Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, May 25, 2009

Copy of Justice Souter's Resignation Letter

USSupremes Ever wonder what a retirement letter from the Supreme Court looks like. Well, SCOTUS Blog has Souter's letter to the President and additional information which is reproduced as follows:

Justice David H. Souter notified President Obama Friday that he will retire ”when the Supreme Court rises for the summer recess this year.”  The President promptly thanked and praised him for his 19 years of service. The transcript of the President’s remarks can be found here. Souter’s letter can be downloaded here. The Court’s press release can be downloaded here. Statements from the eight other Justices can be downloaded here or read in this post.

Mitchell H. Rubinstein

May 25, 2009 in Supreme Court | Permalink | Comments (0) | TrackBack (0)

Proposed Restatement of Employment Law

Professor Richard Bales over at Workplace Prof Blog posted a very interesting April 29, 2009 article about the proposed Restatement of Employment Law which scholars cannot seem to agree on. He summarizes the debate and enclosed links to several important scholarly papers which each address an important aspect of the Restatement.
The ALI Restatement of Law serves an important function. A Restatement of Employment Law is badly needed and long overdue.

Mitchell H. Rubinstein

May 25, 2009 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Ledbetter Act saves professor’s Title VII claim for denial of tenure

Gentry v Jackson State Univ, ___F.Supp.2d___ (S.D. Miss. April 17, 2009), is an interesting case. The court held that the plaintiff, a university professor could proceed with her claim that she was denied tenure and a corresponding salary increase because of her gender, even though the tenure decision was made in 2004 and the professor did not file charges with the EEOC until 2006. The court rejected the university’s assertion that it was entitled to summary judgment because the charge was filed well past the 180-day charge-filing period provided by Title VII. The professor had alleged the tenure denial decision negatively affected her pay and thus it qualifies as a “`compensation decision’ or `other practice’ affecting compensation” under the Lilly Ledbetter Fair Pay Act.

Mitchell H. Rubinstein

May 25, 2009 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Is Discharge For Wearing Religious Nose Ring Discriminatory??

EEOC v Papin Enters Inc, ___F.Supp.2d____(M.D. Fla. April 7, 2009), is an interesting case.  The court held that EEOC could proceed to trial with its lawsuit alleging that a Florida corporation which franchised the Subway sandwich shop brand and one of its franchisees violated Title VII by failing to accommodate an employee who wore a nose ring pursuant to her religious beliefs. The franchisor denied the franchise owner‘s request on behalf of the employee for an exemption to the franchisor’s no-facial-jewelry policy because it was not satisfied with the documentation the employee submitted regarding her religious beliefs. After the employee refused to provide additional documentation and refused to remove the nose ring while working, she was terminated. In denying the defendants’ motions for summary judgment, the court rejected their contention that the employee refused an accommodation, finding that neither of the franchisor owner’s proposed accommodations—that she cover her nose with a Band-Aid while working or that she leave the store when inspectors arrived—would resolve the conflict between her religious observance and the no-facial-jewelry policy. The court also determined that factual issues existed as to whether accommodating the employee’s beliefs would be an undue hardship.

Mitchell H. Rubinstein

May 25, 2009 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Sunday, May 24, 2009

Justice O'Connor on Judicial Elections, Civic Education and the High Court Vacancy

Justice O'Connor gave a rare interview to the National Law Journal, here. As she has done before, she discussed the importance of civc's and education, but this time she also talked a bit about Justice Souter and that she would like to see another woman on the Court.  As the article, which is mostly in question and answer format states:

I know that one of the topics is diversity in the judiciary. What do you want to tell the new administration about this? You can guess what I'm hinting at with this question.

Well, we have a current vacancy coming up on the U.S. Supreme Court, and I think much of the country appears to me to be expecting and indeed hoping that there will be a woman to fill that slot. That would add a little measure of more diversity, I would say. There was a little backsliding when I left.

You and Justice Ginsburg have always said a wise woman and a wise man --

A wise old woman and a wise old man, at the end of the day, can reach the same conclusion.

That said, you believe there is importance to diversity.

There is. I think we have to remember that slightly over 50 percent of the population has two X chromosomes, and it doesn't hurt to be able to look at the positions filled in our government and to see in fact that women are represented in more than token numbers.

Mitchell H. Rubinstein

May 24, 2009 in Supreme Court | Permalink | Comments (0) | TrackBack (0)

Prof. Harris Confirmed As Deputy Secy of Labor

On May 21, 2009, the U.S. Senate confirmed New York Law School Professor Seth Harris to be Deputy Secretary of Labor which is the number 2 position in the department. Seth is a old college buddy of mine as well as a colleague at New York Law School. Congratulations Mr. Secretary. I could not think of a better choice. A summary of Seth's bio is available here

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

May 24, 2009 in Politics | Permalink | Comments (0) | TrackBack (0)

Friday, May 22, 2009

Bitter Lawyer Entertaining Web Site

Ok, its Memorial Day weekend, so its time for something light. How about this wonderful new web site I just discovered It is run by former big firm lawyers with one goal in mind-to entertain. Some of the material they have up is as follows:

 What do Ted Bundy and Teddy Roosevelt have in common?  They both dropped out of law school and went on to make something of themselves.  Er?  While each the stories behind their notoriety is quite different, there's an undeniable bond that exists within this brotherhood of 11 law school dropouts.

Check out "11 Famous Law School Dropouts" here:

Also posted this week, an interview with Brian Koppelman -- Fordham Law graduate and co-writer of "Rounders," "Ocean's 13," and his new movie, which opens in theaters today, "The Girlfriend Experience," directed by an up-and-coming director named Steven Soderbergh.  Ever heard of him?

Read Koppleman's interview here:

Check this web site out.

Mitchell H. Rubinstein

May 22, 2009 in Legal Humor, Oddly Enough, Legal | Permalink | Comments (0) | TrackBack (0)

Slow Computer Boot-Time Suit

Laptop Mag  at page 112 (April 2009), reported in a brief blurb (no link to the story online) that employees at AT&T, Cigna an United Health Group are suing their employers for the time they have to spend waiting for Windows to boot up. They claim that this amounts to 15-30 minutes per day.
The mag does not go into any detail about the plaintiffs legal theory. My guess is that this is a wage and hour claim for either OT or the min. wage under the FLSA. My guess is that these employers do not count the employees as working until they actually log in to their network.
If I am right, is this a good FLSA case. Is this any different than employees having to wear a uniform or have a long commute to work. Something to think about-maybe even an interesting article may come out of this story. Are my students getting the hint that this might be a good paper topic??

Mitchell H. Rubinstein  

May 22, 2009 in Employment Law, Interesting Cases, Oddly Enough, Legal, Technology | Permalink | Comments (1) | TrackBack (0)

Thursday, May 21, 2009

List of Law Profs In Obama Administration

Here, complied by Hunter of Justice.

Hat Tip. Brian Leiter Law School Reports

Mitchell H. Rubinstein

May 21, 2009 in Law Professors | Permalink | Comments (0) | TrackBack (0)

Court Holds That To Be Eligible For Unemployment, You Must Be Totally Unemployed

Matter of Bunting v. Commissioner of Labor, ___A.D.3d___(3d Dept. April 23, 2009), is an interesting case. The plaintiff was denied unemployment because he was not totally unemployed. As the court explained:

By decision filed May 28, 2008, the Unemployment Insurance Appeal Board denied claimant's application to reopen and reconsider its November 3, 2006 decision ruling that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed. Because claimant's application to reopen was made within the 30-day period during which the Board's November 2006 decision could have been appealed, the instant appeal brings up for review the merits of the Board's original decision (see Matter of Yastrzemski [Commissioner of Labor], 32 AD3d 1123, 1124 [2006], lv dismissed 8 NY3d 896 [2007]). In this regard, substantial evidence supports the Board's finding that claimant, a 31% shareholder and president of a metal tubing corporation, was not totally unemployed. "It is well settled that a corporate officer who performs activities in connection with the winding up of a corporation will not be considered totally unemployed, even if his or her activities in this regard are minimal" (Matter of DeAngelo [Commissioner of Labor], 54 AD3d 468, 468 [2008] [internal quotation marks and citations omitted]). Here, the record reflects that during the relevant time period, claimant wrote business-related checks, participated in the sale of certain assets and equipment, routinely checked the mail and assisted in cleaning out the building where the corporation was housed (compare Matter of Salomone [Commissioner of Labor], 34 AD3d 1037, 1038 [2006]). The record further reveals that claimant did not report any of these activities when certifying for unemployment insurance benefits. Under such circumstances, the findings that claimant was not [*2]totally unemployed and that he made a willful misrepresentation regarding his employment status and, thus, should be charged with a recoverable overpayment and an effective loss of days were supported by substantial evidence (see Labor Law §§ 594, 597 [4]; Matter of Blankenship [Commissioner of Labor], 286 AD2d 818, 819 [2001]). Therefore, we decline to disturb the Board's decision.

Mitchell H. Rubinstein

May 21, 2009 in Employment Law | Permalink | Comments (0) | TrackBack (0)

New York Law Journal Special Report On Law Schools

The April 27, 2009 New York Law Journal ran a Special Report on Law Schools. (registration required). The Journal is running stories on survival tips for law students, law school rankings, what law firms want, and career management. I found the article on rankings, written by the associate dean at Cornell Law School, particularly interesting.
In this article, the rankings are accepted as a fact of life. Additionally, many people favor rankings because it forces law schools to compete with each other. I have not seen the rankings viewed in that manner before. The article also discusses some of the criteria that U.S. News uses in its all important (and highly inaccurate in my view) ranking system.

Mitchell H. Rubinstein

May 21, 2009 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Conflict of Interest for Adjunct at Rutgers-Newark Law

Dan Filler at The Faculty Lounge picked up this story by Henry Gottlieb, New Jersey Law Journal, about Rutgers-Newark Law forcing adjunct professor Sheryl Mintz Goski to choose between working as an adjunct at the school or representing a client in a dispute with Rutgers Business School.  Ms. Goski chose the client and will give up here teaching gig at the law school.

From the story:

A couple of other adjuncts at state law schools say the rule is clear, though Goski may have a point about the distance between adjunct professors and schools.

I hesitate to use the word 'attenuated,' which is maybe what she says it is, but it almost seems to fit," Andrew Kushner of Asbell, Kushner & Eutsler in Cherry Hill, N.J.

Kushner, an adjunct professor of professional responsibility at Rutgers Law School-Camden, adds, however: "Practically speaking, the university has an interest in preserving the perception that there is no funny business going on between one of their staff -- albeit a part-time staff member who teaches in another school in the university -- and a case involving a private client."

"One can understand the reason for the rule, one can understand the purpose of it and from that perspective I don't have a problem with it," he adds. He says Goski made the right choice: the client.

"Sometimes you have to shrug your shoulders and move on," he says.

Jeffrey Mandel of PinilisHalpern in Morristown, N.J.,an adjunct professor of appellate practice at Rutgers-Newark, jokes that if he were told about the one-rule-fits-all-faculty policy, he would respond, "Are you going to pay me the same?

I wonder if Professor Mandel is really joking.

Craig Estlinbaum

May 21, 2009 in Adjuncts in the News | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 20, 2009

Union Busting Increasing!

Study Says Antiunion Tactics Are Becoming More Common is an important May 19, 2009 article by NY Times Reporter Steven Greenhouse. Greenhouse previews a upcoming scholarly article by Cornell ILR Professor Kate Bronfenbrenner which documents some stunning statistics including:
-57% of employers have threatened to close plants in union organizing campaigns
-47 % of employers have threatened to reduce wages or benefits in union organizing campaigns
-34% of employers fired pro-union workers in campaigns

Do you think we need labor law reform?? This article should be example number one in favor of the Employee Free Choice Act.

UPDATE: A copy of Professor Bronfenbrenner's article is available here.

Mitchell H. Rubinstein 

May 20, 2009 in Articles, Law Review Articles, Unions | Permalink | Comments (1) | TrackBack (0)

FMLA Retaliation Found Where Employer Cancelled Health Insurance

Ryl-Kuchar v Care Centers, Inc, ___F.3d___(7th Cir. May 11, 2009), is an interesting FMLA case. The 7th held that a jury could reasonably have found an employer violated the FMLA when it retroactively canceled an employee’s health insurance benefits after she went on leave.
The plaintiff began working from home after she became pregnant. During that time, her work schedule dropped to below 35 hours per week, but she remained a salaried employee and her pay did not change. After giving birth to triplets, the employee returned to work, but she went on FMLA leave soon after and eventually resigned. A short time later, she learned the employer had canceled her health insurance retroactive to the date that her work schedule dipped to less than 35 hours, having rendered her a part-time employee and thus ineligible for health benefits.
Significantly, it was only after she took FMLA leave that the employer audited her payroll records and found this “mistake.” The appeals court found there was sufficient, if not overwhelming, evidence from which the jury could infer retaliation, including the timing of the decision and the employer’s express concerns over rising health care costs, as noted in an employee newsletter. A reasonable jury could find the plaintiff was in fact a full-time employee until she took FMLA leave, and that the employer’s rationale for waiting so long to determine the plaintiff’s status had changed to part-time was pretextual.

Mitchell H. Rubinstein

May 20, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

ADA Document Portal

8th Circuit Issues Decision Discussing Damages Under Title VII

8thCir Wallace v. DTG Operations, Inc., No. 08-1474 (8th Cir. Apr. 17, 2009), is an interesting decision. This is because it reviews the standards for awarding damages under Title VII. The 8th affirms a jury veridict ($10K wages; $20K comps; $220K atty fees) for fired rental car company station manager on her state law claims; but reduces punitive damages award from $500K to $120K). The case illustrates how atty fees can be more than the damages.

Mitchell H. Rubinstein

May 20, 2009 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 19, 2009

Restatement of Employment Law About To Be Adopted

Workplace Prof Blog has reported that the Restatement of Employment Law has been tentatively adopted by ALI (the same folks who brought us the UCC). Foir a copy, click on the word  Restatement
The ALI has stated that the tentative draft was approved subject to further discussion and editorial revision.
As Professor Hirsch notes, this is a very controversial proposal. A whole host of issues involving the Restatement, whats wrong with it and what is right with it is ripe for law review commentary.

Mitchell H. Rubinstein 

May 19, 2009 in Employment Law, Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

Breaking News Copies of Torture Memo's Available; ASIL Paper of Torture Memos

The American Society of International Law recently published a paper, as part of their Insight Series entitled "The Torture Memos and Accountability". It is written by Allen Weiner-a Stanford Law School Prof. It includes links to the memos in question, available here

The American Society of International Law or ASIL frequently publishes scholarly papers on timely topics. Researchers will find this article and its links of great interest and assistance.The author concludes that holding the attorneys criminally responsible will be difficult, but that they may be also be subject to prosecution in other countries. As the article states:

Nevertheless, attempting to hold OLC lawyers criminally responsible for the advice they gave in the memos could prove difficult. To convict a lawyer for conspiracy or aiding and abetting torture, it is likely that the prosecution would have to prove that the purpose of the lawyer’s advice was to facilitate conduct that the lawyer knew to be criminal. Where a lawyer gives advice in good faith, or that he believes is well-founded, “he cannot be held liable for an error in judgment.”[25] Criminal prosecutions of lawyers who play a role in advising clients who pursue criminal activity are accordingly quite rare. The government would have to prove, in any case against lawyers involved in formulating the OLC guidance, that they gave advice that they knew to be erroneous. In the absence of evidence demonstrating that the OLC lawyers who advised the CIA that the interrogation techniques were legal did not in fact believe that there was a plausible basis for this argument, it would be difficult to establish their criminal liability. Evidence of such belief – emails, meeting minutes, other officials’ testimony – may be quite difficult to adduce.

The difficulty in criminally prosecuting those connected to the CIA interrogations does not, of course, preclude other forms of accountability. . . .
 Finally, apart from the question of state responsibility on the part of the United States, it is possible that individual interrogators or lawyers may be subject to criminal prosecution outside the United States. Torture is an offense subject to universal jurisdiction, and under the Torture Convention, any state party may potentially prosecute acts of torture no matter where they have occurred. A decision not to prosecute in the United States – whether based on the availability of strong defenses under domestic law or on or policy considerations – does not preclude other states from exercising criminal jurisdiction. We have already seen the initiation of a criminal investigation in Spain of six U.S. Government officials – including two OLC lawyers – for torture that allegedly took place at the U.S. military facility at Guantanamo Bay, Cuba.[36] Individuals involved in either the design or execution of the enhanced interrogation program are accordingly vulnerable to arrest and prosecution if they travel outside the United States.

Mitchell H. Rubinstein

May 19, 2009 in Politics | Permalink | Comments (0) | TrackBack (0)

7th Holds Driving Is Not A Majority Activity Under ADA

7thCirseal Winsley v. Cook County, No. 08-2339 (7th Cir. Apr. 22, 2009) is an interesting decision. The court affirmed the dismissal of Black female nurse’s race and disability + retaliation claims, noting that driving is not an ADA major life activity. As the court explained:

The ADA defines a disability as “a physical or mental
impairment that substantially limits one or more major
life activities.” 42 U.S.C. § 12102(2). The only potential
impairment supported by the evidence is Ms. Winsley’s
claim that she had difficulty driving. Although this court
has reserved judgment on whether driving is a major
life activity, Sinkler v. Midwest Property Mgmt. Ltd. P’ship,
209 F.3d 678, 685 (7th Cir. 2000), three other circuits have
held that it is not. See Kellogg v. Energy Safety Servs. Inc., 544
F.3d 1121, 1126 (10th Cir. 2008); Chenoweth v. Hillsborough
County, 250 F.3d 1328, 1329-30 (11th Cir. 2001); Colwell v.
Suffolk County Police Dep’t., 158 F.3d 635, 643 (2d Cir. 1998).
Today we agree with our sister circuits and hold that
driving is not, in itself, a major life activity. The version of
the ADA applicable to Ms. Winsley’s action, see note 1,
supra, does not define the term “major life activity,” but an
EEOC regulation states that “Major Life Activities means
functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.” 29 C.F.R. § 1630.2(I).2 Although
this list does not purport to be exclusive, the items on
the list have several things in common with each other
that driving does not share with them. Most importantly,
the listed activities are so important to everyday life
that almost anyone would consider himself limited in a
material way if he could not perform them. This is not
the case with driving. In fact, many Americans choose
not to drive and do not consider the quality of their lives
to have been diminished by their choice.

The Supremes recently denied cert. in the Kellogg case cited above.

Mitchell H. Rubinstein



May 19, 2009 in ADA | Permalink | Comments (0) | TrackBack (0)

So You Want To Be A FT College Prof

So You Want To Be A Professor is an interesting April 23rd Wall Street Journal Op Ed which discusses just how difficult it is to land a tenure track gig at a University. The article does not discuss law profs and the point of the editorial is that universities are producing more P.h.d.'s then there are faculty positions and they know it. One of the reasons for this is the increased use of Adjuncts. As the article points out, many P.h.d's wind up adjuncting at several schools and need a FT non-teaching job to make a living because adjunct pay is so poor. 

At the end of the article, the author questions whether adjunct teaching is any better or worse than  FT teaching.

Mitchell H. Rubinstein


May 19, 2009 in Adjunct Information in General, College Professors, Colleges | Permalink | Comments (0) | TrackBack (0)