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Editor: Mitchell H. Rubinstein
New York Law School

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Friday, October 31, 2008

Book Review Highlight Law School Getting In Getting Good Getting Gold

                      

Gettinginthumb125w        Law School Getting In Getting Good Getting The Gold by Thane Messinger (Fine Press 2008)($16.95 list price)(order information available here), is not your ordinary law school guide book. Yeah, it has all the typical guide book information; tips about getting into law school, How to "Get Good" (doing well) and "Getting the Gold" (a good job).

Significantly, however this book is a bit different from other guide books and contains something more.  That something is practical real world advice. For example, Mr. Messinger starts off his book by explaining what it means to "think like a lawyer." That is a critically important concept that is often missing from these types of books.
He also appears to know what is going on in legal education in most American Law Schools. However, some of the information which he exposes may go over the head of many of the books intended readers (college seniors applying to law school and first year law students). For example, he states that most professors know that the job market is so tight for full time professors today that most would not be hired today by their schools.
Mr. Messinger closes his book with a chapter he calls "Obiter Dicta." That chapter is basically a criticism of legal education today. For example, he calls for the rejection of what he calls "legal apartheid" which places the teaching of the law distinct from and superior to the practice of law. He believes that new faculty should have at least 10 years of practice experience, that the curricula should be redesigned and their should more clinical and legal research and writing classes. These are all interesting to someone like me who is an adjunct in academicia, but I do not believe that it belongs in this type of book geared towards students.

With that said, overall, I highly recommend this book to anyone considering law school or in their first year of law school.

Mitchell H. Rubinstein   

October 31, 2008 in Book Reviews | Permalink | Comments (0) | TrackBack (0)

Halleland Lewis Nilan & Johnson Continues It Humorous Recruting Policy

As we noted last summer, the law firm of Halleland Lewis Nilan and Johns has taken a humorous approach to attorney recruitment. They have now updated their Video which is available here. Check it out.

Mitchell H. Rubinstein

October 31, 2008 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Spooky Law Review Articles

Spooky Law Review articles? There is actually such a thing. In the spirit of today's holiday, I thought I would link to Law Librarian Blog's coverage of this.

Mitchell H. Rubinstein 

October 31, 2008 in Legal Humor | Permalink | Comments (0) | TrackBack (0)

Thursday, October 30, 2008

Presidential Election May Transform Federal Courts

Election's Outcome Could Have Seismic Effect On Federal Courts is an important Oct. 24, 2008 National Law Journal article. Currently, Republicans have appointed more than half the federal judges, but that number (which is not specified) can jump to 74% with a McCain win and to a 56% Democratic majority if Obama wins. As the article states:

Republican Presidents have appointed more than half of the current 179 federal appellate judges, but that could rise dramatically to 74% if Senator John McCain wins the presidency, or give Democrats a 56% majority in appointments if Senator Barack Obama prevails, according to a Brookings Institution report issued on Wednesday.

In addition, the report by Russell Wheeler at Brookings, predicts that in four years of an Obama presidency, his appointments could shift Republican dominance on 10 of 11 circuits, to give Democrat appointees a majority in seven circuit courts. Currently, of the 11 circuit courts, only the 9th U.S. Circuit Court of Appeals has a slight majority of Democrat-appointed judges.

Mitchell H. Rubinstein

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

Everything You Wanted To Know About FLSA, But Were Afraid To Ask

Ke v. Saigon Grill, ___F.Supp. 2d ___(S.D.N.Y. Oct. 24, 2008) is  an important FLSA case. The court awards 42 million dollars to 36 bicycle delivery men for various wage and hour violations. Significantly, the case is not dismissed as time-barred because the employer failed to required post FLSA notices. The decision is very lengthly and spans 80 pages. The court extensively reviews the FLSA as well as New York labor law. Issues such as tip credit, required record keeping, waiting time, the definition of wages, tools of the trade rules, statute of limitations, and more are extensively discussed.

Students of FLSA law will want to read this case. A Oct. 31, 2008 New York Law Journal article about this case is available here.(registration required)

Mitchell H. Rubinstein 

October 30, 2008 in Employment Law | Permalink | Comments (0) | TrackBack (0)

7th Affirms Issuance of 10(j) Injunction

7thcirseal Lineback v. NLRB, ___F.3d___ (7th Cir. Oct. 8, 2008), is an interesting decision where the court affirms the issuance of a 10(j) injunction. 10(j) injunctions are issued against employers pending resolution of unfair labor practice charges. The allegations in this case were that the employer discriminated against union supporters, unilaterally changed preexisting policies granting work assignments based on seniority, and implemented an evaluation procedure for assigning certain work without bargaining with the union.

The 7th held that the district court  did not clearly err in finding an award of damages years down the line would be an inadequate remedy.  The court also rejected the argument that the injunction was overbroad. It prohibited only those actions that are similar to the violations already allegedly committed by the employer.

Mitchell H. Rubinstein

October 30, 2008 in NLRB | Permalink | Comments (0) | TrackBack (0)

Internet Archive Research

Ever wonder if you could retrieve old postings of web pages on the internet? Well you can and its free! Its called the Wayback Machine. The web site's list of FAQ describes their wonderful service as follows:

What is the Internet Archive Wayback Machine?                              

The Internet Archive Wayback Machine is a service that allows people to visit archived versions of Web sites. Visitors to the Wayback Machine can type in a URL, select a date range, and then begin surfing on an archived version of the Web. Imagine surfing circa 1999 and looking at all the Y2K hype, or revisiting an older version of your favorite Web site. The Internet Archive Wayback Machine can make all of this possible.

Mitchell H. Rubinstein

October 30, 2008 in Information | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 29, 2008

OBAMA vs. McCain Appointments

Abamccainobama The November 2008 ABA Journal has a timely and interesting article entitled "The Lawyers Who May Run America." The article predicts which lawyers both Obama and McCain may pick for key positions such as the Supreme Court, Attorney General and Secretary of State. The journal also includes a great marked up cover on one side showing Obama taking the oath of office and on the other McCain. This article is worth a read.

Mitchell H. Rubinstein

reprinted from ABA

October 29, 2008 in Politics | Permalink | Comments (1) | TrackBack (0)

The Need For More Regulation In The Securities Industry

Lessons Learned From Enron: Zip, Zero, Nada, Wall Street Journal Says is an interesting Oct. 29, 2008 ABA Blog article which discusses the current financial crisis and the need for regulation. The point of the article is that executives cannot be given carte blanche. As the article states:

"Today's financial crisis has shown what a real debacle looks like. And it has made clear that executives' duties to public companies have, if anything, been loosened, not reinforced," the newspaper writes. "What is worse, the post-Enron crackdown appears not only to have failed to stop flagrant corporate risk-taking, but to have lulled Washington to sleep." 

Mitchell H. Rubinstein

October 29, 2008 in Current Events | Permalink | Comments (0) | TrackBack (0)

Law Students By The Numbers

Bill Henderson over at Empirical Legal Studies wrote an interesting Oct. 10, 2008 posting entitled The Drift Toward Pure Numbers Admissions. Professor Henderson's point is that the U.S. News and World Reports ranking system has resulted in schools placing more and more emphasis on the numbers. This is because the U.S. News and World reports uses those same numbers in it ranking methodology.

I find this to be a shame. I remember that when I applied to law schools, and to college for that matter, unusual experiences mattered. I remember going to school with several students who did not have stellar LSAT scores, but had important work experience.

Law schools always talk about the importance of diversity. Diversity does not just refer to racial diversity. Law school strictly by the numbers threatens to change law school as we know know it.

Mitchell H. Rubinstein

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

Does An Employer Asking Why An Employee Is Out Sick Violate The ADA?

The answer the above question is a big maybe as indicated in Asking for Details of Workers' Illness Causes a Legal Migraine for Employers , an important Oct. 13, 2008 National Law Journal article.

The article reports on two lawsuits filed by the EEOC where employers required employees to reveal the nature of their illnesses. The EEOC views this as a violation of the ADA. The article does not do a good job in explaining specifically how such a policy violates the ADA. Presumably, the claim is that it is discrimination on the basis of a perceived disability.  As the article states:

A recent lawsuit against retail chain Dillard's Inc. is highlighting what some claim is a growing problem in the workplace: employers asking too much information about workers' illnesses when asked for sick leave.

  In the Dillard's case, the Equal Employment Opportunity Commission claims that one California store required employees to reveal the specific nature of their illness in order to deem sick leave as an excused absence. The EEOC argues that this policy violates the Americans With Disability Act (ADA). EEOC v. Dillard's, No. 08-CV-1780 (S.D. Calif.).

In New York, a similar lawsuit is pending against Delphi Corp., an automotive parts supplier accused of requiring workers returning from sick leave to sign releases permitting the company to access their medical information. The EEOC alleges that Delphi has retaliated against employees who object to the medical inquiries, in one case firing a worker on the spot. EEOC v. Delphi Corp., No. 07 CV 6430T (W.D.N.Y.).

Also in New York, a federal judge last year struck down a policy by a transit authority that required employees returning from sick leave to disclose a variety of information, including diagnosis, prognosis, symptoms and treatment. The case settled in June. Transport Workers Union of America v. New York City Transit Authority, No. 02-cv-7659 SAS (S.D.N.Y.).

This is an important issue. Law review commentary would be most welcome.

Mitchell H. Rubinstein

October 29, 2008 in Employment Discrimination, Law Review Articles | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 28, 2008

Employees Walkout Over Forced Campaigning For McCain

TPM Election Central reported on Oct. 27, 2008, available here, that dozens of call center workers walked out rather than read a McCain script attacking Obama. Query whether these workers can be fired?

Absent some state law or contractual protections they probably can. Section 7 of the NLRA protects concerted activity for mutual aide and protection. There actions are concerted, but probably not for mutual aide and protection as  their cause is political. There dispute has nothing to do with the terms and conditions of their employment.

Mitchell H. Rubinstein

Hat Tip: Professor Lance Compa

October 28, 2008 in Labor Law, Politics | Permalink | Comments (0) | TrackBack (0)

School District May Present Draft of IEP At IEP Meeting

M.M. v. NYC Department of Education, ___F.Supp.2d___(S.D.N.Y. Oct. 20, 2008)(registration required), is an important IDEA decision. The parents claimed that their child did not receive a FAPE and that they did not have any meaningful involvement in the IEP because it was "predetermined." The court rejected this claim reasoning:

So long as they do not deprive parents of the opportunity to meaningfully participate in the IEP development process, see Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 858 (6th Cir. 2004) ("Participation must be more than a mere form; it must be meaningful.") (internal quotation marks and citation omitted, emphasis in original), draft IEPs are not impermissible under the IDEA. See, e.g., Nack ex rel. Nack v. Orange City Sch. Dist., 454 F.3d 604, 611 (6th Cir. 2006) ("'[S]chool evaluators may prepare reports and come with pre-formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions.'") (quoting N.L. v. Knox Cty. Schs., 315 F.3d 688, 694 (6th Cir. 2003)); W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 147-48 (S.D.N.Y. 2006) (stating that equating draft IEPs containing proposed placements with predetermination "will inevitably lead to gamesmanship in the preparation of IEPs by CSEs, with the district withholding points of view that ought to be out on the table and subject to discussion and parental challenge . . . prior to the document's finalization."); cf. Brennan v. Reg'l Sch. Dist. No. 1 Bd. of Educ., 531 F. Supp. 2d 245, 274 (D. Conn. 2007) (finding that a draft IEP did not violate the IDEA, although it was not altered following the CSE's receipt of additional evaluation reports, where "the district came to the [planning] meeting with a draft IEP, it looked at the new evaluation data, and it concluded that its draft IEP was appropriate."). But see T.P. v. Mamaroneck Union Free Sch. Dist., No. 06 Civ. 0509 (CLB), 2007 U.S. Dist. LEXIS 35288, at *18-19 (S.D.N.Y. May 11, 2007) (finding that school district had not come to CSE with an "open mind" and had impermissibly predetermined student's IEP where, inter alia, recommendations prepared before IEP meeting were the same as those ultimately provided, despite the Parents' disapproval).

Here, the Student's IEP and placement were not finalized until after both of the Student's IEP meetings, the Student's mother participated at the IEP meetings, she visited the Defendant's proposed placements, and she contributed to the Student's final IEP. Tr. at 85, 106-107; SRO Dec. at 16. After the initial IEP meeting on July 12, 2005, the DOE responded to the Student's mother's request by amending the Student's IEP to include a one to one paraprofessional for the Student. Tr. at 106; Pls.' Ex. E at 1; SRO Dec. at 16. Additionally, as the SRO described in detail, the IEP incorporated evaluations of the Student conducted by professionals of the Plaintiffs' choosing and the goals those professionals recommended. SRO Dec. at 13-14; IHO Dec. at 9.

Mitchell H. Rubinstein

October 28, 2008 in Special Education Law | Permalink | Comments (0) | TrackBack (0)

Stay of Labor Arbitation Denied

I bring Matter of City of Utica v. Teamsters, ___Misc. 3d___(Oneida Co. Oct. 6, 2008), to your attention because it reviews basic arbitration law. Specifically, the court, applying New York law, denies the application for a stay and rejected the claim that there was no valid agreement to arbitrate. The court described the applicable standard of review as follows:

In 1977 the Court of Appeals decided Matter of Acting Superintendent of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Association) (42 NY2d 509 [1977]) which established a methodology for determining whether a public sector grievance is subject to arbitration. This analysis requires the Court to engage in a two step inquiry. First, the Court must determine whether the arbitration claims concerning this particular subject matter are authorized by the Taylor Law, New York Civil Service Law Article 14. The next step concerns "whether such authority was in fact exercised and whether the parties did agree by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration." See Matter of Board of Educ. (Watertown Educ. Assn.) and Matter of Indian Riv. Cent. School Dist. (Passino), 93 NY2d 132, 137-138 [1999].

The parties to this grievance do not argue that public policy restricts the arbitration of this matter; therefore, the Court considers the first prong of the "Liverpool Two-Step Format" to be resolved. Next, the Court must determine whether the present complaint falls within the contract definition of grievance and whether the parties agreed to arbitrate this particular grievance. Article XVI of the CBA addresses the grievance procedure. Section 1 defines grievance as "a claimed violation of a specific term of this Collective Bargaining Agreement in its application or interpretation by the employer." The remainder of the article goes on to set forth the procedures to be utilized to bring a matter to arbitration. Using the "Liverpool" analysis, the Court must determine whether the agreement to arbitrate contained within the CBA is broad or narrow. The parties to this agreement have executed an unambiguous agreement to arbitrate. It is broad in its scope by its very terms in that it applies to the employer's application or interpretation of the agreement. See generally Matter of Board of Educ. (Watertown Educ. Assn.), 93 NY2d 132 [1999]; Board of Educ. v Barni, 49 NY2d 311 [1980]. The employee's claim in this matter falls squarely within the class of claims to be arbitrated because it implies a violation of the agreement. Further, if the matter in dispute bears a "reasonable relationship" to some general subject matter of the CBA, it is for the arbitrator not the courts to decide whether the specific disputed matter falls within the CBA. See Matter of Uniform Firefighters v City of Cohoes, 94 NY2d 686, 694 [2000].

Mitchell H. Rubinstein

October 28, 2008 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0) | TrackBack (0)

Attorney Sanctioned In Employment Discrimination Case For Failing To Conduct Reasonable Investigation

5thcir Worrell v.Houston Can! Academy, ____F.3d____(5th Cir. 2008), serves to remind us that attorneys cannot file pleadings in federal court without first conducting a reasonable investigation. Here, the plaintiff's attorney was sanction $6,000 for failing to conduct an investigation with respect to who plaintiffs correct employer was. The plaintiff's lawyer, an associate in a lawfirm, named the company's parent as the employer even though the web site, which the attorney checked, specifically stated that it did not manage or operate plaintiffs true employer.

Mitchell H. Rubinstein

October 28, 2008 in Civil Procedure | Permalink | Comments (0) | TrackBack (0)

Monday, October 27, 2008

Teacher Has No First Amendment Right To A MySpace Account

Spanierman v. Hughes, ___F. Supp. 2d___ (D. Conn. Sept. 16, 2008), is an important Education Law as well as First Amendment case.  A federal lower court held that a probationary teacher failed to show his constitutional rights were violated when his school did not renew his teaching contract after it received complaints of inappropriate contact with students via his MySpace page.

Interestingly the court found that the teacher was acting as a private citizen, but the adverse action being 5.5 months after the posting in question was too remote in time to establish a casual connection. Additionally,  as the court stated the school was able to demonstrate that it would have taken the action in question anyway:

Moreover, even if the Plaintiff had established this causal
connection, the Defendants could still prevail by demonstrating
by a preponderance of the evidence that they would have taken
the same adverse action in the absence of the protected speech,
or that the Plaintiff’s speech was likely to disrupt school
activities, and the likely disruption was sufficient to outweigh
the First Amendment value of plaintiff’s speech. See Mandell,
316 F.3d at 382-83. In the court’s view, the Defendants would
have taken the same adverse action absent the existence of the
poem on the Plaintiff’s MySpace page. All the evidence
indicates that the action taken against the Plaintiff resulted
from his interactions with Emmett O’Brien students. There is no
indication that the poem in any way played a part in the
decision to not renew the Plaintiff’s employment contract.
In addition, the Defendants have submitted evidence
supporting the argument that the Plaintiff’s conduct on MySpace,
as a whole, was disruptive to school activities.

This decision is very lengthly (41 pages) and full of cites. A variety of other constitutional claims such as Equal Protection and Due Process were considered and rejected by the court. Researchers and lawyers may want to take a look at this case.

Mitchell H. Rubinstein

October 27, 2008 in Education Law | Permalink | Comments (1) | TrackBack (0)

Senator Stevens Convicted!

The Oct. 28, 2008 Legal Times in a story entitled Sen Stevens Found Guilty In Corruption Trial reported that A jury found Alaska Sen. Ted Stevens guilty on all counts in his corruption trial. Stevens was convicted of failing to report more than $250,000 in gifts and home renovations. Each count carries a maximum of five years in prison, but many predict Stevens will get no more than six months.

Mitchell H. Rubinstein

October 27, 2008 in Current Events | Permalink | Comments (0) | TrackBack (0)

7th Rejects AIDS Discrimination Claim

7thcireagle EEOC v. Lee's Log Cabin, ___F.3d___(7th Cir. Oct. 6, 2008), is an interesting as well as an important decision. The EEOC had filed suit under the ADA claiming that the employer refused to hire a plaintiff for a waitstaff position because she was HIV positive. However, after the employer moved for summary judgement, the EEOC switched its position and claimed that the refusal to hire was because plaintiff had AIDS.

The lower court dismissed of the case because the switch in position came to late. A disability associated with AIDS is not synonymous with being HIV positive. On appeal, the 7th affirmed, but on a different basis.
The 7th simply held that the EEOC attempted change was too late and did not find a need to make a determination whether AIDS and being HIV positive were synonymous. As the court stated:

Whether HIV and AIDS are synonymous
for all purposes under the ADA need not be
decided in this case. We note only that they are not synonymous
for the limited purpose relevant to the determination
at issue here—whether to entertain the EEOC’s
belated alteration of the factual basis of its claim—and
the district court’s judgment in this regard was manifestly
reasonable. The very first mention of AIDS came in the
EEOC’s response to Log Cabin’s motion for summary
judgment, and the court was entitled to regard this as
“too late” to change so basic a factual premise in the case

This decision is lengthly and well written. It also generated a well written dissent.

Mitchell H. Rubinstein

October 27, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Distinguishing Between Employees Is Not A Breach of The Duty Of Fair Representation

Collective bargaining often involves line drawings. Unions cannot always get the same amount of benefits for all classes of employees. Calkins v. PBA, ___A.D.3d___(4th Dep't. Oct. 3, 2008), is an important decision because it recognizes that such choices do not breach the duty of fair representation. As the court stated:

  To establish that a bargaining agent breached its duty of fair representation, a plaintiff must show that the bargaining agent's conduct was arbitrary, discriminatory, or in bad faith (see Matter of Civil Serv. Bar Assn., Local 237, Intl. Bhd. of Teamsters v City of New York, 64 NY2d 188, 196). " [T]here must be substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate . . . objectives [of the bargaining agent]' " (Mellon v Benker, 186 AD2d 1020, 1021). [*2]

Here, the fact that defendant treated the Special Troopers differently from other State Troopers represented by defendant in its negotiations for a new CBA does not amount to a violation of the duty of fair representation. Defendant met its initial burden on the motion by establishing that it undertook "a good-faith balancing of the divergent interests of its membership and [chose] to forgo benefits which may be gained for one class of employees in exchange for benefits to other employees" (Civil Serv. Bar Assn., Local 237, Intl. Bhd. of Teamsters, 64 NY2d at 197), and plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Contrary to plaintiffs' contention, the record establishes that defendant did not misrepresent its negotiating position in a "Contract Update" memorandum sent to its members. That memorandum expressly provides that the Special Troopers were excluded from "all new monetary aspects of the contract." In any event, even assuming, arguendo, that defendant did misrepresent the negotiating positions of the parties in that memorandum, we cannot conclude on the record before us that such conduct was arbitrary, discriminatory or in bad faith (see Matter of Buffalo Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 286 AD2d 993).

Though this case arose in the public sector, it should be applicable in the private sector as well.

Mitchell H. Rubinstein

Hat Tip: New York Public Personnel Law

October 27, 2008 in Duty of Fair Representation, Public Sector Labor Law | Permalink | Comments (0) | TrackBack (0)

Sunday, October 26, 2008

Slavery Conviction in 2008!

A case that has gone virtually unnoticed is U.S. v. Sabhnani, ___F.Supp.2d ___ (E.D.N.Y. Oct. 20, 2008)(registration required). A copy of the Indictment is available here. However, the case did get a significant amount of press when it was orginally brought. The defendants were reportedly very weathly and they were convicted of slavery. At issue in the above case was whether the defendants were entitled to bail. The court held that they were not.

In describing the defendants conviction, the court noted some of the conduct that was involved. As the court stated:

Mrs. Bonetti also physically abused the victim on a regular basis. Though Mr. Bonetti never physically abused the victim, he failed to stop his wife from doing so and neglected to provide the victim with medical attention for a serious infection and a uterine fibroid. On appeal, Mr. Bonetti claimed, among other things, that the jury erred in finding that he caused serious bodily injury to the victim. The Court found that, under the "extraordinary facts" of the case, Mr. Bonetti had a "legal duty to help [the victim] get prompt medical care." Id. at 447.

As the Court explained, the victim "lived under the same roof as [Mr Bonetti] for almost fifteen years, and her illegal status, illiteracy, ignorance of English, and lack of money rendered her completely dependent upon [Mr. Bonetti] for her well-being and survival." Id. The Court also emphasized that Mr. Bonetti "created a circumstance of forced dependency by the victim through his own conduct of retaining [the victim's] passport in his possession, refusing to renew her visa after it expired, and refusing to pay her for her work." Id. at 448. Accordingly, the Bonetti Court upheld the jury's finding of serious bodily injury in connection with the defendant's harboring convictions.

It is unbelievable that this can happen in America today.

Mitchell H. Rubinstein

October 26, 2008 in Interesting Cases | Permalink | Comments (0) | TrackBack (0)