Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, August 31, 2012

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Special Education Attorneys Harbottle Law Group Orange County, California
Associate Attorney Semple, Farrington & Everall, P.C. Denver, Colorado
Associate Counsel Baltimore City Public Schools Baltimore, Maryland
Deputy Counsel Baltimore City Public Schools Baltimore, Maryland
IDEA Complaint Investigators Oregon Department of Education Salem, Oregon

August 31, 2012 in Lawyer Employment | Permalink | Comments (1)

Supreme Court of Texas Applies Value-to-the-Taker Rule in Condemnation Case

When a condemning authority exercises its eminent domain power, the Federal and (usually) State Constitutinos require that authority pay fair market value to the property owner for the property taken at the time of taking.  Fair market value is determined by the property's highest and best use of the property, and the property's current use is the presumed highest and best use.  Courts may not include in the fair market value, however the value to the condemning authority, also known as special value to owner, or value-to-the-taker.  The compensation should reflect what the landowner lost, not what the condemnor gained.  Boston Chamber of Commerce v. City of Boston, 217 U.S. 189 (1910).  This value-to-the-taker rule serves to keep an owner from receiving a windfall based on the property's special or unique value to the condemnor.

The Avinger family in Enbridge Pipelines (East Texas) L.P. v. Avinger Timber, LLC,  ___ S.W.3d ___ (No. 10-0950, August 31, 2012) (6-3 decision) owned vacant land in a gas producing area uniquely situation for a gas production plant.  In 1973, the Avinger family leased a 23-acre property to Tonkawa Gas Processing Co., a private concern, for construction of a gas plant.  There were several lease renewals on agreed terms until 2007, when the parties could n on longer agree on renewal terms.  Tonkawa then merged with Enbridge Pipelines, an entity with condemning authority.  Enbridge petitioned to condemn Avinger's interest in the property (all improvements belongs to the gas company); the commissioners awarded Avinger $45,580 at the commissioner's hearing.  Avinger appealed.

At trial Enbridge submitted an appraisal with a value for the Avinger tract being $47,940 on a highest and best use of rural residential construction.  Avinger's expert valued Avinger's interest to be $20,955,000 using a highest and best use as industrial property - gas processing plant.

Avinger's expert included in his valuation that savings to Enbridge by being able to condemn the property.  Because the lease provided that Enbridge could remove the plant from the land and restore the land to its original condition, Avinger's only interest in the property was the vacant land.  However, the expert included Enbridge's cost savings by not having to tear down and relocate the plant; a cost Enbridge saved by condemning the property.  The Court held that because the appraisal includes value-to-the-taker as part of the value of the comdenmee's value, the appraisal should have been excluded.

The Supreme Court also affirmed the appeallate court's decision to affirm the trial court's exclusion of Enbridge's appraiser.  That appraiser established the highest and best use despite the presumtion that the law presumes the property's use for the last almost 40 years would be the highest and best use.  The Court noted the property was uniquely situated for operating a gas plant due to pipelines and roads accessing and crossing the property. 

With both appraisals found wanting, the Court remanded the case back for a new trial, possibly with different appraisers, or at least new appraisal methodologies.  As a general rule, when two appraisals come in with a difference of 43,600%, the red flags should be flying high for any court. 

The dissent reportED that the majority errED by referenceing Avinger's expert report because that report was never admitted into evidence.  The dissent claims the testimony from the appraiser was adequate to affirm the lower court's decisions.  The dissent makes a good point regarding the state of the evidence, perhaps, but their view did not carry the day with the nine justices that mattered.

Craig Estlinbaum

August 31, 2012 in Constitutional Law, Interesting Cases, Remedies, Texas Law | Permalink | Comments (2)

Thursday, August 30, 2012

Rhode Island Outlaws Discrimination Against The Homeless

Rhode Island has enacted a state law which outlaw discrimination against the homeless. Among the important provisions, homeless individuals have the following rights:

• The right not to face discrimination while seeking or maintaining employment due to lack of a permanent mailing address or a mailing address that is a shelter or social service provider.

• The right to use and move freely in public spaces (sidewalks, public parks, public transportation, public buildings) in the same manner as any other person and without discrimination on the basis of housing status.

• The right to emergency medical care free from discrimination based on housing status.

• The right to vote, register to vote and receive documentation necessary to prove identity for voting without discrimination due to housing status.

• The right to protection from disclosure to law enforcement agencies without appropriate legal authority any records or information provided to homeless shelters and service providers and the right to confidentiality of personal records and information in accordance with limitations on disclosure established by the Federal Homeless Management Information Systems, the Federal Health Insurance Portability and Accountability Act and the Federal Violence Against Women Act.

• The right to a reasonable expectation of privacy of personal property to the same extent as personal property in a permanent residence.

• The right to equal treatment by all state and municipal agencies, without discrimination on the basis of housing status.

Details here

Mitchell H. Rubinstein


August 30, 2012 in Employment Discrimination | Permalink | Comments (1)

Just Released!

Baylor Law Review (Vol. 64, No. 2) has "The Art of Statutory Construction: Texas Style," by Ron Beal; "Winning the Battle and the War:  A Remedies-Centered Approach to Litigation Involving Durable Powers of Attorney," by Mark R. Caldwell, Elliott E. Burdette and Edward L. Rice; and "Exactions for the Future," by Timothy M. Mulvaney.  Florida Law Review (Vol. 64, No. 4) includes its Twombley symposium articles.  Fordham International Law Journal (Vol. 35, No. 5) includes its European Union Law special issue.  Harvard Journal of Law & Public Policy (Vol. 35, No. 3) includes the Fourth Annual Rosenkranz Debate, Resolved:  Congress acted within its authority in enacting the Patient Protection and Affordable Care Act with Laurence H. Tribe arguing the for and Paul Clement arguing the against.

Iowa Law Review (Vol. 97, no. 5) includes Symposium:  "Batson at Twenty-Five:  Perspectives on the Landmark, Reflections on the Legacy."  Loyola Journal of Public Interest Law (Vol. 13, No. 3) includes a symposium on prosecutorial immunity.

Marquette Law Review (Vol. 95, no. 3) includes Symposium,The Future of Court ADR: Mediation and Beyond."  Maryland Law Review (Vol 71, no. 4) includes Symposium, Constitutional Redemption and Constitutional Faith, with a lead article by Professor Sanford Levinson (Texas).  New York University Journal of International Law and Politics (Vol. 44, No. 3) has The 17th Annual Herbert Rubin and Justice Rose Luttan Rubin International Law Symposium:  "From Rights to Reality:  Mobilizing for Human Rights and Its Intersection with International Law."

North Carolina Law Review (Vol. 90, No. 5) includes the special issue "Social Networks and the Law."  Rutgers Law Journal (Vol. 42, No. 2) includes Symposium:  "Michael Moore's Causation and Responsibility."  Texas Law Review (Nov. 90, No. 7) includes Symposium:  "Reshaping Capital Markets & Institutions: Twenty Years On."  The University of Pennsylvania Law Review (Vol. 160, No. 7) includes Symposium on "New Dimensions in Property Theory."  Washington Law Review (Vol. 87, No. 2) includes Symposium, "The First Amendment in the Modern Age."

Craig Estlinbaum

August 30, 2012 in Law Review Articles | Permalink | Comments (0)

Wednesday, August 29, 2012

The Civil Service Law – an 1888 perspective


In 1888 William Harrison Clark wrote a book, The Civil Service Law – A defense of its principles, with corroborative evidence from the works of many eminent American statesmen. It addresses a variety of topics, some of which are still relevant in today’s public personnel law arena.
The text of this historical volume is posted on the Internet at:


Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein


August 29, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Tuesday, August 28, 2012

3rd Circuit holds that N.J. District did not violate IDEA when student’s IEP did not provide for interaction with non-disabled peers


L.G. & E.G. ex rel. E.G. v. Fair Lawn Bd. of Educ., ___F.3d____(3d Cir. June 28, 2012), is an interesting special education case. The 3rd Circuit held that the Districtdid not violate the least restrictive environment (LRE) requirement of the Individuals with Disabilities Education Act (IDEA) when it developed an individualized education plan (IEP) that placed a disabled student in a class with other students with the same disability, and did not provide for interaction with non-disabled peers. The Third Circuit panel agreed with the district court that the IDEA does not require inclusion of students with disabilities in interactions with non-disabled students if the child would not benefit from a less restrictive environment or gain from being around peers modeling appropriate behaviors. 

Mitchell H. Rubinstein

August 28, 2012 in Special Education Law | Permalink | Comments (0)

Sunday, August 26, 2012

A factual demonstration to support allegations that an individual was denied a fair hearing by an administrative tribunal is critical to rebutting the presumption of honesty and integrity accorded to administrative bodies


Dutrow v New York State Racing & Wagering Bd., 2012 NY Slip Op 05699, Appellate Division, Third Department

One of the issues in this appeal challenging a disciplinary action taken against an individual by the New York State Racing & Wagering Board was a claim that the target of a disciplinary action by the Board was deprived of a fair hearing as a result of the refusal of Board’s chair, John Sabini, to recuse himself from the proceeding.
Sabini, in addition to serving as the Board’s chair, was an unpaid officer of the Association of Racing Commissioners International, an organization devoted to maintaining a multi-jurisdictional database of licensed horse racing professionals' disciplinary histories.Sabini, however, had no prior official involvement with, and made no appearance in, this case stemming from his position with the Association. 
The Association’s president, however, had informed Sabini that a United States Senator's office had inquired about the case. The Association's president also had publicly urged the Board to assess individual’s "suitability to continue his participation in racing." The court, however, observed that [1] Sabini was not bound to follow any suggestions made by the Association or its president and [2] there was nothing in the record indicating that Sabini took any action based upon these communications or otherwise "gave the impression that [he] had prejudged the facts."
The Appellate Division said that such a “bare allegation” that these communications led to bias is insufficient absent "a factual demonstration to support the allegation . . . and proof that the [adverse] outcome flowed from it."
As the accused individual had failed, in the words of the court, "to rebut the presumption of honesty and integrity accorded to administrative bodies," the Appellate Division held “it cannot be said that he was denied a fair hearing.
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

August 26, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Saturday, August 25, 2012

How to Become an Expert Law Teacher by Understanding the Neurobiology of Learning

Scott Fruehwald recently posted on SSRN  How to Become an Expert Law Teacher by Understanding the Neurobiology of Learning .

Quite simply it is about how to teach. A summary provided by the author provides:


             Legal education is changing.  Law schools are incorporating skills classes into their curriculums,             and law teachers are integrating new techniques into their teaching.  Subjects that were never             taught before are now appearing in law school curriculums.  Now for the last step–turning law             professors into expert teachers.
             This article applies cognitive psychology and learning theory to explain how to become an             expert  teacher.  As Best Practices has asserted, “Members of a law school faculty should base             their teaching decisions on research about effective teaching, or at least hypotheses grounded             in research.”  More specifically, as Diane Halpern has stated, “It is clear that a successful             pedagogy that can serve as a basis for the enhancement of thinking will have to incorporate             ideas about the way in which learners organize knowledge and internally represent it and the             way these representations change and resist change when new information is encountered.              Despite all of the gains that cognitive psychologists have made in understanding what happens             when people learn, most teachers do not apply their knowledge of cognitive psychology.”
             This article begins by discussing the neurobiology of learning, then it uses this understanding             to move onto educational theory and finally to the details on how to be an expert law teacher.              Part II of this article addresses how humans learn (the neurobiology of learning) in order to             provide the foundation for the rest of the article.  Parts III and IV apply this learning theory to             specific methods of improving teaching and learning.  Part III examines the idea of “engaged                 teachers” and “engaged learners.”  Part IV discusses how to become a “self-regulated” and             “reflective” learner/teacher.  Finally, Part V presents the attitudes and habits of expert law             teachers, while Part VI covers what expert law teachers teach.
Readers interested in legal education may want to check it out.
Mitchell H. Rubinstein


August 25, 2012 in Law Review Articles | Permalink | Comments (2)

Friday, August 24, 2012

School Law Jobs

Job Title Employer Job Location
Special Education Attorneys Harbottle Law Group Orange County, California
Associate Attorney Semple, Farrington & Everall, P.C. Denver, Colorado
Associate Counsel Baltimore City Public Schools Baltimore, Maryland
Deputy Counsel Baltimore City Public Schools Baltimore, Maryland
IDEA Complaint Investigators Oregon Department of Education Salem, Oregon

August 24, 2012 in Lawyer Employment | Permalink | Comments (0)

California Abolishes the Release Rule

The common law release rule provides that a plaintiff’s settlement with, and release from liability of, one joint tortfeasor also releases from liability all other joint tortfeasors.

The California Supreme Court repudiated the common law release rule yesterday in Lueng v. Verdugo Hills Hospital, No. S192768 (Cal. August 23, 2012).  The unanamous court wrote:

The rationale for the common law release rule was “that there could be only one compensation for a joint wrong and since each joint tortfeasor was responsible for the whole damage, payment by any one of them satisfied plaintiff’s claim against all.”  That rationale assumes that the amount paid in settlement to a plaintiff in return for releasing one joint tortfeasor from liability always provides full compensation for all of the plaintiff’s injuries, and that therefore anything recovered by the plaintiff beyond that amount necessarily constitutes a double or excess recovery.  The assumption, however, is unjustified.  For a variety of reasons — such as the settling defendant’s limited resources or relatively minor role in causing the plaintiff’s injury — a plaintiff may be willing to release one tortfeasor for an amount far less than the total necessary to fully compensate the plaintiff for all injuries incurred.  As Dean Prosser observed in his criticism of the common law release rule:  “There is a genuine distinction between a satisfaction and a release.”

Craig Estlinbaum 

August 24, 2012 in Recent Developments, Remedies, State Law | Permalink | Comments (0)

Thursday, August 23, 2012

Employment At Will Remains Alive and Well In New York

Sometimes I bring a case to your attention because it does a nice job of summarizing the law, even though the case itself breaks no new ground. O'Neill v. New York University, ____Misc. 3d____(N.Y. Co. June 30, 2012), is such a case. The court dismissed a wrongful termination suit brought by a doctor at NYU. In so doing, the court did a nice job of summarizing the employment at will doctrine and its limited exceptions under New York law. The court also dismissed a defamation claim on the basis of opinion. For those interested in the employment at will doctrine in New York, it is certainly worth a read.

Mitchell H. Rubinstein

August 23, 2012 in Employment-At-Will & Exceptions | Permalink | Comments (0)

EIC's: Announce Your 2012-13 Symposia Here.

If you are a student law review editor in chief or symposium editor, you may announce your 2012-13 symposia, whether live or paper, or other special issues or projects in comments.   Here are those we have identified so far:

Creighton Law Review has announced its Spring 2013 symposium, "Strengthening America's Farmland," to be held March 13, 2013.  The announcement is here.

Hamline Law Journal of Public Law and Policy will present its 2012 fall symposium entitled, "Minority Rights and Majority Rule: The Arguments and Policies Behind the Proposed 2012 Minnesota Constitutional Amendments and the Danger or Myth of the Tyrannical Majority," on October 26, 2012, in St. Paul, Minnesota.

The Idaho Law Review will host a symposium on March 29, 2013 on fracking in the west.  Here is the Call for Papers announced on the Land Use Prof Blog.

Minnesota Law Review will conduct a symposium on October 26 on democracy and the Minnesota marraige amendment.  Here is the announcement.

Ohio State Law Review will host a symposium on November 16, 2012 titled "The Second Wave of Global Privacy Protection"  Here is the announcement.

University of Pennsylvania Law Review will hold a fall symposium October 18-19 titled "The Evolving Internet."  The announcement is here.

Wayne Law Review will conduct a symposium titled "Revisiting the American City:  A National Survey of Urban Legal Frameworks" on November 9, 2012 in Detroit.  Here is the announcement

Are there any others?

Craig Estlinbaum

August 23, 2012 | Permalink | Comments (0)

Wednesday, August 22, 2012

Becoming A Lawyer Blog

I just came across Becoming A Lawyer, a blog by law school publisher Wolters Kluwer-one of the giants in law school publishing. It provides helpful information to prospective law students. For example, the article I just read is about being a law student and a parent at the same time. If your a college student thinking about law school and even if your a 1 L, you may want to check this blog out.

Mitchell H. Rubinstein

August 22, 2012 in Blogs, Faculty, Blogs, General, Blogs, Legal, Colleges, Law Students | Permalink | Comments (1)

Tuesday, August 21, 2012

Is Maternity Leave Becoming Shorter and Shorter

Maternity Leave? It is More Like a Pause is an interesting July 20, 2012 article from the New York Times. The article points out that more and more executive women are taking short maternity leaves. Sometimes it is measured in weeks-not months. As the article states:

                Like many women, Mrs. Stern has followed the news that Marissa Mayer, the new chief of                 Yahoo, is pregnant with her first child, due in October. Ms. Mayer, 37, told Fortunethat her                 maternity leave would be “a few weeks long, and I’ll work throughout it.”

                With those nine words, she opened a new front in the debate over work-life balance and that                 nettlesome phrase “having it all.” The debate was already simmering in the wake of                 an article in The Atlantic, “Why Women Still Can’t Have it All,” by Anne-Marie Slaughter, a                 Princeton professor who had been director of policy planning at the State Department but                 found, as she wrote, “that juggling high-level government work with the needs of two                 teenage boys was not possible.”

 I for one do not believe that this is a good thing for society, but I understand.

Mitchell H. Rubinstein



August 21, 2012 in Current Events, Discrimination Law | Permalink | Comments (3)

Monday, August 20, 2012

4th Circuit Issues Important Decision Re: EEOC Subpoena Power


EEOC v. Ranstead, ____F.3d___(4th Cir. July 18, 2012), is an interesting  case.  It is lengthly and well reasoned and is "an everything you wanted to know" decision about the authority of the EEOC to issue investigative subpoenas. The EEOC's power is very broad. Here, the court found that the ADA and the Title VII subpoenas were timely and relevant and therefore, enforced.

Mitchell H. Rubinstein

August 20, 2012 in Employment Discrimination | Permalink | Comments (0)

Chin on Voting Rights Act and Congress's Aggregate Powers

Professor Gabriel "Jack" Chin (UC-Davis) has posted "Section 5 of the Voting Rights Act and the 'Aggregate Powers' of Congress over Elections" to SSRN.  Here is the abstract:

In NAMUDNO v. Holder, the Supreme Court suggested that Section 5 of the Voting Rights Act of 1965 was unconstitutional. The Court explained that Section 5, requiring preclearance of electoral changes in certain jurisdictions, rests on Congress’s Fifteenth Amendment enforcement power, yet does not appear congruent and proportional to recent unconstitutional discrimination as required by City of Boerne v. Flores. Further, it imposes substantial federalism costs both because it interferes with local electoral practices, and because it does not apply uniformly to all states. NAMUDNO disposed of the case on other grounds, but an appeal squarely presenting the issue is before the Court.

This article proposes that NAMUNDO overlooks the fact that the Constitution grants Congress a portfolio of powers to regulate elections. In other contexts, the Court has referred to “an aggregate of the powers of the Congress,” reading several powers together to understand the Constitution’s intended scope. Several other provisions sustain Section 5: the Elections Clause (Article I, § 4) as to federal elections, and the Guarantee Clause (Article IV, § 4) as to state elections. Both provisions appear in the legislative history, and the court has previously discussed both in support of the Act. The Elections Clause and the Guarantee Clause grant Congress direct powers, so unlike legislation based on the Reconstruction Amendments, there is no necessity to measure Section 5 against constitutional violations. In addition, although Section 5 does not apply to all states, it is “uniform” under the Court’s decisions requiring uniform exercise of federal powers.

Section 5 is a heartland exercise of the powers of Congress. The Elections Clause authorizes Congress to prevent misconduct in one state that might disadvantage other states or distort the national government. The Guarantee Clause is designed, among other things, to ensure that minorities do not wrongfully usurp lawful majorities of voters. The history of African American suffrage involved disenfranchisement of absolute majorities or of minorities so large that they could win with only a sliver of the non-African American vote. Today, in a closely divided nation, it is plausible that African Americans could provide the margin of decision in many elections. Accordingly, Congress legislated well within its powers when it enacted Section 5.

Craig Estlinbaum

August 20, 2012 in Constitutional Law, Current Affairs, Law Professors, Law Review Articles | Permalink | Comments (0)

California: 110-year sentence overturned on Eighth Amendment Grounds

Last Thursday, the California Supreme Court unanimously overturned a 110-year to life sentence against a juvenile offender on Eighth Amendment grounds.  Citing Graham v. Florida, 130 S.Ct. 2011 (2010) (holding the Eighth Amendment prohibits states from sentencing a juvenile convicted of nonhomicide offenses to life imprisonment without the possibility of parole), the court held that such a sentence against a juvenile for a nonhomicide offense violates the juvenile's right against cruel and unusual punishment.

The case is People v. Caballero, No. S190647 (Cal. Aug. 16, 2012), and may be found here.

Hat tip:  Sentencing Law and Policy

Craig Estlinbaum

August 20, 2012 in Constitutional Law, Recent Developments, State Law | Permalink | Comments (0)

Sunday, August 19, 2012

School district ordered to reimburse parents for total attorneys’ fees awarded, despite only partial success on IDEA claim

E.S. & M.S. ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., ___F.3d___(2d Cir. July 6, 2012), is an interesting case. The Second Circuit affirmed a New York federal district court’s decision not to reduce the amount of attorneys’ fees awarded to the parents to correspond to the partial tuition reimbursement awarded for an inadequate individualized education plan (IEP) designed by the Katonah-Lewisboro School District.The Second Circuit also determined that the district court did not abuse its discretion when it reduced the hourly billing rates used in the calculation of that award to be commensurate with rates used in similar IDEA cases.

Mitchell H. Rubinstein


August 19, 2012 in Special Education Law | Permalink | Comments (0)

Saturday, August 18, 2012

US DOL Releases New Family and Medical Leave Guide

The U.S. Department of Labor released a new Employee Guide to the Family and Medical Leave Act on June 27, 2012. The new guide, available online and in print, includes easy-to-follow and informative charts that map out the FMLA leave process and a summary of how coverage and eligibility are determined.
View the Slideshow<>; Listen to the Archived Webinar<>; Download the FMLA Guide<>.

Mitchell H. Rubinstein


August 18, 2012 in FMLA | Permalink | Comments (0)

Friday, August 17, 2012

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Special Education Attorneys Harbottle Law Group Orange County, California
Associate Attorney Semple, Farrington & Everall, P.C. Denver, Colorado
Associate Counsel Baltimore City Public Schools Baltimore, Maryland
Deputy Counsel Baltimore City Public Schools Baltimore, Maryland
IDEA Complaint Investigators Oregon Department of Education Salem, Oregon


August 17, 2012 in Lawyer Employment | Permalink | Comments (0)