Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, April 30, 2010

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Labor & Employment Attorney Lozano Smith Fresno, California
Legal Counsel II Whittier Area Cooperative Special Education Program Whittier, California
School Attorney Harbottle Law Group Orange County, California
Special Education Attorney Lozano Smith Fresno, California
School Attorney Law Firm Denver, Colorado
General Counsel School Board of Broward County Florida
School Law Attorney Brannan Legal Search Chicago, Illinois
Attorney Walsh, Anderson, Brown, Gallegos & Green, P.C. Austin, Texas
Attorney Walsh, Anderson, Brown, Gallegos & Green, P.C. Irving, Texas

April 30, 2010 in Lawyer Employment | Permalink | Comments (0)

Thursday, April 29, 2010

Supremes Hold Public Policy Prevents Class Action Arbitration When The Contract Is Silent


Stolt-Nieslen v. AnimalFeeds Int'l., 559 U.S. ___(April 27, 2010), is an important arbitration decision. In a 5-3 decision (Justice Sotomayor took no part in the decision), the Court holds that public policy prevents arbitration at least where the contract is silent on this point and there is no bargaining history to turn to. As the Court explains:

From these principles, it follows that a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. In this case, however, the arbitration panel imposed class arbitration even though the parties concurred that they had reached “no agreement”on that issue, see App. 77a. The critical point, in the view of the arbitration panel, was that petitioners did not “establish that the parties to the charter agreements intended to preclude class arbitration.” App. to Pet. for Cert.51a. Even though the parties are sophisticated business entities, even though there is no tradition of class arbitration under maritime law, and even though AnimalFeeds does not dispute that it is customary for the shipper to choose the charter party that is used for a particular shipment, the panel regarded the agreement’s silence on the question of class arbitration as dispositive. The panel’s conclusion is fundamentally at war with the foundational FAA principle that arbitration is a matter of consent.

I see nothing remarkable about this decision. There are scores of decisions holding that a party may only be compelled to arbitrate the dispute if he in fact agreed to arbitrate and that there are certain circumstances where public policy precludes arbitration-no matter what the parties agreed. The Court's decision in Misco comes to mind, which was not cited by the Court. 

What I found most interesting about the decision was FN 3 where the Court expressly refuses to decide whether "manifest disregard" is the basis to set aside an arbitration decision. Thus, that invites additional litigation over this question.

No matter how one views the case, it is of limited utility in labor and employment law because these types of issues do not come up often and the decision involved an admiralty contract under the FAA. The case also involved an interlocutory appeal which is permitted under Section 16(a)(1)(E) of the FAA. In most other federal litigation, interlocutory appeals are not permitted. 

Law review commentary about this case would be most welcome. (Do my New York Law School Employment Law students get the hint?)

Mitchell H. Rubinstein

April 29, 2010 in Arbitration Law, Employment Law, Law Review Ideas | Permalink | Comments (0)

Connecticut proposes to increase fines for misclassification of employees

A pending Bill in the state of Connecticut, House Bill 5204, would increase the fine employer's who misclassify employees pay from $300 per violation to $300 a day per violation. Existing Connecticut law provides that an employer that misrepresents either the number of employees or casts them as independent contractors to defraud or deceive an insurance company is guilty of a class D felony.

Readers to this blog are well aware that many employers misclassify workers in order to avoid being subject to employment law. This statute is certainly a step in the right direction.

Mitchell H. Rubinstein

Hat Tip: CCH Work Day

April 29, 2010 in Employment Law | Permalink | Comments (0)

George Mason Law School Facing Sex Discrimination Trial By Law Prof

The ABA Journal News Now recently reported on a sex discrimination suit that is headed for trial by a law professor against George Mason Law School. What makes the case somewhat unusual is that the plaintiff is the of one of the most prominent law professors in the country. This will be an interesting case to keep an eye on.

Mitchell H. Rubinstein

April 29, 2010 in Law Schools, News, Legal News | Permalink | Comments (0)

Obama Nominates Openly Gay Male To Circuit Court

The ABA Journal News Now recently reported that President Obama nominated the first openly gay male to a federal circuit court. As the posting states:

The nominee, Edward DuMont, is the first openly gay person to be nominated to a federal appeals court, according to Metro Weekly and the Keen News Service. DuMont indicated his involvement in gay and lesbian groups in his Senate Judiciary Committee questionnaire.

Mitchell H. Rubinstein

April 29, 2010 in Judges | Permalink | Comments (0)

Wednesday, April 28, 2010

Adjuncts and practitioners argue for more focus on practical skills at "Future of Legal Ed conference"

On the heels of Harvard Law Dean Martha Minow's state of the law school address arguing that medical schools have done a comparatively much better job training students for practice than law schools have done with their own students, comes this article from the Chronicle of Higher Ed entitled Law Schools Could Take a Hint From Medical Schools on Curriculum Reform, Experts Advise.

From CHE:

Participants in the "National Forum on the Future of Legal Education" said law schools should emulate medical schools and transform the third year into clinical rotations, so that students know the nuts and bolts of being a lawyer by the time they graduate. Such changes are needed, they said, at a time when law firms are hiring fewer lawyers, and clients are less willing to pay for young associates to gain on-the-job training with their cases.

Many of those who shared ideas at the forum were adjunct law professors or lawyers who had previously taught law. But they were dispensing advice as law-firm partners and judges who hire and work with young lawyers, who they said often lack the analytical and writing skills they need to be effective their first year out of school.

"What law firms do is train junior lawyers, and they are basically unprofitable in their first or second years," said Andrew A. Giaccia, an executive partner with Chadbourne & Parke LLP, a global corporate law firm.

At some firms, 50 percent or more of these junior lawyers leave during their first two years, he added. "When they're gone, that training investment is gone," Mr. Giaccia said. "It's not an economic model that makes sense."

He argued for shaving one year off the three-year J.D. to allow students to complete their basic course work in two years—more like an M.B.A. After that, schools could create personalized tracks to provide additional training based on students' career choices. A student planning to go into solo practice, for instance, could spend an extra year getting advanced training in that.

You can read the rest here.


April 28, 2010 | Permalink | Comments (0)

Follow-up to the prostitute blogging professor

Last week we told you about the Cal-State Northridge Econ Prof who published a blog about picking up prostitutes in Thailand.  Despite the heat it brought down on him and his employer (the prof blogged on his personal time and used no university resources), Professor Kenneth Ng vowed:  I'm not going to let anyone make me take it down."

Yeah, well . . . never say never.  He's taken the blog down after all.  As Inside Higher Ed reports:

Under fire for promoting sex tourism in Thailand, a California State University professor has taken down a controversial Web site partly devoted to the subject.Kenneth Ng, an associate professor of economics at Cal State Northridge, “reluctantly” took down the site Friday, Provost Harry Hellenbrand said in a statement. Ng said he was discontinuing the site because of the impact it was having on the campus’s reputation, not because he thought its content was inappropriate. Highlighting the complexity of the debate that unfolded over the site, Hellenbrand said “We are trying to balance two principles that, in this case, clashed. Our commitment to gender equity compels us to see the site as offensive; our commitment to expression urges us to tolerate words and pictures we find intolerant.” The site,, now features a few posts about the controversy that proved its undoing.

Hat tip to IHE.


April 28, 2010 | Permalink | Comments (0)

Bloggers Not Protected Under N.J. Shield Law

Too Much Media v. Hale, A-0964-09, is the first N.J. appellate ruling and only the second in any state to address whether bloggers can invoke the news persons' privilege to protect the identity of their sources. In this decision, the court held that bloggers are not part of the news media and therefore, they cannot invoke this privilege.T he only other state court case to consider whether bloggers are protected as journalists is O'Grady v. Superior Court , 44 Cal. Rptr. 3d 72 (2006), where the California Court of Appeals denied enforcement of a subpoena seeking the names of confidential sources from two Internet-only publications. An April 26, 2010 NJ Law Journal article discussing this case is available here.

It is tought to say whether the decision is correct. Clearly, in some cases, bloggers can be considered part of the media. For example, someone who writes for the NY Times Blog may be considered a journalist.However, even someone who writes for adjunct law prof blog may be considered a journalist if we operated in a manner similar to that of journalists.

Mitchell H. Rubinstein

April 28, 2010 in Blogs, Legal, Litigation, Misc., Legal | Permalink | Comments (0)

DOL Publishes Spring 2010 Regulator Agenda

The U.S. Department of Labor just published its Spring 2010 Regulatory Agenda. Information related to the agenda, including fact sheets, videos, and information about Web chats with agency representatives, is available at

As you might expect, health and safety issues tops the agenda.

Mitchell H. Rubinstein

April 28, 2010 in Employment Law, Labor Law | Permalink | Comments (0)

Tuesday, April 27, 2010

Porn on the job

Surfing porn while working is not a new problem. Therefore, I fail to understand the public out cry over the fact that some SEC lawyers and staffers were surfing porn while working. An ABA Journal News Now article that summarizes this issue is available here.

I know it should not been done, but people shouldn't jay walk either-it happens! The problem is not the porn, but rather that the employees are not working. The employees should face discipline, but the amount of discipline should be based upon the amount of time that they were not working-not because they were surfing for porn. Thus, the employee who was checking her bids on e-bay is also guilty of misconduct if it occurred during work time. Something to think about.

Mitchell H. Rubinstein

April 27, 2010 in Employment Law | Permalink | Comments (1)

Teacher Layoffs Around the Corner in NYC?

The New York Times apparently thinks so. The idea is frightening.

Mitchell H. Rubinstein

April 27, 2010 in Education Law | Permalink | Comments (0)

Some Washington Area Law Schools Are Trying To Help Students Get Summer Jobs

The March 16, 2010 Blog of the Legal Times reported that some Washington area law schools are taking steps to help students obtain summer employment. Unfortunately, the article is short on details. It does describe one school that his increasing a fund to presumably fund summer jobs and increasing access to the law school for recruiters.

Mitchell H. Rubinstein

April 27, 2010 in Law Schools, Law Students | Permalink | Comments (0)

Congratulations, South Texas College of Law

Belated congratulations to the South Texas College of Law advocates at the National American Bar Association Moot Court competition in Chicago earlier this month.  South Texas claimed its 15th national championship - no other law school has won the prestigious competition more than twice.  South Texas also claimed top individual advocate and best brief honors.  The complete summary from the competion is here.

In other hometown news, South Texas reports that U. S. News & World Reports named the downtown Houston school the No. 3 school in the nation in trial advocacy instruction.  This is little wonder -- Under Associate Dean Gerald Treece's guidance, South Texas has won 104 national advocacy competitions since began the program in the late 1970s.  South Texas also placed No. 15 in the USN&WR's rankings for students seeking to learn about alternative dispute resolution, thanks to the contributions made to the school's program by the Frank Evans Center for Conflict Resolution.

The complete press release from South Texas College of Law is here.

Craig Estlinbaum

April 27, 2010 in Law Schools | Permalink | Comments (0)

On Last Minute Pre-Exam Questions

If you are a law professor, adjunct or otherwise, your exam season is likely either here or just around the corner.  Professor Jessie Hill (Case Western Reserve) at PrawfBlawg today posted, "Could you please summarize civil procedure for me?" -- a timely post seeking comments on how to handle email questions from students as the final exam approaches.

I do not keep regular office hours - once the last class ends, I only take questions by email, but I send the answer to all the students who give me an email address, mostly on the premise that if one student has the question, others probably do too.  My normal class has 15 students, give or take a couple, most of whom are 3L's, so I'm not normally bombarded with questions (knock on wood).  I have had good luck with answers that do not directly answer the question so much as provide the student leads on where the answer might be found.

Of course, no student has ever asked, "Could you please summarize civil procedure for me?" either.

Craig Estlinbaum

April 27, 2010 in College Professors | Permalink | Comments (0)

Monday, April 26, 2010

School Bullying and The Courts

Bullying was always and remains a significant problem in schools. Of course, "the bully" may be subject to discipline by the school. But that can take time and the remedies are often ineffective. The ABA Journal Law News Now reports on a New Hampshire lawyer who is seeking a retraining order in court to stop the bullying. Sounds like a wonderful idea, but what about the parents who cannot afford to retain a lawyer?

Mitchell H. Rubinstein

April 26, 2010 in Education Law | Permalink | Comments (0)

Employee has the burden of proof that the decision that he or she did not satisfactorily complete a probationary period was made in bad faith

Matter of Davids v City of New York, 2010 NY Slip Op 03247, Decided on April 22, 2010, Appellate Division, First Department

Joseph Davids was demoted* from the rank of probationary captain to his permanent title of lieutenant Davids filed a petition pursuant to CPLR Article 78 in which he asked the court to annul the City’s action.

The Appellate Division unanimously affirmed Supreme Court’s decision dismissing Davids’ petition.

The court found that the record indicated that there was a rational basis for the City’s decision -- his job performance was unsatisfactory. Further, the Appellate Division said that Davids had not met his burden of establishing that the demotion was made in bad faith.

Although Davids contended that the City failed to follow the procedures for conducting and preparing his performance evaluations, the court decided that this was a “technicality” and the delays complained of by Davids “were undertaken in an attempt to provide [Davids] with time to bring his performance up to department standards and did not evidence ”bad faith” on the part of the appointing authority.

* Randall Comments: Although the Appellate Division characterized this personnel change as a demotion [in title and grade], in reality Davids was reinstated to his former position from which he was on leave pending the satisfactory completion of his probationary period upon his promotion to Captain.

Civil Service Law Section 63 provides, in pertinent part, “When probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term.”

Demotion as a personnel transaction is typically encountered in connection with a disciplinary action and is, for example, one of several penalties permitted to be imposed upon an employee found guilty of charges preferred against him or her pursuant to §75 of the Civil Service Law or as one of the penalties authorized in a contract disciplinary procedure.

Significantly, the courts have distinguished between promotion from a promotion list and an employee "advancement" in the public service via an open-competitive examination as illustrated by the decision in Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805. Here the court distinguished a promotion from a promotion list from a “promotion” to a higher level position from an open competitive examination list.

Similarily, in Bethel v McGrath-McKechnie, 95 N.Y.2d 7, the Court of Appeals ruled that Bethel had not been promoted and thus Civil Service Law Section 63(1) did not apply to her situation. Citing Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805, the court said because Bethel accepted an original appointment to the position of Staff Analyst after passing the open competitive examination, she effectively resigned her permanent position as a Contract Specialist.

The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 26, 2010 in Public Sector Employment Law | Permalink | Comments (0)

Denial of office space could constitute a materially adverse action


Lockridge v Univ of S Maine, ___F.3d____(1st Cir. March 10, 2010), is an interesting case. I bring it to your attention because the court recognizes that a denial of an office could be a material adverse action under Title VII. .A female professor could not proceed with her Title VII retaliation claim based on being denied a request for a more desirable office space because denial of the office left her in no worse a position than that held by similarly situated faculty members. Under certain circumstances, denial of a request for office space could constitute a materially adverse employment action, the First Circuit noted, but it was not in this case based on the particular facts. The  court also rejected the professor's gender bias claim based on her denied pay raise resulting from an unsatisfactory "scholarship" rating. The professor's hostile work environment claim also failed because it relied predominantly on untimely acts; the continuing violation doctrine did not apply because neither the pay raise denial or the office space denial qualified as an "anchoring act" that occurred within the limitations period.

Mitchell H. Rubinstein

April 26, 2010 in Employment Discrimination | Permalink | Comments (0)

Lawyer Sues For Defamation

Lawyers are not immune from lawsuits. A March 16, 2010 article in the Blog of the Legal Times discusses a defamation suit filed by a temp attorney because someone apparently told his employing agency that he was fired for stealing. I hope the plaintiff lawyer realizes that, depending upon the facts, the statement made to his employing agency may be protected by a qualified privilege.

Mitchell H. Rubinstein

April 26, 2010 in Employment Law, Lawyers | Permalink | Comments (0)

Sunday, April 25, 2010

Former Labor Secretary Willard Wirtz Dies At 98

The New York Times reported that former Labor Secretary Willard Wirtz died at age 98. Wirtz was Labor Secretary during the Kennedy and Johnson Administration. While he has been out of the public spot light for quite some time, lawyers and scholars will recognize his name because it appears on some of the leading FLSA precedents.

Mitchell H. Rubinstein

April 25, 2010 in News | Permalink | Comments (0)

COBRA Premium Reduction

Source - U. S. Department of Labor, Employee Benefits Security Administration Fact Sheet

The American Recovery and Reinvestment Act of 2009 (ARRA), as amended, provides for premium reductions for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA.

The premium assistance is also available for continuation coverage under certain State laws. “Assistance Eligible Individuals” pay only 35 percent of their COBRA premiums; the remaining 65 percent is reimbursed to the coverage provider through a tax credit.

The premium reduction applies to periods of health coverage that began on or after February 17, 2009 and lasts for up to 15 months.

Generally, the maximum period of continuation coverage is measured from the date of the original qualifying event (for Federal COBRA, this is generally 18 months).

However, ARRA, as amended, provides that the 15 month premium reduction period begins on the first day of the first period of coverage for which an individual is “assistance eligible.” This is of particular importance to individuals who experience an involuntary termination following a reduction of hours. Only individuals who have additional periods of COBRA (or state continuation) coverage remaining after they become assistance eligible are entitled to the premium reduction.

Those who are eligible for other group health coverage (such as a spouse's plan or new employer’s plan) or Medicare are not eligible for the premium reduction.

There is no premium reduction for periods of coverage that began prior to February 17, 2009.

The full text of the Fact Sheet is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 25, 2010 in Employment Law | Permalink | Comments (0)