Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Tuesday, May 25, 2010

Soon To Be Justice Kagan Was Not A Straight A Student

A B Minus? The Sock! The Horror is an interesting May 24, 2010 New York Times article. It recounts how soon to be Justice Kagan was not a straight A student. She even got a B minus in her first year. Then again, she was not attending just any law school. She was attending Harvard. Whatever you think of the education, the fact of the matter is that Harvard opens up doors that others cannot walk into-such as clerkship on the Supreme Court. Kagan, was a law clerk to Justice Marshall.

In any event, this article is worth a read.

Mitchell H. Rubinstein

May 25, 2010 in Supreme Court | Permalink | Comments (1)

Using stipulated records in support of claims and defenses before an PERB Administrative Law Judge urged by PERB

Matter of Niagara Charter School, PERB Case U-27727
Source: PERB Staff reports

The Board remanded this case to an Administrative Law Judge for further processing aimed at clarifying the stipulated record with respect to an improper practice charge alleging that a charter school violated §209-a.1(d) of the Act when it refused requests to commence collective negotiations. The purpose of the remand was to clarify the record as to which employee organization asserts representational rights pursuant to the New York Charter Schools Act of 1998, Education Law §2854(3)(b-1).

The Board’s decision provides an important practice tip for practitioners before PERB. In remanding the case, the Board emphasized the value and importance of stipulated records as an economical and convenient means of presenting relevant evidence in support of claims and defenses before an ALJ.

At the same time, the Board reminded the parties that they retain the same level of responsibility and care for ensuring a complete record through a stipulated record or through the presentation of evidence at a hearing before an ALJ.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

May 25, 2010 in Public Sector Labor Law | Permalink | Comments (0)

Monday, May 24, 2010

Academic Study on Bullies

Bullying is one of the hotest issues in employment and education law. So who are the bullies and why do they bully people? That is the question addressed in a new academic study that was previewed in the May 21, 2010 New York Times, here. As the article states:

THAT kid who turned your son’s second grade year into a tear- and bruise-ridden ordeal. The anonymous twit who sullied your daughter’s name on Formspring. Your own fifth-grade tormentor, circa 1979, gone but never well enough forgotten. Bad seeds, all? Or perhaps just anxious? Eager to win approval and affection? Two studies out this spring look at bullies’ motivations, inner workings and, yes, feelings.

The first, “The Darker Side of Social Anxiety: When Aggressive Impulsivity Prevails Over Shy Inhibition,” finds bullies in a surprisingly sympathetic place. According to the authors, Todd Kashdan and Patrick E. McKnight, psychologists at George Mason University, contrary to the stereotype of submissive wallflower, a subset of adults diagnosed with Social Anxiety Disorder are violent and aggressive, displaying “hostile interpersonal patterns.” Out of 1,822 adults who are currently diagnosed with or have previously suffered from social anxiety disorder, one in five reported elevated aggression. According to the paper, published in Current Directions in Psychological Science, “For people with social anxiety, it may seem like a reasonable strategy to attack and reject other people before those people get a chance to do the same to them.” Bullies, it seems, are scared, too.

Mitchell H. Rubinstein

May 24, 2010 in Education Law, Employment Law | Permalink | Comments (0)

JSD Degree??

For those seriously interested in a law school career, a JSD degree is something that you might want to consider. An excellent article on SJD degrees is available on Prawfs Blawg, here. If I had to do it all over again, I would get an SJD degree, particularly considering the fact that I did not go to a top 10 law school.

Mitchell H. Rubinstein

May 24, 2010 in Law Professors | Permalink | Comments (0)

School officials who conducted strip search of students were not entitled to qualified immunity

6thcir

Knisley v. Pike County Joint Vocational Sch. Dist., ___F.3d____(6th Cir. May 14, 2010), is an interesting case. There, the Sixth Circuit held that high school officials who conducted a strip search of students were not entitled qualified immunity from the students’ suit alleging violations of their Fourth Amendment rights. Two students in the class of all female students informed the instructor that cash, a credit card and other items having monetary value were missing. The students were then taken to the first aid room, where director searched their purses while a female staff member searched their shoes, socks and pockets. During the first aid room searches, one of the students told the director and the staff member that an unidentified student was hiding the missing items in her bra. The director then instructed a female teacher to take the students individually to the restroom and have them unhook and shake their bras underneath their tops and take their pants halfway down their thighs.

The 6th initially held that a strip search under the circumstances of the present case was unconstitutional and the right to be free from such searches was clearly established. The defendants filed a petition for certiorari with the U.S. Supreme Court. The Supreme Court subsequently vacated the Sixth Circuit’s judgment and remanded the case to the Sixth Circuit for further consideration in light of Safford Unified School District #1 v. Redding, 557 U.S. ___, 129 S. Ct. 2633 (2009). In Redding, the Supreme Court ruled that a strip search of a student by school officials looking for ibuprofen tablets violated her constitutional rights. However, the Court found that school officials were entitled to qualified immunity from the suit because: (1) there was no clearly established law from the Supreme Court finding unconstitutional the strip searching of students under materially similar circumstances; and (2) the appellate courts that had ruled in factually similar circumstances were not in concert.

On remand, the Sixth Circuit panel again affirmed the district court’s denial of qualified immunity. Relying extensively on its prior ruling, the panel assumed that the searches were justified at their inception. It found, based on the precedent established in New Jersey v. T.L.O., 469 U.S. 325 (1985), that the controlling issue was the reasonableness of the scope of the searches. It concluded that “[s]tudents have a significant privacy interest in their unclothed bodies.” The panel rejected the defendants’ various arguments that the students had consented to the searches based on their nursing training, the student handbook policy and the failure to object to the searches at the time.

Mitchell H. Rubinstein



May 24, 2010 in Education Law | Permalink | Comments (0)

Care Givers and Discrimination

A New Minefield is an interesting May 2010 ABA Journal article which states that caregivers are a new protected class and that more and more litigation is occurring. The article is only partially correct. A caregiver is not protected class, but they may be protected from discrimination if one sex is treated differently than the other. They may also be entitled to FMLA leave.

This is an emerging area of the law. There has be some written about this important topic. The EEOC recently issued regulations and additional law review commentary would be welcome.

Mitchell H. Rubinstein

May 24, 2010 in Employment Discrimination, Employment Law, Law Review Articles | Permalink | Comments (0)

Bar Exam Apps

You new it had to be coming. There are now bar exams apps for the iphone. A company called BarMax makes one for the California Bar and it is not cheap. It is over $1,000. BAR/BRI also offers an app, but the students must be enrolled in the their course. Emanuel Bar review also makes a series of apps at $12.99 each. You can read more about it in the May 2010 ABA Journal.

Mitchell H. Rubinstein

May 24, 2010 in Law Students | Permalink | Comments (0)

Sunday, May 23, 2010

Reminder; Attorneys in 2d Circuit Must Renew 2d Circuit Admission Every 5 Years

2dcircseal

2d Circuit Local Rule 46.1 requires attorneys to renew their admission to the 2d Circuit every five years. It provides:

2) Renewal of Admission. An attorney is admitted for a period of five years, and must renew admission every five years for an additional five-year period. Renewal requires submission of an attorney admission renewal application.

(A) Failure to Renew; Inactive Status. An attorney who fails to renew admission within one month after the expiration of the five-year period is placed in inactive status. An attorney in inactive status must complete the renewal process to practice before the court. After 12 months in inactive status, an attorney is removed from the court’s admission roll and must reapply for admission in accordance with (a)(1).

(B) Admission Renewal Schedule. An attorney already admitted to practice in this court must initially renew admission in accordance with the timetable below, and must thereafter renew admission every five years based on this initial renewal date.

(i) Admission on or after July 1, 2004. An attorney admitted to this court on or after July 1, 2004, must renew admission no later than five years from the original date of admission.

(ii) Admission before July 1, 2004. An attorney admitted to this court before July 1, 2004, must renew admission no later than the anniversary date of the original admission as it occurs during the period July 1, 2009 through June 30, 2010.

The process is actually fairly simple. Their is a one page form that must be filled out and you need to submit a $25 check. You need to know your state registration number (in New York you can get that from e-courts) and the date of admission in the 2d Circuit (available on their web site) as well as in every state and court your admitted in. A word to the wise, do not wait until the last minute.

Mitchell H. Rubinstein

May 23, 2010 in Lawyers | Permalink | Comments (0)

Brief Tips

The Legal Writer: Writing Bad Briefs: How to Lose a Case in 100 Pages or More is an excellent article from the May 2010 NYS Bar Journal. Unfortunately, it is not freely available over the internet. If you can get it from a library or Lexis and Westlaw it is worth checking out. It reminds us of what to watch out for when writing briefs. The tips are well known and equally well forgotten. Don't over footnote, don't forgot to put page numbers in, make sure the photocopying is done straight, organize the brief well, don't mistate the law etc.


Mitchell H. Rubinstein

May 23, 2010 | Permalink | Comments (0)

Reminder; Attorneys in 2d Circuit Must Renew 2d Circuit Admission Every 5 Years

2dcircseal

2d Circuit Local Rule 46.1 requires attorneys to renew their admission to the 2d Circuit every five years. It provides:

2) Renewal of Admission. An attorney is admitted for a period of five years, and must renew admission every five years for an additional five-year period. Renewal requires submission of an attorney admission renewal application.

(A) Failure to Renew; Inactive Status. An attorney who fails to renew admission within one month after the expiration of the five-year period is placed in inactive status. An attorney in inactive status must complete the renewal process to practice before the court. After 12 months in inactive status, an attorney is removed from the court’s admission roll and must reapply for admission in accordance with (a)(1).

(B) Admission Renewal Schedule. An attorney already admitted to practice in this court must initially renew admission in accordance with the timetable below, and must thereafter renew admission every five years based on this initial renewal date.

(i) Admission on or after July 1, 2004. An attorney admitted to this court on or after July 1, 2004, must renew admission no later than five years from the original date of admission.

(ii) Admission before July 1, 2004. An attorney admitted to this court before July 1, 2004, must renew admission no later than the anniversary date of the original admission as it occurs during the period July 1, 2009 through June 30, 2010.

The process is actually fairly simple. Their is a one page form that must be filled out and you need to submit a $25 check. You need to know your state registration number (in New York you can get that from e-courts) and the date of admission in the 2d Circuit (available on their web site) as well as in every state and court your admitted in. A word to the wise, do not wait until the last minute.

Mitchell H. Rubinstein

May 23, 2010 in Lawyers | Permalink | Comments (0)

Board member acting on the advice of counsel cannot be deemed to have engaged in willful misconduct

Application of Carol Gillen for the removal of Nicholas Mauro as a member of the Board of Education of the City School District of The City of Middletown, Decisions of the Commissioner of Education, Decision No. 16,030

Carol Gillen asked the Commissioner of Education to remove Nicholas Mauro, a member of the Board of Education of the City School District of the City of Middletown from the Board. Without considering the events underlying Ms. Gillen’s application, the decision is instructive as it sets out the criteria considered by the Commissioner in addressing such a petition.

The decision explains:

The Education Law §306 authorizes the Commissioner of Education to remove a member of a board of education for a willful violation or neglect of duty under the Education Law for a willful disobedience of any decision, rule or regulation of the Board of Regents or the Commissioner of Education.

To be considered willful, the board member’s actions must have been intentional with a wrongful purpose.

A board member who acts on the advice of counsel has not engaged in a willful violation or neglect of duty justifying removal under Education Law §306.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and has the burden of establishing the facts upon which the applicant seeks relief.

Addressing the merits of Gellen’s petition, the Commissioner decided that she had not met her burden of demonstrating that Board member Mauro had engaged in any willful or intentional misconduct warranting his removal from office in view of the fact that the record indicated that Mauro had acted on the advice of counsel regarding the matter.

For those interested in reading the full text of the Commissioner’s determination, it is posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume49/d16030.htm.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

May 23, 2010 in Education Law | Permalink | Comments (0)

Writing Tips

Professor James Levy over at Legal Writing Prof Blog and a contributing editor here posted an interesting story outlining important writing tips for academics. I actually believe these tips are good advice for everyone and that is why I am reproducing them here:

  • Edit your papers a lot (but, in truth, better to be a Combiner than a Mozartian or Beethovenian).
  • Get feedback.
  • Stay current.
  • Be a voracious reader (and ponderer).
  • Persist like an ant.
  • Find emerging areas to research that you are passionate about or at least interested in.
  • Schedule time for writing.
  • Find professional and personal balance.
  • Write all the time.
Mitchell H. Rubinstein


May 23, 2010 in Misc., Legal | Permalink | Comments (0)

Saturday, May 22, 2010

DOL Issues Notice Requiring Federal Contractors To Post Notices Advising Employees of NLRA Rights

Nlrb

The NLRA is the only major federal employment statute that does not require employers to post a notice explaining employee rights under the law. President Obama, however, signed an Executive Order (No. 13496), that requires federal contractors to post such a notice. The DOL recently issued regs and a sample  form that must be posted.  

Mitchell H. Rubinstein

May 22, 2010 in Labor Law, NLRB | Permalink | Comments (0)

More On Student Unpaid Internships

The Economic Policy Institute published a paper on April 5, 2010 about unpaid internships and the potential end around of our nation's employment laws-particularly the FLSA. We have addressed this topic several times. Researchers may find this paper of interest because it is full of interesting stats. As the paper states:

Indeed, internships have become an implicit requirement for college students seeking employment after graduation. One recent survey found that half of new college graduate hires had previously completed internship experiences at the firm at which they were hired (Gardner et al. 2008; NACE 2008). A separate survey of employers found that 76% of firms reported relevant work experience in the form of internships as the primary decision to hire a new college graduate (NACE 2008). Employers have come to expect an increasing skill level and prior work experience for their new hires even before graduates start employment; internships are thus a key mechanism for students and recent graduates to develop these proficiencies (Hanneman and Gardner 2009).

Despite internships’ importance to the labor market as a crucial form of vocational training and pre-employment vetting, they are only loosely regulated through vague and outdated employment law. Moreover, these regulations go essentially unenforced. As this paper demonstrates, a lack of clear regulation and enforcement of internship-related laws:

  • Leaves the majority of interns unprotected by workplace discrimination and harassment statues such as the Civil Rights Act, Americans with Disability Act, and the Age Discrimination in Employment Act;
  • Fosters the growth of unpaid internships, which in turn limits participation to only the students who can afford to forego wages and pay for living expenses, effectively institutionalizing socioeconomic disparities; and
  • Permits (and even incentivizes) the replacement of regular workers with unpaid college students and recent graduates.

In light of these outcomes, this paper contends that the current system of regulations governing internships must be reformed, both for the immediate protection of students’ rights and also to maintain a strong and vibrant labor market that compensates all workers fairly.

Mitchell H. Rubinstein

Hat Tip: Prof. David Yamada (Suffolk Law School).

May 22, 2010 in Articles, Employment Law | Permalink | Comments (0)

Social Networking and Employment Law

Update: Legal Risks for Employers Who Use Social Networking Web Sites is an interesting April 5, 2010 New York Law Journal article (free registration required). It about how the use of a social networking site, such as Facebook, could cause employment law issues for both employers and employees. As the article explains:

Employers should be aware that employees' use of social networking sites may increase an employer's risk of being subjected to harassment claims. Because communications through social networking sites allow for impersonal, "non-face-to-face" interaction, individuals may not perceive that their electronic communications are subject to the usual guidelines governing appropriate professional conduct. Employees also may become emboldened by their pseudo-anonymity to act in ways they otherwise would not—in essence taking on a new personality.3

Likewise, a lack of established guidelines governing the new methods for communication provided by social networking sites also may contribute to an increased risk of inappropriate employee behavior. For example, a Facebook "poke" causes an alert to be sent to the recipient notifying them they have been "poked" along with the identity of the sender. The inherent ambiguity in a Facebook "poke" may actually foster its impermissible overuse. In 2009, a Tennessee woman was arrested and jailed after violating an order of protection—which prohibited communications with another woman—after she used Facebook to "poke" the protected individual.4

Although courts have yet to address this issue in the employment context, employers should be aware that communications occurring through social networking sites can, under certain circumstances, rise to the level of harassment. Employees will almost certainly argue that unwanted contact by supervisors or co-workers may satisfy the elements of a hostile work environment claim, requiring that the workplace be "permeated with discriminatory intimidation, ridicule, and insult…that is sufficiently severe or pervasive to alter the conditions of the victim's employment.

The best advise I can give any one is caveat emptor, let the buyer beware. Don't put anything on Facebook or like sites that you would not want your family and employer to see.

Law review commentary on this topic is certainly needed.

Mitchell H. Rubinstein

May 22, 2010 in Articles, Employment Law, Law Review Ideas | Permalink | Comments (0)

Friday, May 21, 2010

Justia Ranks Adjunct Law Prof Blog 61st Most Popular of All Time

Justia ranks blogs. I am delighted to report that we are ranked number 61 of all time. It ranks 3,000 of them so this is quite an honor. Of course, Justia covers just law and legally related blogs. Who are the top 10 (actually 11)? They are as follows:

Sorted by Popularity | Sort by Name | Sort by Last Post Date

Today | This Week | This Month | All Time


A legal tabloid that provides news and gossip about the profession's colorful personalities and powerful institutions, as well as original commentary on breaking legal developments.
Last Updated: May 21, 2010 - Rank All Time: 1
Covers sex offender laws and cases.
Last Updated: May 20, 2010 - Rank All Time: 2
Covers Indiana law, as well as interesting developments in law and government. By Marcia Oddi.
Last Updated: May 21, 2010 - Rank All Time: 3
News and information gateway to web based services provided by the New York State Supreme Court Criminal Term Library in New York County.
Last Updated: March 31, 2010 - Rank All Time: 4
Covers law and business and the business of law. By the Wall Street Journal.
Last Updated: May 21, 2010 - Rank All Time: 5
Covers mergers and acquisitions, investment banking, IPOs, private equity, hedge funds, venture capital and law. A Financial News Service of The New York Times.
Last Updated: May 21, 2010 - Rank All Time: 6
By University of Cincinnati Law Professor Paul L. Caron and Ron Jones.
Last Updated: May 21, 2010 - Rank All Time: 7
By Moritz College of Law Professor Douglas A. Berman.
Last Updated: May 21, 2010 - Rank All Time: 8
Covers appellate litigation. By Howard J. Bashman.
Last Updated: May 21, 2010 - Rank All Time: 9
Covers CAFA, class certification, employment law, FCRA, FDCPA and multidistrict litigation. Published by Michael Hassen of Jeffer Mangels Butler & Marmaro LLP.
Last Updated: May 15, 2010 - Rank All Time: 10
Online magazine of opinion. By University of Tennessee College of Law professor Glenn Reynolds.

Last Updated: May 21, 2010 - Rank All Time: 11 http://pajamasmedia.com/

Mitchell H. Rubinstein

May 21, 2010 in Blogs, Faculty, Blogs, Legal | Permalink | Comments (0)

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
Assistant General Counsel Tacoma Public Schools Tacoma, Washington

May 21, 2010 in Lawyer Employment | Permalink | Comments (0)

Thursday, May 20, 2010

Law School Clinic Backlashes

School Law Clinics Face Backlash is an interesting April 3, 2010 New York Times article. It is about how some clinics are under attack for positions they may have taken in litigation. In some states, legislatures are looking at the school's funding while in others the clinics themselves have been sued.

I suspect that this is nothing new and while the story is an interesting read, it is much to do about nothing. If you sue someone, don't be surprised if they counter sue or seek to otherwise go after you. That is just how it is.

Mitchell H. Rubinstein

May 20, 2010 in Law Schools | Permalink | Comments (0)

Dual Filed Wage Claims Under The FLSA

Jurisdiction Over Dual Filed Wage and Hour Actions is an interesting April 2, 2010 New York Law Journal article (registration required). It discusses dual-filed actions,where employees bring the federal claims as an opt-in collective action under FLSA §16(b) and the state law claims as an opt-out class action under Federal Rule of Civil Procedure 23. As the article points out, federal courts are split whether they should exercise supplemental jurisdiction in such cases. Law review commentary on this important issue is needed.

Mitchell H. Rubinstein

May 20, 2010 in Articles, Employment Law, Law Review Ideas | Permalink | Comments (0)

Same Sex Marriage In New York

After Godfrey v. Spano: Is New York's High Court Ready to Recognize Out of State Same Sex Marriages? is an excellent May 2010 NYS Bar Journal article. The article discusses the NYS Court of Appeals decisions in Hernandez v. Robles and Godfrey v. Spano and concludes that the NYS Court of Appeals may be ready to recognize gay marriages legally contracted in other states. The article contains cites to gay marriage cases from other states and is certainly worth reading.

Mitchell H. Rubinstein

May 20, 2010 in Articles, Discrimination Law | Permalink | Comments (2)