Wednesday, December 30, 2009
On Dec. 14, 2009, the National Law Journal published an article on the 25 most important legal decisions of the decade. That article is available here. So what are some of them? The National Law Journal lists the top 3 as follows:
1. War on terror tests the limits of law
From telecommunications to transportation, from immigration to interrogation, from detention to rendition, the war on terrorism strained the conventional framework of American law. It triggered new statutes, the expansion of old ones and, in critics' views, transgressed others.
3. Accounting scandals flood the courts
2. For associates, a time of thrills and chills
Between 2000 and 2009, law firms doled out jaw-dropping bonuses, lavished benefits like never before and hiked first-year salaries to a point that drew the envy of federal judges. The decade also featured mass job cuts, pay reductions and a decided shift in power for recent law graduates, many of whom, at the decade's conclusion, were clamoring for even part-time work at living-wage levels.
Lax corporate oversight combined with an intense desire to keep company stock prices high created a climate that allowed executive after executive to cross the line. Faced with a barrage of high-profile scandals, prosecutors responded by making corporate fraud a priority. But in their eagerness to get tough.
Mitchell H. Rubinstein
We'd previously told you about an NYU visiting law prof who distributed as his final exam one he'd used a year earlier as a practice exam at Northwestern. Now comes this story, also courtesy of Above the Law, about a U. of Minnesota evidence professor who mistakenly included in his final some multiple choice questions previously made available to students. Here's the prof's mea culpa to his students:
Evidence Students -
It seems that thirty of the seventy short answer questions on the Evidence exam are, through no student's fault, compromised. After consultation with Dean Wippman and Associate Dean McDonnell, we agree that those questions should and will be eliminated. The 70 points originally assigned to seventy questions will now be assigned to forty questions. I realized only after a student alerted me that some of the questions on the exam had been previously released to past students. I very much regret this and will make certain to avoid such problems in the future.
Based on some comments to the original Above the Law story from students who've had this prof in the past, he sounds like a very good and conscientious teacher. Hey, these things happen to the best of us The point of posting these stories here is to remind all of our adjunct (and non-adjunct prof) readers to double-check those questions before distributing the final exam. As one of our commenter's noted, mistakes such as these, while unintentional, cause students a lot of grief.
Hat tip to Above the Law.
Here are a couple of posts from the Legal Profession Blog and The Faculty Lounge describing a "kinder, gentler" post-Kingsfield form of Socratic teaching that I assume most 1L profs employ. The Faculty Lounge describes "soft Socratic" as creating "a welcoming atmosphere in the classroom where students feel free to participate, but [the prof is also] sufficiently rigorous in calling on students to ensure that everyone is prepared."
The Legal Profession Blog's take on this is to call it the "interrogative lecture" which means "something . . . [that] ink falls between whatever soft Socratic is, and the incredibly annoying "anyone? anyone?" style of Ben Stein in Ferris Bueller's Day Off:"
[T]here are two aspects of classroom manner that make the teaching Socratic of any kind. First, the teacher calls on students (rather than relying on volunteers). The method of calling, and the amount of warning (e.g. panels, going in alphabetical order, working across the seating chart) don't matter - if you call on students other than volunteers, it's Socratic. Second, whether or not, it's "soft," there's a certain amount of squirm that the teacher is willing to allow the student to endure. It may be a nanosecond of squirm, or it may be an extended squirm, but there's squirm. In my view, there's a third element to traditional "hard" Socratic method, but I'm not inclined to make it a sine qua non, because it usually disappears in "soft Socratic": the progression of questions from the statement of the facts of the case, through the court's holding, to a series of increasingly minor variations in the fact pattern, to the point at which the viability of the rule of law announced in the case, at least as a matter of analogical reasoning, falls away. The primary pedagogical purpose is to impart the understanding that in the common law the court's holding and the facts are inextricably linked, and to test the power of the analogy that supposedly connects the thread of the law as it progresses from case to case. (I take no position in this blog post as to whether that's a load of hooey, but I will say that the notion of a case being "on all fours" depends on precisely this relationship. Moreover, if you think about the "law" being taught, say in 1910, which I'm positive was overwhelmingly case law versus statutory interpretation or any kind of "law and..." (even at "elite" schools), it's not surprising that it might well have worked!)
To the extent you find it helpful to compare notes with how others approach classroom teaching, you can read the rest here.
Tuesday, December 29, 2009
Workplace Prof Blog reported on Dec. 28, 2009 that Craig Becker's nomination to the NLRB has been referred back to the President. Reportedly, one Senator, in this case Senator McCain, can put a hold on a nomination, but the candidate can be re-nominated.
As I have mentioned before, I have worked with Craig and he is a first rate lawyer and will make an excellent Board member. He worked for the AFL-CIO, the SEIU and is a former FT law professor at UCLA. What I do not understand is why the President just doesn't make a recess appointment.
Mitchell H. Rubinstein
The parents of a child who was allegedly sexually abused by a high school teacher are suing the Nebraska school district claiming that had it checked the defendant's MySpace page as part of a routine background check, it would have discovered the defendant had some questionable predilections.
According to True/Slant:
As a 14-year-old freshman at Bloomfield Community Schools in Knox County, Nebraska, Caitlin Marvin was struggling in math. A teacher at the school, John Hoffman, offered to tutor her. Hoffman, who was in his late 20s, initially tutored her at school but then shifted the lessons to his home. And the lessons shifted from math tutoring to sexual sessions, at least 20 episodes of “physical, digital, genital and oral, sexual contact” over a five month period according to a court complaint[PDF].
Now Marvin’s parents are suing the school for hiring a sexual predator. They say that the school should have checked out Hoffman’s MySpace page and realized he was obsessed with sex, in part because his name there was “John Pecker Hoffman.”
The complaint states:
In at least his MySpace publication, Hoffman named himself “John Pecker Hoffman” and charged his self description on his MySpace page with sexual allusions, innuendo, and references…. Had Bloomfield reasonably investigated Hoffman upon hiring him, and upon rehiring him annually, it would have discovered these matters and would not have hired him. If Bloomfield knew these things and hired Hoffman anyway, it did so negligently. These facts were all sufficient to impart notice to a reasonably prudent school district employer of Hoffman’s predatory sexual interests and predilections and propensity for sexual misconduct, but they were not reasonably observed or discovered.
You can read the rest of the story here.
Hat tip to Above the Law.
Recent and soon-to-be law grads are in a tough spot: they took on a boat-load of debt to attend law school at a time when it was still a financially attractive, or at least sustainable, career move. But then the legal job market, like real estate, stocks and the economy in general, tanked big time. Now newly minted lawyers - even those from the most elite schools - find themselves carrying lots of non-dischargeable debt but with no jobs to be had.
The ABA is trying to help by lobbying Congress for some student loan deferment relief for the tens of thousand law grads who are stuck.
Neither the Obama administration nor Congress has gone along with a proposal from the American Bar Association to help some recent law school graduates defer their student loans. But that doesn't mean the ABA has stopped pushing.
ABA President Carolyn Lamm said last week that the association is still trying to build support for student-loan relief for recent graduates. The National Law Journal reported in November that the ABA was lobbying the Obama administration on the issue, highlighting the plight of graduates who went into debt but have not found jobs because of the recession.
"What we can't have is this situation of a generation of young lawyers squashed by debt," said Lamm, a Washington, D.C., partner at White & Case.
Lamm said that she or other ABA officials have met with aides on Capitol Hill, at the U.S. Department of Education and in the White House to press their case, so far without success. "Wherever we have an opportunity, we share our views," she said. "They're very interested in education. They're very interested in finding a way to help. I can't say that we've found a solution yet."
You can read the rest here.
Monday, December 28, 2009
A retailer that required a female employee to wear clothing similar to its own brand was not entitled to summary judgment on the EEOC's claim that it violated Title VII's religious accommodation requirement. The employee alleged that the retailer's "look policy" consisted of clothing that was "sexy, form-fitting, and designed to show off body contours and draw attention to the wearer." The policy conflicted with her religious beliefs. She had recently converted to the Apostolic religion, and began to adhere to its regulations regarding dress. Unable to reach an accommodation over how to dress, the employee resigned and the EEOC filed suit on her behalf. The court held that the employer failed to show it would have suffered more than a de minimis hardship had it further accommodated the employee. While it was undisputed that, upon learning of the employee's alleged religious conflict, the retailer immediately engaged in an interactive process designed to understand and attempt to accommodate her religious beliefs, triable issues existed as to whether any of the retailer's proposed solutions (i.e., permitting the employee to wear jeans instead of skirts, wear short skirts with leggings underneath to cover her legs, or to look in other stores for skirts that would both meet her religious requirements and be consistent with the retailer's style) constituted reasonable accommodations. Accordingly, genuine issues remained as to whether the retailer's offers to compromise effectively eliminated the employee's religious conflict, sufficient to trigger her, "correlative duty to make a good faith attempt to satisfy her needs through means offered by the employer." The court also ruled that the EEOC was not entitled partial summary judgment on the issue of liability, finding that that the retailer raised triable issues as to the sincerity of the employee's religious beliefs after she appeared for her deposition wearing "clothing that was potentially inconsistent with her alleged faith" EEOC v Abercrombie & Fitch Stores, Inc, ___F.3d___(E.D. Mo.October 26, 2009).
MItchell H. Rubinstein
Sunday, December 27, 2009
The Sixth Circuit has upheld a 10-year prison sentence of a company official who employed numerous undocumented workers, paid them in cash and failed to withhold federal income tax, Medicare or social security from their paychecks. He pleaded guilty to conspiracy to defraud the United States and to harboring more than 100 undocumented workers, but not before trying to expatriate his assets and flee the country. All told, the company shortchanged the IRS out of upwards of $16 million. One hundred twenty months represented the statutory maximum sentence possible after the trial court imposed its sentence on the two counts consecutively. The sentence was within the Federal Sentencing Guidelines range, so it is presumed reasonable, and a review of the sentencing transcript showed that the trial judge considered the official's mitigation arguments (i.e., his age, criminal history, health, family ties and health of son and cooperation with the federal government), so the trial judge's explanations were neither arbitrary nor unreasonable, determined the circuit court. United States v Rosenbaum, ___F.3d___(6th Cir. November 3, 2009).
Mitchell H. Rubinstein
In yet another example of how the "adjuncting" of American higher education threatens both academic freedom and administrators' accountability to the faculty, Inside Higher Ed is reporting on the case of an Ohio community college adjunct who is suing the school claiming he was fired in retaliation for videotaping the dean during a board meeting. Indeed, the dean has conceded that the videotaping incident is one of the reasons the adjunct was fired.
According to IHE, the adjunct in question as well as another full time contract faculty member were critical of the dean and "active" in a faculty vote of no confidence regarding his leadership. The full time faculty member, however, has already been reinstated after it was determined that he was fired in violation of his contractual rights.
As institutions begin relying more and more on adjuncts, administrators will increasingly take on the attributes of corporate CEO's who are no more accountable to their faculty members than the president of GM is accountable to the assembly-line workers. While that's not a great model for business, it's an unworkable one for educational institutions which depend open and free discourse.
The Town of Oyster Bay, New York recently passed a Local Law which outlaws ‘solicitation of employment’ and which is aimed at Day Laborers. Ordinance 205-32 only calls for a $250.00 fine, but that may be enough to deter a day of employment. A New York Times article about this Ordinance is available here.
The legal question in my mind is whether this law is constitutional. If it is aimed at controlling immigration, it may be preempted. If it is considered a health and safety type of statute, it may be upheld. I suspect, however, that the statute is overbroad and that may result in it being declared invalid-if challenged.
Law review commentary on local laws such as this one which seek to control immigration would be welcome.
Mitchell H. Rubinstei
Friday, December 25, 2009
As readers to this blog all know, the Supremes granted cert to decide if the NLRB has the authority to issue 2 member decisions. The 2d Circuit, in Kingsbridge Heights v. NLRB, ___Fed Appx.___(2d Cir. Dec. 23, 2009), again issued a decision upholding the ability of the Board to issue such decisions. Unfortunately, there is not much analysis contained in this decision.
Mitchell H. Rubinstein
A procedural question I have come across is whether a New York lower court is required to follow an Appellate Division decision when the decision is from a different Department from the lower court. The answer, as explained in Lambner v. Pryer Cashman, ____Misc. 3d____(Kings Co. 2009), is a clear yes. As the court explains:
The distinction which defendant implicitly seeks to draw between sexual harassment and religious persecution is without merit. To limit Williams to its facts, namely sexual harassment, is without support in law or logic. Although a First Department case, Williams is nevertheless binding on this court, at least until the Second Department issues a contrary ruling (see Mountain View Coach Lines v. Storms, 102 AD2d 663, 664). The Second Department cases cited by defendants, Barnum v. New York City Transit Auth. (62 AD3d 736) and Beharry v. Guzman (33 AD3d 742), are unavailing, since they were decided under the New York State Executive Law, not the City's human rights law.
Mitchell H. Rubinstein
Thursday, December 24, 2009
Wednesday, December 23, 2009
On Dec. 21, 2009, the New York Times Blog ran a series of posts on Blackberrys and the right to privacy. In the private sector, there is no right to privacy because their is no state action. The Supreme Court recently granted cert in a case which may define the contours of this important constitutional right.
Mitchell H. Rubinstein
Given stories like this, all profs should assume that whatever materials they hand out in class - whether practice exams, samples, PowerPoint slides, whatever - will eventually wind up on the web, sooner rather than later. So this story from Above the Law about an NYU visiting law prof who recycled a practice exam from his regular gig as a contracts prof at Northwestern seems an especially egregious error in judgment (the article doesn't expressly say that the Northwestern practice exam was posted on the web, but presumably that's how the NYU students got it).
NYU's vice dean didn't learn of the snafu until a few students brought it to his attention that they'd previously worked on the final exam questions during study groups:
I am writing to you about a serious issue that has emerged with respect to Professor Nzelibe’s contracts exam, which was held yesterday. After the exam we were contacted by some students to tell us that the exam consisted of two questions that had both been distributed by Professor Nzelibe to his contracts class at Northwestern last year as practice questions. This is a clear violation of explicit NYU School of Law policy. We know that some students in your class had seen and worked through both questions, and some other students had seen one of the questions. I am very grateful to all the students who came forward to volunteer this information. It would be very useful for the determination of the best response, if any, if any students who saw the questions before taking the exam, and who have not yet contacted Academic Services, could contact me. Needless to say, anonymity will be preserved in the grading process.
Obviously what happened raises a serious problem about the integrity of the exam and the application of our mandatory curve. In consultation with other senior administrators, I am currently considering our options. There is no perfect solution. We are striving for a response that does as well as possible in terms of fairness without unduly burdening the students of Section 2.
Now the question is what should the school do to correct the situation? Above the Law is running a poll to determine which solution its readers think is best: 1. Do nothing. Let the professor simply grade the exam answers as written; 2. The entire class is graded CR/F (credit or fail); or 3. The entire class sits for a new contracts exam in the first days of the spring semester.
The few times problems like this have arisen at schools where I've taught, option # 2 has been the one adminstrators adopted. It also happens to be the option leading in ATL's poll by a margin of two-to-one over the other choices.
How do you think NYU should handle this situation? You can tell us in the comments below.
Tuesday, December 22, 2009
Lampner v. Pryer Cashman, ___Misc.3d___(Kings Co. Nov. 6, 2009), demonstrates the importance of state employment discrimination law. The court in refusing to dismiss the complaint, described how New York law is more liberal than the federal counter part:
The core of the Restoration Act was the revision of Administrative Code §8-130, the construction provision of the New York City Human Rights Law, which states "The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether the federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed." (Williams v. NYCHA. supra, 61 AD3d at 66). "As a result of this revision, the City HRL now explicitly requires an independent liberal construction analysis in all circumstances, even where state and federal civil rights law have comparable language" which analysis must be targeted to understanding and fulfilling its uniquely broad, remedial purposes (Williams, id). The Restoration Act stated that the provisions of the City HRL were construed too narrowly to ensure protection of the civil rights of all persons covered by the law, and mandated that the interpretations of the state or federal provisions may be viewed as a floor below which the City law cannot fall rather than a ceiling above which the local law cannot rise. The act provided that the discrimination complained of need not result in an ultimate action with respect to employment, provided that the discriminatory act or acts complained of must be reasonable likely to deter a person from engaging in protected activity. Noting that there is a wide spectrum falling between "severe or pervasive" on one hand and "merely offensive" on the other, and interpreting the City HRL in its broader and more remedial sense, the court, in considering a purported act of sexual harassment, held that questions of severity and pervasiveness were applicable to damages, but not to the question of liability (id at 76). However, the court recognized that employers could avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences (id at 79-80).
Regarding the law to be applied by a trial-level court where the Appellate Division in another judicial department has ruled, the "general principle of appellate procedure * * * necessary to maintain uniformity and consistency" is that trial courts are required to follow precedents set by the Appellate Division of another department until the Court of Appeals or the Appellate Division in the trial court's department pronounces a contrary rule (see Mountain View Coach Lines v. Storms, 102 AD2d 663, 664 [The Appellate Division is a single statewide court divided into departments for administrative convenience]; accord, People v. Turner, 5 NY3d 476 [a 1914 Third Department case, York City, supra, and in furtherance of the broad and remedial purpose of the City's human rights law, plaintiff does not have to satisfy that test. Rather, the complaint must be sustained as stating a cause of action unless the conduct complained of consisted of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences.
Plaintiff here alleges that due to his religion, defendants, inter alia, put him in a cubicle, put another employee of lower rank in his office, took away his privileges, monitored his phone conversations, and encouraged him not to continue observing his religious tenets. Affording plaintiff the benefit of all favorable inferences, it cannot be said that the allegations of the complaint constitute petty slights or trivial inconveniences, and, thus, the complaint should not be dismissed for failure to state a cause of action.
Mitchell H. Rubinstein
Class Action Procedures In Arbitration is an interesting Nov. 12, 2009 New York Law Journal article (registration required). Samuel Estreicher, the Dwight D. Opperman Professor at New York University School of Law and counsel to Jones Day, and Steven C. Bennett, a partner at the firm, write: "Consumer banks and parties considering the use of mandatory arbitration provisions and class arbitration waivers should monitor the Supreme Court proceedings in Stolt-Nielsen, which hopefully will provide some clarity in this evolving area of practice. In the interim, however, parties should pay careful attention to the arbitration procedure rules they choose to apply to their agreements, as well as choice of law provisions in their agreements, as both could affect the adjudicating tribunal's approach to mandatory arbitration clauses and class arbitration waivers."
The lower court decision pending in the Supremes is Stolt-Nielsen S.A. v. AnimalFeeds International Corp , __F.3d___(2d Cir. 2008).
Mitchell H. Rubinstein
You heard of Fantasy Baseball, Fantasy Football. Now there is Fantasy Supreme Court where contestants compete to be Chief Judge of Fantasy Supreme Court. From the web site:
This Fantasy League allows you to compete against your friends, colleagues, and adversaries to determine who has the greatest ability to predict the outcome of Supreme Court casesAt the end of the Term, you will be ranked against your fellow Associate Justices, and the winner will receive the venerable title of the Chief Justice of Fantasy SCOTUS. With this title comes some to-be-determined prize, The Golden Gavel Trophy, and a feature on Josh Blackman's Blog that you can brag about to all your friends.
The more people that sign up, the more fun it will be, so please help this fledgling site and spread the word.
I hope you enjoy this Fantasy League as much as I will.
What a great idea! I just wish I had the time to play.
Mitchell H. Rubinstein
Hat Tip Legal Writing Prof Blog
The Boston Globe recently reported on a free, open source website called Finalsclub.org that, among other things, pays Harvard students to post their lecture notes online for use by others. The website is causing concern among educators for several reasons. First, "by relying on students, rather than professors, for material and then posting it for free - Finalsclub.org" shifts control over access to that information from the professor to the students. Although Finalsclub.org hasn't been sued, some professors have gone after commercial sites offering the same kind of content but this time for a fee.
And the issue is not just that individual profs lose control over how and to what extent their lectures are disseminated outside the classroom walls, but universities are now being forced to confront the same issues the music and film industries are still reeling from in light of Web 2.0: how to get people to buy your product when so much of it is already being given away for free on the web.
For universities, the fact that the raw material of an education is, increasingly, easily available means they may have to rethink how they pitch themselves to applicants, perhaps concentrating more on their “value-added” features - their facilities, the opportunities for collaboration with faculty and students, the social scene they provide, or the fact that, for the time being at least, paying tuition and showing up on campus still gets one a diploma, while teaching oneself online does not.
The Chronicle of Higher Ed suggests that one consequence of free accessibility to an extensive online repository of class notes is that students will choose not to attend class. Personally, I'm not too worried about that because I think most students decide whether to attend class based on how well it's taught. If sites such as Finalsclub.org didn't exist, students wouldn't feel compelled to attend a class they otherwise found boring or useless. I more worried about what happens when students start using their laptops or mobile devices to surreptitiously videotape class and post it on YouTube for (all) others to see and use.
Monday, December 21, 2009
School board member's e-mail to other board members claimed to have violated educator's right to privacy
Haverhill [Massachusetts] School Committee member Kerry Fitzgerald sent an e-mail to other board members suggesting that they “could be sued if they discussed the performance of school employees by name at a public meeting.”
This led to Haverhill Assistant Principal Dawn Caputo filing a lawsuit against Fitzgerald.
According to an October 29, 2009 newspaper report in the Eagle-Tribune [North Andover, MA], Caputo alleges that “Fitzgerald wrote an e-mail and sent it to other Haverhill School Committee members via an Internet/e-mail system, which was available to public inspection, "thereby violating her right to privacy."
Typically the courts have dismissed such lawsuits by applying the doctrine of “qualified immunity” to such communications between and among public administrators and treated such communications as privileged unless the individual is able to prove "publication"* and prove "malice."
Where the courts find that a “qualified privilege” exists, public officers and employees are deemed immune from liability for acts or omissions committed while acting properly in the execution of their official duties. Frequently a public officer or employee will claim a “qualified privilege” if sued for libel or slander.
Courts have held that communications between public officials in connection with disciplinary investigations or the processing of a disciplinary action is protected by a “qualified privilege.”
As a general rule, the qualified privilege arises when a person communicates concerning a subject in which he or she has an interest or duty to a person having a corresponding interest or duty. The “common interest” qualified privilege is typically applied where members of an organization discuss among themselves matters of concern to the organization.
In Grier v. Johnson, 232 A.D.2d 846, the Appellate Division held that qualified privilege arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest. The court said that the underlying rationale of this “common interest” privilege is that “so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded,” citing Liberman v Gelstein, 80 NY2d 429. For example, in Stukuls v State of New York, 42 NY2d 272, the Court of Appeals upheld the application of the common interest privilege with respect to communications between a college administrator and members of a faculty tenure committee.
However, as the Appellate Division noted in Christenson v. Gutman, 249 A.D.2d 805, if a plaintiff can show that the statement was made with malice by producing evidence of a deliberate intent to ignore or avoid the truth, the privilege will be defeated. In contrast, conclusory allegations of malice, or charges based upon surmise, conjecture or suspicion, will not defeat a claim of qualified privilege. Further, once the privilege is established, the party alleging to have been offended has the burden of demonstrating that the communication was not made in good faith.
* New York State’s Freedom of Information Law [FOIL] is another element to consider. FOIL contemplates all public records, other than those prohibited from disclosure to the public by law, are available to the public, subject to the custodian of such records electing to withhold material that is subject to a “FOIL exception.”
The article reporting on Caputo's lawsuit by Eagle-Tribune reporter Shawn Regan is posted on the Internet at:
Reprinted with permission New York Public Personnel Law Blog
Mitchell H. Rubinstein