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Editor: Mitchell H. Rubinstein
New York Law School

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Monday, June 30, 2008

9th Holds Damages For Missed Work Due to Stress Are Allowed For FMLA Violations

9thcircuit Farrell v. Tri-County, ___F.3d ___(9th Cir. June 27, 2008), is an important FMLA case. The case is also a classic example of a small case making important law-which happens all the time in labor law. At issue was  $1,100 in damages due to the wrongful denial of FMLA leave. The 9th drew a distinction between emotional distress damages, which are not recoverable from missed work damages due to stress caused by the denial of FMLA leave, which the court held are recoverable. As the court reasoned:

Here, the jury’s verdict reflects that Farrell was not
awarded FMLA damages for emotional distress, but rather
“for days of work that he missed because of stress or other
mental problems resulting from the wrongful denial of FMLA
leave.” (Emphasis added). Unlike emotional distress, which
requires valuating an intangible, see, e.g. Brumbalough, 427
F.3d at 1007-08, this calculation can easily be quantified, in
accordance with Section 2617, as an “actual monetary
loss[ ],” Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721,
740 (2003), by determining the wages Farrell would have
earned on the days he could have worked, but was unable to
do so because of TriMet’s violation.
[3] The jury’s verdict in this case is consistent with Tri-
Met’s position that “Congress decided that aggrieved employees
must bear the cost of their own psychological damages
when it comes to harm caused by employers violating
FMLA” because the verdict does not require TriMet to compensate
Farrell for “psychological damages.” Rather, the verdict
requires TriMet to compensate Farrell for the wages he
lost “by reason of [its] violation.” 29 U.S.C.
§ 2617(a)(1)(A)(i)(I). The jury’s verdict was limited to wages
actually lost as a result of TriMet’s FMLA violation, and thus,
the award was not “a back-door means of recovery for psychic
injuries.”

Mitchell H. Rubinstein

June 30, 2008 in FMLA | Permalink | Comments (0) | TrackBack (0)

Employer Has Standing To Seek Disqualification of Employee Attorney Under N.Y. Law

Falk v. Chittenden, ___N.Y. 3d ___(June 26, 2008), is an important case. Under Civil Service Law Section 75, a public employer retains a hearing officer to hold a hearing over disciplinary charges. The Court of Appeals held that the public employer has standing to seek the removal of the employees attorney on the basis of conflict of interest. The employer had filed a separate action seeking the attorneys removal while the disciplinary case was pending.

The court also held that under Disciplinary Rule 5-108(A) an attorney hasduty to maintain the confidences and secrets of former clients and therefore disqualification was proper.

What is most interesting about this case was that disqualification was sought in court and a ruling was not sought from the Hearing Officer.

Mitchell H. Rubinstein

June 30, 2008 in Lawyers | Permalink | Comments (0) | TrackBack (0)

Court hold that the terms of a collective bargaining agreement permits employee organization to demand arbitration of a grievance on behalf of retiree

Court hold that the terms of a collective bargaining agreement permits employee organization to demand arbitration of a grievance on behalf of retirees
Matter of City of Niagara Falls v Niagara Falls Police Club, Inc., 2008 NY Slip Op 05459, Decided on June 13, 2008, Appellate Division, Fourth Department

The City of Niagara Falls resisted efforts by the Niagara Falls Police Club to submit a grievance concerning healthcare benefits for retired police officers to arbitration.

Supreme Court rejected the City’s application for a stay of arbitration and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that dispute between the parties over healthcare benefits for retired police officers is properly the subject of arbitration based on the terms of the parties' collective bargaining agreement (CBA).

The court pointed out that the CBA sets out a grievance procedure to resolve disputes that arises "concerning the interpretation or application of the terms of this contract or of the rights claimed to exist, hereunder." Further, said the court, the CBA specifically provides that, in the event that there is not a satisfactory resolution of a grievance, "either party may seek resolution by arbitration."

As the CBA expressly refers to retirement benefits in defining the term grievance, and the grievance procedure set forth in the CBA is "not predicated upon the status of the affected beneficiaries" – i.e., it does not distinguish between active employees or retirees – the Appellate Division concluded that the Police Club “is entitled to pursue arbitration on behalf of the retirees.”

Reprinted with permission from New York Public Personnel Law Blog
Mitchell H. Rubinstein

June 30, 2008 in Arbitration Law | Permalink | Comments (0) | TrackBack (0)

The Internet and Politics

Do you use the internet to find out information about the candidates? I certainly do. A new poll by Pew Internet & American Life Project  demonstrates that 46% of Americans use the internet as well for political information purposes. 6% have used the internet to make political contributions. This demonstrates the power of the internet and how it has changed everything.

Mitchell H. Rubinstein

Hat Tip: Law Librarian Blog   

June 30, 2008 in Politics | Permalink | Comments (0) | TrackBack (0)

Sunday, June 29, 2008

Love Contracts

Heart Office Romance is an interesting June 6, 2008 New York Law Journal article which caught my eye because we just covered this topic in my employment law class this summer at New York Law School. It is about efforts by some employers to have dating employees sign "love contracts." What these contracts really are is an acknowledgement of the relationship and of company policy.

In my view, this is largely a gimmick. Every Feb. 14, 2008 some newspaper runs an article about this. Such contracts serve the same function as an employee manuel or employee policies so long as the employee in fact is given notice of the policies.

Though these love contracts are largely untested, the goal of the employer is use them as a Faragher affirmative defense. As you will recall, in sexual harassment cases, an employer can avoid liablity if it has a sexual harassment policy where the victim can complain and the victim unreasonably refused to follow (ie use) this policy.   

This article does provide some interesting statistics. Some 59% of employees admit to having an office romance. That is huge and certainly raises public policy questions.

Mitchell H. Rubinstein

June 29, 2008 in Employment Law | Permalink | Comments (0) | TrackBack (0)

U.S. News Considering A Change In Law School Rankings

Changing the Law School Ranking Formula is an important June 26, 2008 U.S. News blog that I am sure all law school deans are reading. They are considering the following changes:

1. Count full time and part time LSAT data; currently US News only utilizes FT data

2.  Compute our bar passage rate component (school's bar pass rate/jurisdiction's bar passage rate) using only the data of first-time takers who are graduates of American Bar Association-accredited schools. Currently, U.S. News uses the rate of all first-time test takers from a state regardless of the ABA accreditation of their law schools.

It appears to me that these are both good ideas. However, why limit this to only two changes. It seems to me that U.S. News should formally sit down with the Deans of all ABA accredited schools and solicit feed back about what criteria they believe should be used. Perhaps if U.S. News operated in that manner, their rankings would be less controversial.

Mitchell H. Rubinstein

June 29, 2008 in Law Schools, Rankings | Permalink | Comments (0) | TrackBack (0)

Congressional Research Service Issues Report on Basic ERISA Law

On April 10, 2008, the Congressional Research Service issued a 72 page report with 299 footnotes and a glossary about ERISA. The report provides background about the history of ERISA and a overview of the statute's requirements. This is an excellent primer on ERISA which lawyers, students and researchers should find extremely helpful. A copy of this report is available here Download ERISASummary.pdf .

That table of contents provides a good summary of this work. It is as follows:

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Historical Development of Pension Plans in the Unites States . . . . . . . . . . . 2
Origins of ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Types of Qualified Retirement Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Hybrid Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Revenue Act of 1978 and 401(k) Plans . . . . . . . . . . . . . . . . . . . . . 5
Principal Types of Defined Contribution Plans . . . . . . . . . . . . . . . . . . . . . . . 7
ERISA: An Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ERISA Title I: Protection of Employee Benefit Rights . . . . . . . . . . . . . . . . . . . . 7
A. Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. Reporting and Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Summary Plan Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Summary of Material Modifications . . . . . . . . . . . . . . . . . . . . . . . . . 9
3. Annual Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. Benefit Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5. Annual Funding Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6. Notice of Freedom to Divest Employer Securities . . . . . . . . . . . . . 11
C. Participation Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
D. Benefit Accrual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. Anti-cutback Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2. Benefit Accrual and Age Discrimination . . . . . . . . . . . . . . . . . . . . 14
E. Minimum Vesting Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Breaks in Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
F. Benefit Protections for Spouses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1. Preretirement Survivor Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2. Postretirement Survivor Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3. Qualified Domestic Relations Orders . . . . . . . . . . . . . . . . . . . . . . . 18
G. Buyouts, Mergers, and Consolidations . . . . . . . . . . . . . . . . . . . . . . . . . . 19
H. Plan Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1. Funding Requirements for Single-employer Plans . . . . . . . . . . . . . 20
2. Valuation of Plan Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3. Benefit Limitations in Underfunded Plans . . . . . . . . . . . . . . . . . . . 22
4. Lump-sum Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5. Funding Requirements for Multiemployer Plans . . . . . . . . . . . . . . 24
I. Fiduciary Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1. Duty of Loyalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2. Duty of Prudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3. Duty to Diversify Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4. Duty to Act in Accordance with Plan Documents . . . . . . . . . . . . . 30
5. Prohibited Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6. Investment Advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7. Fiduciary Duty and Participant-Controlled Investment . . . . . . . . . 34
8. Fiduciary Liability under ERISA Section 409 . . . . . . . . . . . . . . . . 36
J. Administration and Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
1. Civil Enforcement under Section 502(a) . . . . . . . . . . . . . . . . . . . . . 37
2. Claims to Enforce Benefit Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3. Claims to Redress Breaches of Fiduciary Duty . . . . . . . . . . . . . . . 40
4. Claims to Enforce Plan Provisions and “Other Equitable Relief” . 41
5. Criminal Enforcement under ERISA and Other Federal Law . . . . . 43
K. Preemption of State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
1. Section 514 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
2. Section 502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
L. Special Regulation of Health Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . 49
1. COBRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
2. HIPAA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
3. Mental Health Parity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
4. Maternity Length of Stay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
5. Reconstructive Surgery Following Mastectomies . . . . . . . . . . . . . 51
ERISA Title II: Internal Revenue Code Provisions . . . . . . . . . . . . . . . . . . . . . . 52
A. Limits on Plan Contributions and Benefits . . . . . . . . . . . . . . . . . . . . . . 52
1. Defined Benefit Plan Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
2. Defined Contribution Plan Provisions . . . . . . . . . . . . . . . . . . . . . . 53
B. Coverage and Nondiscrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
1. Nondiscrimination Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
2. Safe Harbor Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
C. Distributions from Qualified Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
1. Plan Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
2. Additional Tax on Early Withdrawals . . . . . . . . . . . . . . . . . . . . . . 57
3. Rollovers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
D. Integration with Social Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
E. Special Rules for “Top-heavy” Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ERISA Title III: Jurisdiction, Administration, and Enforcement . . . . . . . . . . . . 60
ERISA Title IV: Pension Benefit Guaranty Corporation and
Plan Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
A. Premiums for Single-employer Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
B. PBGC Insurance Limit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
C. Plan Terminations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
1. Standard Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
2. Distress Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
3. Involuntary Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
D. Employer Liability to the PBGC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
E. Reportable Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
F. Notice Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
G. Premiums for Multiemployer Pension Plans . . . . . . . . . . . . . . . . . . . . . 64
H. Withdrawal Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
List of Tables
Table 1. Number of Plans, Participants, and Assets by
Type of Plan, 1975-2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Table 2. Maximum Average 401(k) Contributions for
Highly Compensated Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Mitchell H. Rubinstein

June 29, 2008 in Employee Benefits Law | Permalink | Comments (0) | TrackBack (0)

Lawyer Sanctioned By Being Directed To Write Bar Journal Article On Civility

Here is a new one. U.S. District Judge Vicki Miles-LaGrange (W.D. Okla.) in Johnson v. Government Employees Insurance Co., ___F.Supp. 2d___(W.D. Okla. April 14, 2008), sanctioned an attorney for unprofessional letters he wrote to opposing counsel stating such things as:

"Your self-serving comments are putting me to sleep." "People like you have no intention of making the world a better place to live; "Their only interest is in making lots of money for themselves;" "Please spare me your phony sermons".

The sanctions did not involve any money. Instead, the lawyer was directed to write a bar journal article to the Oklahoma Bar Association on civility. As the court stated:

Mr. Pignato is hereby DIRECTED within six (6) months of the date of this Order to submit to the Oklahoma Bar Journal for publication an article pertaining to civility and professionalism as they relate to adversary proceedings. Further, Mr. Pignato is directed to include in the article why he writing the article and to write the article to younger/newer lawyers. Finally, Mr. Pignato is directed to provide the Court with a copy of said article when it is submitted to the Oklahoma Bar Journal. 

It will be interesting to see if the Oklahoma Bar Journal will publish this article. I suspect they will, if if is any where decent. Query, however, how much work this attorney is going to put into this article.

Mitchell H. Rubinstein

June 29, 2008 in Lawyers | Permalink | Comments (0) | TrackBack (0)

The New TWEN

I have been a big user and fan of TWEN as you may have noted in earlier posts.  TWEN was recently updated this summer, which I discovered (much to my dismay) while teaching my summer Business Organizations class.  One of the key parts of this course is for the students to keep a reading journal and make weekly posts and replies (to each other).  Among other things the TWEN revision takes away the ability to see threaded posts and discussion lists look like my comcast inbox (flat in stead of layered, if that makes any sense).  Other problems is that you are limited to one left hand tab for all discussion lists.

If you are using TWEN in the Fall, take a look and see what has changed.  Let your Westlaw rep know if you are unhappy with the changes.  If you are teaching now and are having problems, let your rep know ASAP.

This reminds me of the "New Coke."  Bring back the "Classic."

EAL

June 29, 2008 | Permalink | Comments (1) | TrackBack (0)

Saturday, June 28, 2008

Lawyer Suspended From His Job For 30 Days For Asking Another Lawyer For A Kiss

Lawyers are employees too. Sometimes we do inappropriate things. Some lawyers are in a union or work for the government and are entitled to a hearing before they can be disciplined. Matter of Dep't. of Housing (Ralph B) (NYC Office of Admininstrative Appeals May 23, 2008) is one such case.  This was case involved a decision by an ALJ rendered after a hearing pursuant to New York Civil Service Law Sec. 75.

The lawyer was found to have squeezed another lawyers arm and ask for a kiss outside of court in the hallway. The ALJ described the incident as follows:

Before appearing on that case, Mills sat on a bench in a hallway outside the courtroom
and spoke with another client concerning an unrelated case (Tr. 9-10). According to Mills,
respondent called out her name and approached (Tr. 9). Respondent introduced himself and said, “We’ve been waiting for you all morning” (Tr. 10). Mills smiled, told respondent that she was speaking with a client, and said that she would go the courtroom when she was ready (Tr. 10). Mills recalled that respondent said something like, “Oh, that’s your weapon, your smile” (Tr. 10). After Mills laughed, respondent sat next to her on the bench, showed her a court decision that he was relying upon, squeezed her arm, and said, “You know, look, we have the authority to settle this case with the landlord” (Tr. 10, 17). Mills told respondent, “I want the judge to decide the case” (Tr. 10). Respondent replied, “Well how about a kiss then?” (Tr. 10, 34). Uncomfortable, Mills moved away, told respondent that she was married, resumed talking to her client, and went to the courtroom five minutes later (Tr. 11, 30). She was shocked and embarrassed by respondent’s comment (Tr. 10-11). Inside the courtroom, Mills did not mention the incident (Tr. 10-11, 13; Resp. Ex. A). Instead, when she returned to her office that
afternoon, she spoke with a supervisor (Tr. 17). The supervisor wrote a letter to the Department complaining about respondent’s conduct (Tr. 17; Resp. Ex. B). Several months later, Mills met with a Department representative and signed a statement regarding the incident (Tr. 26-27; Resp. Ex. C).

Significantly, the attorney denied these events. For that reason, the penalty appears to be on the light side. The ALJ, did however, note that the attorney had been employed for 12 years with no other discipline. Note, under Civil Service Law Sec. 75, ALJ decisions are only recommendations. The Agency makes the final determination.   

Mitchell H. Rubinstein

Hat Tip: New York Public Personnel Law

June 28, 2008 in Lawyers | Permalink | Comments (0) | TrackBack (0)

Supreme Court Clerk Blog

Want to be a U.S. Supreme Court clerk? Check out SCOTUS Law Clerk Placement Blog. Recent postings include a description of the application process and a listing of feeder appellate judges. Even if your not in the market to become a Supreme Court clerk, this blog makes a very interesting read.

Mitchell H. Rubinstein

June 28, 2008 in Supreme Court | Permalink | Comments (0) | TrackBack (0)

Friday, June 27, 2008

USERRA Applies To Claims of Harassment

An Alabama district court held that a National Guard member fired from his job lant has no unlawful termination claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), but that he may pursue a claim for harassment based on his military status. The case is Dees v. Hyundai Motor Mfg. Ala. LLC, (M.D. Ala. May 21, 2008)(registration required).

In partially denying summary judgment to Hyundai Motor Manufacturing, the court stated that USERRA's provision that a military service member not be denied "any benefit of employment" because of his service is broad enough to include a harassment claim. Citing cases from other courts, the court held that USERRA prohibits a hostile work environment based on military service, as analogous acts of sexual or racial harassment are prohibited by Title VII of the 1964 Civil Rights Act. The court focused on the fact that "USERRA is intended to be construed broadly for the benefit of returning veterans," and that the court's holding "is consistent with the purpose of USERRA--namely, to encourage individuals to join the military by assuring them that their jobs are not at risk. An assurance that employees cannot be fired on account of their military service is meaningless without assurance that the work environment will not be so intolerable that they will feel forced to quit."

Mitchell H. Rubinstein

June 27, 2008 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Novel Issues Involving The Recognition of Gay Marriages

The June 8, 2008 Washington Post ran an interesting article entitled Calif. Battle Over Gay Marriage Raises Novel Legal Questions. It notes that the issue of California gay marriages is being proposed as a constitutional amendment and raises the question what would happen to the thousands who are expected to marry if this amendment actually passes. How's that for a law school hypo??

As the article states:

If the November measure were to pass, we would be entering unprecedented territory," said David B. Cruz, an expert on constitutional law at the University of Southern California in Los Angeles. "We have never seen a constitutional amendment like this in California that would take away rights that people had already exercised."

The language of the measure does not seem to suggest revoking marriages that take place between June and November, legal experts say. But such a move would depend on the courts' interpretation of the proposed amendment.

Experts say that if the measure passes, the state may choose to recognize the marriages, creating a pocket of married same-sex couples. "It just means that people who didn't take advantage of that window can't get married until or unless that amendment was repealed down the road," said Vikram Amar, a law professor at the University of California at Davis.

Hence the hurry with which couples are booking appointments with wedding vendors and county clerks. San Francisco city officials expect as many as 500 couples to marry per day, for days on end. In Los Angeles County, the clerk's phone is ringing off the hook.

Mitchell H. Rubinstein

June 27, 2008 in Constitutional Law, Law Review Ideas | Permalink | Comments (1) | TrackBack (0)

Thursday, June 26, 2008

Who Is Responsible For Blogging Comments??

Professors Sunstein and Volokh had an interesting video debate about who owns comments posted on blogs. That is an important issue and is likely to become more important as the use of blogs continues to increase. There debate can be viewed here.

Professor Leiter, who runs multiple blogs and who discussed this on his Law School Report Report Blog,  offers a simple solution to limit liablity. Limit who could post and pick and choose which comments are  actually posted on your blog.(For example, Brian has rejected a number of my comments in the past). That is exactly the problem, however. With respect to Professor Leiter, if a blog editor moderates what could be posted he or she is making a value judgement that later may be challenged.

One thing blog editors could do would be to include a disclaimer on their blog. I have one on mine which readers of this posting are authorized to copy if they would like. I am frankly stunned that most law professors do not include such disclaimers. I would even go a step further and recommend that Network owners include disclaimers. I have mentioned this to several well known professor bloggers, but no one seems to be listening. Perhaps, the Sunstein/Volokh debate may open up some professor's eyes.

In any event, this is also an excellent issue that is ripe for law review commentary.

Mitchell H. Rubinstein

June 26, 2008 in Blogs, Faculty, Blogs, General, Blogs, Legal, Law Review Ideas | Permalink | Comments (1) | TrackBack (0)

ADA May Actually Be Amended

The June 26, 2008 New York Times in an article entitled House Votes to Expand Civil Rights for Disabled reports that the House overwhelmingly passed the ADA Restoration Act. The Senate is expected to pass this Bill and the President has expressed support with the concept, though apparently he has some concerns with the Bill. The House Bill, H.R. 3195, is available here.

In my view, the most important part of this Bill is that it will legislatively overrule the Sutton Supreme Court case which held that mitigating measures (e.g., eye glasses) must be considered when determining whether or not someone was disabled. Thus, if your disablity could be controlled by medication, your not disabled. 

The Chief Republican sponsor, Representative F. James Sensenbrenner Jr. of Wisconsin spoke about the need for this Bill in detail during a 2007 presentation at New York Law School. Available here.

Mitchell H. Rubinstein

June 26, 2008 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

So You Want To Be A Law School Professor

New Law School Programs Give Lawyers a Shot at Teaching Law School Programs Give Lawyers a Shot at Teaching is an interesting June 27, 2008 National Law Journal article via law.com (registration required). It's about the increasing hiring of visiting professors who, unlike tenure track professors, have significant practice experience. The idea is that these visitors will have the time to develop and publish which they could then use when they go on the FT job market. The pay is about $ 60,000 for 9 months work-but the article does not mention that full timers work those same "9 months." As the article states:

Law schools that have initiated or expanded VAP programs in the past few years include Cornell Law School, Duke Law School, the University of Texas School of Law and the Benjamin N. Cardozo School of Law.

"We used to call them 'visitors from nowhere,'" said Michael Herz, vice dean of Cardozo Law. When the VAP concept was formalized roughly five years ago, he added, a "population of potential professors who were not quite sure of what they wanted to do" outside law practice were assisted by their campus colleagues in "becoming stronger candidates" in the academic market.

"But far and away the most important piece of this is allowing the future professor to do some writing - in a setting where they have the time and mentoring and the culture to do it effectively," Mr. Herz added.

Professor Robert A. Hillman of Cornell Law, chairman of his school's faculty appointments committee, said most of the VAPs at his campus have been young lawyers not yet in practice, and mostly Ph.D. candidates.

"Rather than taking assistant professor positions without tenure, this is a good way for them to get their feet wet at a law school with plenty of time to produce published articles," said Mr. Hillman, who noted that U.S. law schools "seriously" prize faculty members with strong publishing backgrounds.

From the standpoint of his own campus and others, said Mr. Hillman, the VAP program, which draws worldwide applicants, is "another pool to draw from in creating a more diverse faculty."

With respect to the law school academy, you got it backwards. Your training lawyers. Your students pay your salaries- not your law reviews. You should seek professors with real practical experience who can share their insights with students.

Additionally, a VAP is not practical for most lawyers. Since the job is only for 2 years and the full time law school market remains so kean, many of these VAP are not going to be able to land jobs or at least jobs in locations where they are willing to teach. Then what?? Your only going to get a certain class of people applying for these VAP programs who can afford not to work.

Wouldn't a far better plan be for these attorneys to publish now while practicing. If they want to get teaching experience, they could Adjunct.

Mitchell H. Rubinstein   

June 26, 2008 in Appointment Information, Full Time | Permalink | Comments (0) | TrackBack (0)

Fear of Unions

Fears Of A Union Renaissance is an interesting Forbes.com article dated June 5, 2008. Though this article is not particularly well written, it demonstrates that many employers are fearful of the prospects of a Obama winning the White House. With a majority in both Houses as well as the Office of President, there are likely to be a number of changes. The article points to the Employee Free Choice Act which will authorize card check elections in NLRB proceedings.

However, I expect there will be more, much more. First, many of the Bush Board's restrictive NLRB decisions will be overruled. New classes of workers such as graduate students will be able to organize. Look for the ADA to be amended to liberalize the definition of "disability" and there are a whole host of changes on the horizon with the recognition of gay marriages. These will be interesting times for labor lawyers.

Mitchell H. Rubinstein

June 26, 2008 in Unions | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 25, 2008

Mutual Demand For Attorneys Fees Vests Arbitrator With Authority To Award Attorneys Fees

Goldberg v. Thelen Reid, ___A.D.3d___, 2008 WL 2492255 (1st Dep't. June 24, 2008), is a short, but important arbitration decision under New York law. The court confirmed an award of attorneys fees because both sides requested them. Interestly, the respondent requested them by way of a counter claim. As the court reasoned:   

The arbitration award was properly confirmed as it did not violate a strong public policy, was not irrational, and did not exceed the arbitrator's authority (see Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, 37 [1991]; CPLR 7511[b]). Indeed, the arbitrator offered a well-reasoned justification for his interpretation of the parties' agreement, and there exists no basis for vacatur thereof (see Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999]). As for the award of counsel fees to petitioner, it was respondents that first sought such fees in their counterclaim, and mutual demands for counsel fees in an arbitration proceeding constitute, in effect, an agreement to submit the issue to arbitration, with the resultant award being valid and enforceable (see Matter of Warner Bros. Records (PPX Enters.), 7 AD3d 330 [2004]; compare Matter of Matza v Oshman, Helfenstein & Matza, 33 AD3d 493, 494-495 [2006]). While respondents may have attempted to withdraw the request for attorneys' fees in [*2]connection with their counterclaim, there was no such attempt in connection with their defense of the arbitration proceeding.

What is most interesting about this case is that had the Respondent not asserted a counter claim seeking attorneys fees, it is likely that the court would have determined that the arbitrator was without authority to award such fees. That seems a bit odd. Query whether the same result would apply under Section 301 in a labor dispute. This issue seems ripe for law review commentary.

Mitchell H. Rubinstein

June 25, 2008 in Arbitration Law | Permalink | Comments (0) | TrackBack (0)

Who is Michelle Obama??

The 'Other Obama' Honed Her Skills at Sidley Austin is an interesing June 25, 2008 National Law Journal article about Michelle Obama. Like her husband, she is a graduate of Harvard Law School. She was an associate for three years at a large law firm, Sidley Austin in Chicago where she met her husband. She was assigned to mentor Barack who was a summer associate at that firm. She shortly thereafter left to joinChicago Mayor Richard Daley's office.

Meanwhile Barack did get an offer from Sidley, which he turned down and the two eventually married. Michell worked as an assistant to the mayor and an assistant commissioner for planning and development before leaving government in 1993 for a job as the executive director of a new Chicago youth leadership organization led by Public Allies Inc. Barack sat on the group's board and recommended her for the post. The article does not state if they were married at the time.

I guess large law firm life is not all work!!

Mitchell H. Rubinstein   

June 25, 2008 in Politics | Permalink | Comments (0) | TrackBack (0)

Independent Contractor vs. Employee

Attorney Robert Wood wrote an interesting article for the June 2008 New York State Bar Journal entitled "Independent Contractor or Employee?" which many readers may find of interest. Though the article mainly focuses on the tax consequences of misclassifying an employee as an independent contractor, the article also discusses employment law issues as well. The article outlines that problems generally arise through audits, third-party lawsuits, actions by unions and audits from pension authorities. It also notes that a number of state are ratcheting up enforcement and points to former Gov. Spitzer's Executive Order No. 17 which creates a task force on Employee Misclassification. The article also discusses important cases involving this area of law.

Mitchell H. Rubinstein    

June 25, 2008 in Articles | Permalink | Comments (1) | TrackBack (0)