a FOIA hotline service for all federal agencies.

--Applying FOIA to government records held by private contractors.

--Creating a FOIA ombudsman to provide requestors and agencies with an alternative to litigation

Mitchell H. Rubinstein

December 22, 2007 in Legal News | Permalink | Comments (0) | TrackBack (0)

What Happens After An Inmate Is Exonerated??

The New York Times is running a series of articles and as well as an audio presentation concerning inmates who have been exonerated. There are over 200 inmates who have been released as a result of DNA evidence and the Times interviewed 137 of those individuals. Many have had difficulty since being released from prison. One article is entitled  A Long Road Back After Exoneration, and Justice Is Slow to Make Amends and is written by reporters JANET ROBERTS and ELIZABETH STANTON on November 25, 2007. As the article states:

The men are among the more than 200 prisoners exonerated since 1989 by DNA evidence — almost all of whom had been incarcerated for murder or rape. Their varied experiences are typical of what The New York Times found in one of the most extensive looks to date at what happens to those exonerated inmates after they leave prison.

The Times worked from a list of DNA-exonerated prisoners kept by the Innocence Project — widely regarded as the most thorough record of DNA exonerations. The Times then gathered extensive information on 137 of those whose convictions had been overturned, interviewing 115.

The findings show that most of them have struggled to keep jobs, pay for health care, rebuild family ties and shed the psychological effects of years of questionable or wrongful imprisonment.

Typically, testing of blood or semen from the crime scene revealed DNA pointing to another perpetrator. The authorities in some of the cases have continued to insist they convicted the right men, and have even fought efforts by some of them to sue for money.

About one-third of them, like Mr. Ochoa, found ways to get a stable footing in the world. But about one-sixth of them, like Mr. Bibbins, found themselves back in prison or suffering from drug or alcohol addiction.

Mitchell H. Rubinstein

December 22, 2007 in Criminal Law | Permalink | Comments (0) | TrackBack (0)

Friday, December 21, 2007

NLRB Issues Major Decision On Employee Use of E-Mail

Nlrb_2 E-mail has transformed the American as well as the global workplace. A 2004 survey showed that more than 81% of employees spend at least one hour a day on email and 10% spend more than 4 hours. Additionally, about 86% of employees send and receive at least some nonbusiness-related e-mail at work. The Register Guard, 351 NLRB No. 70, slip op. at 16 (Liebman, W. & Walsh, D., dissenting).   

What rights do employees have to use their employer's e-mail systems for concerted activities? A divided Board held in the above case that employees have basically none. Remarkably, the Republican controlled Board majority simply declared, in a case of first impression, that employers can prohibit the use of email for Section 7 matters. The majority viewed this holding as consistent with the employers basic property right to regulate and restrict employee use of company property. Under this view, an employer's email policy should be treated no different from other types of employer property such as bulletin boards, telephones and televisions.

Even more remarkable, is that the Board overruled prior law which made it unlawful to discriminate between union solicitation and other forms of solicitaton. Specifically, if you can believe this one, in determining whether a work rule is discriminatory, the discrimination must now be along Section 7 lines. The majority reasons:

We find that the Seventh Circuit’s analysis, rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals.  Thus, in order to be unlawful, discrimination must be along Section 7 lines.  In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. See, e.g., Fleming, supra, 349 F.3d at 975 (“[C]ourts should look for disparate treatment of union postings before finding that an employer violated Sec. 8(a)(1).”); Lucile Salter Packard Children’s Hospital at Stanford v. NLRB, 97 F.3d 583, 587 (D.C. Cir. 1996) (charging party must demonstrate that “the employer treated nonunion solicitations differently than union solicitations”).

For example, an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees. In either case, the employer has drawn a line between permitted and prohibited activities on Section 7 grounds.  However, nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis.  That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.  In each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines.  For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union. . .

Democrats Wilma B. Liebman and Dennis P. Walsh wrote a very lengthly stinging dissent. They write: 

Today’s decision confirms that the NLRB has become the “Rip Van Winkle of administrative agencies.”  NLRB v. Thill, Inc., 980 F.2d 1137, 1142 (7th Cir. 1992). Only a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace.  In 2007, one cannot reasonably contend, as the majority does, that an e-mail system is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper.

National labor policy must be responsive to the enormous technological changes that are taking place in our society.  Where, as here, an employer has given employees access to e-mail for regular, routine use in their work, we would find that banning all nonwork-related “solicitations” is presumptively unlawful absent special circumstances.  No special circumstances have been shown here.  Accordingly, we dissent from the majority’s holding that the Respondent’s ban on using e-mail for “non-job-related solicitations” was lawful.

We also dissent, in the strongest possible terms,  from the majority’s overruling of bedrock Board precedent about the meaning of discrimination as applied to Section 8(a)(1).  Under the majority’s new test, an employer does not violate Section 8(a)(1) by allowing employees to use an employer’s equipment or media for a broad range of nonwork-related communications but not for Section 7 communications.  We disagree, and therefore would also affirm the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by issuing written warnings to employee Suzy Prozanski for sending union-related e-mails.  Finally, we dissent from the majority’s finding that the Respondent did not insist on a bargaining proposal that codified the Respondent’s unlawful discriminatory practice of prohibiting union-related e-mails while allowing other nonwork-related e-mails . . .

The major difference between the majority and the minority boils down to how one views e-mail communications. If e-mail is governed by decisions dealing with company equipment, then the majority has a point. However, if e-mail is concerned a form of solicitation, then it should be governed by the solication rules that the Supremes approved of in Republic Aviation v. NLRB, 324 U.S. 793 (1945). Frankly, I believe that the dissent has the much better argument. As the dissent explains:

Given the unique characteristics of e-mail and the way it has transformed modern communication, it is simply absurd to find an e-mail system analogous to a telephone, a television set, a bulletin board, or a slip of scrap paper.  Nevertheless, that is what the majority does, relying on the Board’s statements in prior cases that an employer may place nondiscriminatory restrictions on the nonwork-related use of such equipment and property.  None of those “equipment” cases, however, involved sophisticated networks designed to accommodate thousands of multiple, simultaneous, interactive exchanges.  Rather, they involved far more limited and finite resources.  For example, if a union notice is posted on a bulletin board, the amount of space available for the employer to post its messages is reduced.  See, e.g., Sprint/United Management Co., 326 NLRB 397, 399 (1998) (employer “may have a legitimate interest in ensuring that its postings can easily be seen and read and that they are not obscured or diminished in prominence by other notices posted by employees”).  If an employee is using a telephone for Section 7 or other nonwork-related purposes, that telephone line is unavailable for others to use.

This decision demonstrates once again that politics are alive and well at the Board. On the postive site, Chairperson  Battista, who was in the majority, term ends in a few days. Lets hope that the President does not re-appoint him.

Professor Hirsh over at Workplace Prof Blog has described this decision as "awful" and "nonsensical." I couldn't agree more. On the postive side, Professor Hirsh believes that the no new Board members will be confirmed until the next election. I am not sure if he is entirely correct as the President may be able to make recess appointments.

Mitchell H. Rubinstein

December 21, 2007 in NLRB | Permalink | Comments (0) | TrackBack (0)

The Importance of Tenure

2ddept_2  In the public sector, tenure is created by state law and is considered a property interest that cannot be taken away without due process of law. What about private schools and universities? In those situations a teacher's tenure is defined by contract.

Bane v. Hebrew Academy of Five Towns, ___A.D.3d___ (2d Dep't Dec. 4, 2007), is one such example. There the court over-turned the discharge of a tenured teacher with more than 50 years of seniority. Why? His contract provided that he could only be discharged "for cause barring emergent financial circumstances." Here the plaintiff was terminated for "financial reasons," but there was no emergent financial situation. Therefore, his discharge violated the contract.

Mitchell H. Rubinstein   

December 21, 2007 in Education Law | Permalink | Comments (0) | TrackBack (0)

New Blog on Teaching

Albany is hosting a new blog based on Roy Stuckey's Best Practices in Legal Education  and the Carnegie Foundation's recent report on Legal Education.  The Blog is at http://bestpracticeslegaled.albanylawblogs.org/ .  This looks to be a great forum for those intereste generally in teaching, and particularly for those interested in teaching reform.

EAL

December 21, 2007 in Blogs, Faculty | Permalink | Comments (0) | TrackBack (0)

Thursday, December 20, 2007

Justice Bill Clinton??

A very interesting December 15, 2007 Wall Street Journal article by Douglas W. Kmiec is entitled "Justice Clinton." The author comments that Hillary just might appoint Bill to the Supreme Court to keep him out of her way. After all, Bill got his license to practice law back in 2006 after it was suspended. Clinton, of course, would not be the first President to become a Supreme Court Justice. The first xPresident to do so was President Taft.

President Taft, however, never disgraced the Office of President, was never impeached or lost his license to practice law. What a role model President Clinton could be? Just what we need...

Mitchell H. Rubinstein

December 20, 2007 in Current Events | Permalink | Comments (1) | TrackBack (0)

Controversy Continues at Ave Maria Law School

In a story entitled Ave Maria still looks to move, puts name on block Julie Kay in the December 17, 2007  National Law Journal reports on the continued controversary at Ave Maria Law School. Ms. Kay reports that the school is trying to sell the naming rights to the law schools new South Florida location for $20 million. Ave Maria founder Tom Monaghan also reportedly is having the school move to South Florida because Virgin Mary directed him to move the school to Florida. Ms. Kay also reports on litigation filed by several law school professors who were terminated.

The law school is currently located in Michigan.

Mitchell H. Rubinstein

December 20, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

State Law Which Provides Immunity To Correction Employees Is Constitutional

Nysctappeals_2  Haywood v. Drown, ___N.Y.3d___(Nov. 27, 2007), is an important 42 U.S.C. Sec. 1983 decision by the New York Court of Appeals. Plaintiff sought to bring a 1983 action against a correction officer for alleged mistreatment. However, New York Correction Law Sec. 24 bars all such suits in state court. The plaintiff challenged the constitutionality of this statute by arguing that this statute prevents the adjudication of federal 1983 claims and therefore this statute should be declared unconstitutional by virtue of the Supremacy  Clause. In a lengthly decision, the Court rejects this argument and upholds the statute.

The Court reasoned that states can deny enforcement of a federal right if they have a "valid excuse for doing so." One permissible exception is a neutral rule concerning the administration of state court systems. The Court felt that this statute was within the scope of this exception.

Mitchell H. Rubinstein   

December 20, 2007 in Constitutional Law, Employment Law | Permalink | Comments (0) | TrackBack (0)

FMLA Lawsuit Barred On Basis of Sovereign Immunity

8thcir McKlintic v. 36th Judicial Circuit, ___F.3d___ (8th Cir. Nov. Nov. 28, 2007) is an important decision under the FMLA concerning sovereign immunity. The issue in the case was whether state sovereign immunity was abrogated by the self care provisions of the FMLA. The court holds that sovereign immunity was not abrogated. The opinion is brief because there is recent 8th circuit precedent. What is most interesting about this decision, however, is that the majority opinion was via a per curiam unsigned opinion while a concurrence was signed by one judge. It does not take rocket science to figure out who the two remaining judges were. Additionally, in this 4 page circuit court opinion, the concurrence states that the issue of whether sovereign immunity was abrogated by virtue of the FMLA self care provisions "needs resolution by the U.S. Supreme Court."

While the opinion is brief, it does provide a number of cites that researchers may find helpful. As for eventual Supreme Court review, that seems like a bit of a stretch. However, for those looking for a law review topic, this may be something to look into.

Mitchell H. Rubinstein   

December 20, 2007 in Employment Law, Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 19, 2007

Basketball Great Michael Jordan Obtains Summary Judgement Against A Woman Claiming That Jordan Agreed To Pay Her 5 Million Dollars To Keep Their Relationship Confidential

In Jordan v. Knafel, (Ill. Ct. App. 3d Div. Dec. 12, 2007), a woman alleged that Jordan agreed to pay her 5 million dollars not to file a paternity suit and to keep their romantic involvement confidential. She alleged that she had relations with Jordan shortly after he was married to someone else.

In a lengthly decision, the court granted Jordan summary judgement. Ultimately, to even if a contract was entered into the court held that was subject to recission based upon mutual mistake. DNA tests established that Jordan was not the father.

Interestingly, Jordan admitted that he previously paid this woman $250,000 as well as medical expenses.

Mitchell H. Rubinstein   

December 19, 2007 in Legal News | Permalink | Comments (0) | TrackBack (0)

Bench Book For U.S. District Court Judges

A copy a the Bench Book for U.S. District Court Judges published in Sept. 2007 is available here.

Hat Tip: Law Librarian Blog

Mitchell H. Rubinstein

December 19, 2007 in Legal Research | Permalink | Comments (0) | TrackBack (0)

No Secret Trials at Guantanamo Bay

The December 19, 2007 LA Times is carrying an interesting Op Ed piece by Air Force Brig. Gen. Thomas W. Hartmann who is a legal advisor to the Department of Defense Office of Military Commissions entitled There will be no secret trials. Gen. Davis responds to allegations made by a former prosecutor and states:

Regarding his new allegations that the trials are not open, Davis knows that national security demands that certain evidence remain classified. He had an especially high security clearance for that very reason. But there will be no "secret" trials. Though we must safeguard classified information in order to protect ongoing operations and our soldiers, sailors, airmen and marines, not one piece of evidence will go to a commission jury without review and the opportunity to object by the accused and his counsel.

Military commissions are now moving forward fairly and transparently. As they continue, critics will see uniformed service members, including judges, prosecutors and defense counsel, conduct trials with the dignity, fairness, and respect for law that defines American military justice — a justice system that remains the envy of the world.

Mitchell H. Rubinstein

Hat Tip: Gifford, Robert, MAJ, DoD OGC

December 19, 2007 in Legal News | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 18, 2007

11-Person Jury Verdict Upheld

Nysctappeals_2  In People v. Gajadhar  ___N.Y.2d ___(Dec. 18, 2007), the New York Court of Appeals upheld a murder conviction that was decided by an 11 jury verdict. The defendant was found to waive his right to a 12 person juror was hospitalized three days into deliberations.   Amendments to Article 1, §2 of the state Constitution and court rulings interpreting the evolving text of the section have made it clear that defendants in non-capital cases can consent to having juries smaller than 12 members decide their cases, the majority found yesterday.

"The 1938 constitutional amendments clearly dispelled the notion that a defendant cannot consent to an alteration of the common-law jury of 12 in a noncapital criminal case," Judge Victoria A. Graffeo wrote for the majority in Gajadhar. "Since the waiver language in Article 1, section 2 for civil cases permits juries of less than 12, unlike the dissent, we are not persuaded that the identical language, when applied to criminal cases, prohibits a defendant's waiver allowing deliberations to continue with 11 jurors." This case also generated a 2 Judge dissent.

A New York Law Journal article about this case is available here.

Mitchell H. Rubinstein

December 18, 2007 in Criminal Law | Permalink | Comments (0) | TrackBack (0)

Will Large Law Firms Start Offering Attractive Fringe Benefits??

Latham Ramps Up Parental Benefits; Will Other Firms Follow? is an interesting December 14, 2007 article by Kellie Schmitt which first appeared in The Recorder and was reprinted on law.com. It increases time off for new parents from the required 12 weeks (by virture of the FMLA) to up to 18 weeks. The article questions whether this may be the beginning of a law firm trend? As the article states:

LATHAM & Watkins announced a new parental leave policy for associates this week that significantly ups the amount of time biological and adoptive parents can take leave while receiving their full base salary.

Some observers say that, much like associate salaries, Latham's move -- and some by other firms -- could have ripple effects.

"Any time a market leader makes a move that can be interpreted as a recruiting tool, other firms in the space will take a long, hard look," said Peter Ocko, a Los Angeles-based associate recruiter for Major, Lindsey & Africa.

Latham's new policy scraps one that provided 12 weeks for primary-caregiver birth mothers and four weeks for new fathers and adoptive parents. It replaces it with 18 weeks for birth mothers who are primary caregivers and adoptive parents who are primary caregivers. It also increases to 10 weeks the time other primary caregivers -- such as a biological father -- can take off.

Unfortunately, I do not believe that increased leave will be followed by most firms. The reason is simple economics. The less time an associate works, the less he or she can bill. Associates in most firms are viewed as replaceable worker bees and most firms do not expect to keep them all.

More fundamentally, the practice of granting female employees greater leave than male employees may raise sex discrimination type issues.

Mitchell H. Rubinstein

December 18, 2007 in Law Firms | Permalink | Comments (0) | TrackBack (0)