Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, September 10, 2011

Employee not entitled to interest on back pay due upon reinstatement to his or her former position pursuant to court order


Miller v Nassau County Civ. Serv. Commn2011 NY Slip Op 05033, Appellate Division, Second Department

Roberta Miller sued the Nassau Civil Service Commission, seeking reinstatement to her former position and for back pay.

Miller appealed Supreme Court’s failure to award her predecision interest.*
The Appellate Division rejected her claim for “predecision interest,” noting that the award of back pay to in this instance is derived from Civil Service Law §77, "and that statute does not provide for predecision interest." Citing Matter of Bello v Roswell Park Cancer Inst., 5 NY2d 170.

§77, in pertinent part, provides that “Any officer or employee who is removed from a position in the service of the state or of any civil division thereof in violation of the provisions of this chapter, and who thereafter is restored to such position by order of the supreme court, shall be entitled to receive and shall receive from the state or such civil division, as the case may be, the salary or compensation which he would have been entitled by law to have received in such position but for such unlawful removal, from the date of such unlawful removal to the date of such restoration, less the amount of any unemployment insurance benefits he may have received during such period….” 


.* See for a summary of the earlier determination by the Appellate Division giving rise to this appeal.

The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein


September 10, 2011 in Public Sector Employment Law | Permalink | Comments (0)

Friday, September 9, 2011

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Special Education Attorney Harbottle Law Group Orange County, California
Legislative Counsel Americans United for Separation of Church and State Washington, D.C.


September 9, 2011 in Lawyer Employment | Permalink | Comments (0)

Book Review Highlight Berger, Trial Advocacy and Clark, Cross-Exam Handbook

0735598436 0735598169

In Feb. 2009, I reviewed the 2d edition of Berger, Mitchell and Clark, "Trial Advocacy, Planning, Analysis, and Strategy" 2d edition, which I highly recommended. I am pleased to again highly recommend the Third Edition which just came out in 2011 I am also pleased to recommend the companion book "Cross Examination Handbook" which also just came out in 2011 by Clark, Dekle, Sr. and Baily. 

I wish law schools utilized more texts such as these. In a nutshell, the trial advocacy book teaches you how to try cases and the cross examination book teaches you about the art-and it is an art- of cross examination. 

The cross examation book spans 389 pages and contains a CD with sample files and assignments. The trial advocacy book spans 619 pages and contains a DVD which is a case demonstration that is well worth watching. 

Aspen's web site describes the cross examination book as follows:

  • Concrete instruction on planning the winning cross-examination, such as how to select the content and mold it into a persuasive concession-seeking or impeachment cross
  • Practical techniques and strategies for performing cross, including witness control, handling problematic witnesses and successfully cross-examining experts
  • Illustrative cross-examinations from notable trials, such as the O. J. Simpson, Scopes, Senator Stevens, and Enron, show how to apply cross strategies and techniques
  • Case files and role-play assignments provide opportunities to practice preparing and performing cross-examinations in two criminal and two civil cases
  • Ethical and legal boundaries of cross-examination
  • Teacher’s Manual and Actors Guide and suggested syllabi make the exercise material both teacher-, lawyer- and student-friendly

The trial advocacy book is described in turn as:

Trial Advocacy: Planning, Analysis, and Strategy conveys a clear understanding of the trial process, how lawyers think, and the strategies and techniques of trial persuasion. An accompanying DVD features trial demonstrations by veteran litigators. A regularly updated companion website provides articles, supplemental materials, downloads, and links to additional resources.

Updated throughout, the timely Third Edition provides checklists in each chapter as a useful teaching aid. Topical coverage has been expanded to include discussion of Internet interference during trial and the use of focus groups, trial simulations, and technology in trial preparation.

Trial Advocacy: Assignments and Case Files, a separate publication, contains 84 role-play assignments and is cross-referenced to Trial Advocacy: Planning, Analysis, and Strategy.

Many a lawyer can benefit from reading these two books. I have one constructive thought. Both books contain virtually no cites to cases and only occassionally cite to FRE. I would have much preferred the books if they contained footnoted authority. That way, it would be easier for a lawyer to back up a position he or she may have taken. 

Mitchell H. Rubinstein




September 9, 2011 in Book Reviews | Permalink | Comments (0)

Thursday, September 8, 2011

Federal district court in California grants preliminary injunction allowing student with autism to be accompanied by service dog at school

C.C. Cypress Sch. Dist., ___F.Supp. 2d ____ (C.D. Cal. Jun. 13, 2011), is an interesting case. A federal district court issued a preliminary injunction allowing a student with autism to be accompanied by his service dog at school. The court concluded that the student had demonstrated a likelihood of success on the merits of his Americans with Disabilities Act (ADA) claim that the dog is a service dog under the ADA and the school district failed to demonstrate that its educational program would be fundamentally altered if the dog is allowed to accompany him to school. The court also found that the student had satisfied the other three elements required for issuance of injunctive relief.

Law review commentary on this controversial issue would be most welcome.

Mitchell H. Rubinstein


September 8, 2011 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (1)

Wednesday, September 7, 2011




Myers v. Toojay's Management Corp., No. 10-10774, 2011 WL 1843295 (11th Cir. May 17, 2011), is an interesting case. The 11th Circuit held that a  private employer did not violate the Bankruptcy Code's antidiscrimination provision by rejecting a job applicant who has filed for bankruptcy protection. This is an issue that you do not see very often in employment law.
Mitchell H. Rubinstein


September 7, 2011 in Employment Law | Permalink | Comments (2)

Tuesday, September 6, 2011

How To Cite To A Blog??

This blog (as well as many others) has been cited in several law review articles. However, there has not been any consistency in the way I have been cited. In case you don't realize it, we are talking Bluebook here. Now, there is the whole debate whether cite form matters-I believe it does, but only to a limited degree. It is hard to argue that there should not be consistency. So, how do you cite a blog? Also, how do you cite to a blog comment?

Vodzalegal has listed how they think it should be done. But are they right?  Do any of you Bluebook experts have any thoughts?

Mitchell H. Rubinstein

Hat Tip; Legal Skills Prof Blog

September 6, 2011 in Blogs, Legal | Permalink | Comments (1)

Top Labor Songs

The Nation, of all publications, ran an interesting Sep't. 4, 2011 story for Labor Day which listed the top ten labor songs. No surprise for the top spot. Pete Seeger, “Solidarity Forever”

Mitchell H. Rubinstein

September 6, 2011 in Information | Permalink | Comments (1)

Teamsters President Jimmy Hoffa Labor Day Speech

"We got to keep an eye on the battle that we face: The war on workers. And you see it everywhere, it is the Tea Party. And you know, there is only one way to beat and win that war. The one thing about working people is we like a good fight. And you know what? They've got a war, they got a war with us and there's only going to be one winner. It's going to be the workers of Michigan, and America. We're going to win that war," Jimmy Hoffa said to a heavily union crowd.

"President Obama, this is your army. We are ready to march. Let's take these son of bitches out and give America back to an America where we belong. . ." 

Way to go President Hoffa.

Mitchell H. Rubinstein 


September 6, 2011 in News | Permalink | Comments (1)

Saturday, September 3, 2011

Can you purchase items with gold coins?

The U.S. makes several coins in gold and silver which are technically legal tender. However, as the coins are worth substantially more than their face value, they are not used. Utah recently passed a law designed to change this. It permits businesses to accept these coins based upon market value, as opposed to face value.

Apparently, the law was enacted as a result of some tea party backers who advocate a return to the gold standard. In any event, good luck trying to find someone who will accept the market value of a coin. Good luck also agreeing on market value.

A New York Times article about this is available here.

Mitchell H. Rubinstein

September 3, 2011 in Misc., Legal | Permalink | Comments (2)

Friday, September 2, 2011

School Law Jobs

School Law Jobs
Job Title Employer Job Location
School Attorney Currier & Hudson San Diego, California
Special Education Attorney Harbottle Law Group Orange County, California
Assistant General Counsel Seattle Public Schools Seattle, Washington


September 2, 2011 in Lawyer Employment | Permalink | Comments (0)

Thursday, September 1, 2011

Employee who was terminated before expiration of his FMLA leave failed to show violation


An employee whose medical condition rendered him unable to work for substantially longer than the 12-week leave period provided for by the FMLA failed to show any prejudice as a result of his termination. The interesting thing about this case was that his termination occurred prior to the expiration of the leave period Hearst v Progressive Foam Technologies, Inc, ____F.3d____ (8th Cir, June 8, 2011).

Mitchell H. Rubinstein

September 1, 2011 in FMLA | Permalink | Comments (0)