Thursday, August 16, 2012
On July 17, 2012, the NY Times ran an interesting story about the future of Unions, available here. The point of the article is that Unions need to change and that the Union of the future may be different from the Union of today. As the article states:
The future labor movement may have to give up organizing work site by work site. Its biggest political fight in the last few years — pushing a law to make it easier to organize a workplace — may be irrelevant. And fighting to create new barriers to foreign competition is probably a lost cause. Instead of negotiating for their members only, unions might do better pulling for better wages and conditions for all workers.
Some scholars, like the economist Richard B. Freeman of the National Bureau of Economic Research, suggest the labor movement could take a page from the AARP’s playbook and become a lobbying group. German-like worker councils could discuss workplace issues with management, without negotiating over pay.
Maybe unions don’t have to entirely give up collective bargaining but broaden it. A model might be the alliance between the A.F.L.-C.I.O. and the Domestic Workers Alliance of New York City to push for a bill of rights for nonunionized nannies and maids.
In any event, 80 years from now, labor organizations will probably look as different as our current unions look when compared with the guilds of 80 years ago. Today’s strongest unions — of autoworkers and airline pilots — could easily be the weakest, decimated by international competition. Unions may well be strongest in hospitals, hotels and other businesses not exposed to international trade.
Mitchell H. Rubinstein
According to the Nano and Other Emerging Chemical Technologies Blog, the Pace Environmental Law Review has issued a call for papers for an upcoming special issue on "the development and regulation of nanotechnology and biotechnology." Go here for more information.
Wednesday, August 15, 2012
Professors Rostron and Levit recently updated their law review submission SSRN article which contains two useful charts. The first covers:
Methods for submitting an article (such as by e-mail, ExpressO, or regular mail);
· Any special formatting requirements;
· How to request an expedited review; and
· How to withdraw an article after it has been accepted for publication elsewhere.
The second covers ranking information from US News and World Reports and Washington and Lee ranking study.
To be honest, I never found this information helpful as I just submitted
through Expresso and then chose the review based upon US News ranking.
I can see how some may find this info useful, however, Note, only a law school's main line law review is included.
202 law schools are included. It can be downloaded at no charge here.
Mitchell H. Rubinstein
Robin Charlow (Hofstra) has posted "Batson 'Blame' and its Implications for Equal Protection" on SSRN. Here is the abstract:
Twenty-five years ago Batson v. Kentucky held that equal protection is violated when attorneys exercise racially discriminatory peremptory jury challenges and supply pretextual explanations for their strikes. Findings of Batson violations are tantamount to rulings that attorneys have discriminated and lied. Not only do Batson findings potentially subject violators to sanction under standards of professional ethics, but they also amount to imputations of personal fault or “blame” for socially undesirable conduct. This article explores, from both practical and theoretical perspectives, the problem of the attribution of personal fault to attorneys that is inherent in a finding of a Batson violation. On the practical side, although the blaming effect seems inevitable, it may prove counterproductive to Batson‘s goal of eliminating racial discrimination in jury selection. In terms of constitutional theory, Batson enforces the Constitution’s equal protection guarantee, and blame appears to be an inexorable consequence of either of the two dominant theories of equal protection analysis: “anticlassification” theory, used by the Supreme Court’s majority, and “antisubordination” theory, urged by Supreme Court dissenters and many academics. Assuming blame is unavoidable under either current theory, and yet that it interferes with rooting out discrimination, this Essay explores a third possible alternative view of equal protection — “antibalkanization” — which might resolve the problem of discriminatory peremptory strikes without necessarily implicating personal blame.
The Iowa Law Review has accepted the paper for publication.
Tuesday, August 14, 2012
Abolish the Law Reviews! is an interesting July 5, 2012 article from The Atlantic by Walter Olson. He makes the familar arguments that law schools take too much time to publish and serve only the needs of the faculty. Olson favors online scholarship, such as blog posts instead.
While Olson and others have somewhat of a point, I would not go so far as to abolish the law reviews. They serve a purpose at law school. It is called training law students how to write. More fundamentally, what is wrong with law reviews today is that they focus on legal theory. Law School should teach law students how to practice law.
Unfortunately, look at any law school today. You will see that there are very few professors hired in the last 10 years or so that has any material amount of practice experience. Law schools are too busy chasing the prestige of an Ivy league Phd (in addition the the required JD). Because so few professors have practical experience, they often write about things that no body cares about.
The solution is to ONLY hire professors with significant experience and ONLY hire professors who can teach. Publications should be related to practice. Law schools can save money and time by only publishing articles online. Many law schools do that now, but not for their main stream law review.
Wake up law schools, we are in the 21st Century! ABA are you listening. You need to wake up and change the ABA Standards NOW.
Mitchell H. Rubinstein
Monday, August 13, 2012
JD Supra ran an interesting story about an EEOC initiated investigation of a coffee chain in Boston which apparently shows a preference for hiring attractive woman. Is that sex discrimination? The answer is probably not because Title VII only protects against sex discrimination which is gender based. Thus, other woman, who are less attractive, would be in the same boat as men. Men and woman and not treated differently because of their gender. See DeCintio v. Westchester Medical Center (2d Cir.).
Now, there may be a case if the woman had to be attactive, but the men didn't. But then again, how do you judge what is meant by being attractive.
Law review commentary on this issue would be welcome.
Mitchell H. Rubinstein
American University Law Review has released Volume 61, No. 5, which includes a symposium on "War, Terror, and the Federal Courts, Ten Years After 9/11."
Cardozo Law Review has released Volume 33, No. 5 - a symposium issue titled, "Comments on Michael Rosenfield's The Identity of the Constitutional Subject."
New England Law Review has released a paper symposium titled "Convicting the Innocent" in its Volume 46, No. 4.
Notre Dame Law Review has released its symposium issue titled "Federal Courts, Practice & Procedure" in Volume 87, No. 4.
Southern California Law Review's Volume 85, No. 3 includes their "100 Years of Standard Oil Antitrust Symposium."
The University of Kansas Law Review has published a symposium issue titled "Perspectives on the Current State of Arbitration Law" in its Volume 60, No. 4.
The University of Louisville Law Review's symposium "On Federal Budget & Debt Reduction" is included in its Volume 50, No. 4.
Sunday, August 12, 2012
An August 8, 2012 article from the National Law Journal, here, indicates that the ABA and other bar associations are studying legal education.
Reform is badly needed. Law schools are run by professors who, for the most part, are not competent to practice law. Yes, they are bright and have those ivory degrees. But, how many of them ever represented a client, performed a deposition or answered a complaint?? Sadly, law schools today are not concerned with hiring professors with experience. They are more insterested in having their faculty produce law review articles that no one reads.
Think I am joking. Pick a law school and pick a professor hired within the last 10 days. Do a lexis or westlaw search and take a look at how many cases they made an appearance in. Amicus briefs do not count. Amicus briefs for professors are better than nothing, but just barely. I will give you one better. Take a look at the faculty in your school. How many of the professors are not even admitted to the bar in the state where the law school is located? States like NJ, where law professors (but not college professors) can waive in do not count.
Mitchell H. Rubinstein
Duhl, Over the Borderline — A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability in Academic Life
Professor Greg Duhl just posted an interesting article on SSRN entitled "Over the Borderline — A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability in Academic Life" The abstract provides:
This essay is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability in Academic Life, Professor Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this essay, I place Price’s work in a legal context, suggesting why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide a framework for them to overcome barriers limiting their equal participation in academic life.
I wonder whether the book reviewed was inspired by the film "A Beautiful Mind." In any event, readers interested in legal education, the ADA and mental disability may want to check this article out.
Mitchell H. Rubinstein
Saturday, August 11, 2012
Friday, August 10, 2012
|School Law Jobs|
|Job Title||Employer||Job Location|
|Associate General Counsel||Sacramento County Office of Education||Rancho Cordova, California|
|Special Education Attorneys||Harbottle Law Group||Orange County, California|
|Assistant General Counsel||Atlanta Public Schools||Atlanta, G|
Thursday, August 9, 2012
Two important papers on Due Process and the Takings Clause to the United States Constitution appeared on SSRN yesterday.
In "Property's Constitution" (California Law Review, forthcoming), Professor James Y. Stern (Virginia) considers property's meaning under the Bill of Rights and observes that the Court has failed to clearly distinguish property rights, protected by the Takings Clause, from legal rights, protected by Due Process. Here is the abstract, which further summarizes the problem and his solution:
Long-standing disagreements over the meaning of property as a matter of legal theory present a special problem in constitutional law. The Due Process and Takings Clauses set forth individual rights that can only be asserted if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property and in some instances reach opposite conclusions about its meaning. Most notably, government benefits are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do not attempt to explain.
This Article offers a way to bring order to the confused treatment of property in constitutional law. It shows how a single definition of property can be adopted for all of the major constitutional property doctrines without the calamitous results that many seem to fear. It begins by arguing that property is best understood as the right to have some measure of legal control over the way a particular item is used, control that comes at the expense of all other people. It then argues that legal rights are a kind of private property and that, while courts and commentators are correct that legal entitlements to government benefits — so-called “new property” — should receive constitutional protection, they mistakenly believe the property at issue is the good that a recipient has a right to receive, rather than the legal right to receive it. The Article proceeds to show that legal rights are the only kind of things whose existence government can altogether extinguish and therefore that ownership of legal rights is the only kind of property right government can terminate without conferring equivalent property rights on others. The Article further argues that while due process protection should be read to apply whenever a person is denied an asserted property right (a deprivation), takings protection should only come into play when property rights are transferred from one party to another (a taking). Combining these observations, the Article concludes that termination not only of “new property” rights but also of old-fashioned in personam legal rights should trigger due process but not takings protection. This analysis provides theoretical coherence to constitutional doctrine that has thus far been lacking and it sheds light on the essential characteristics of property rights as a general matter, helping theoreticians understand more clearly the core structures of property law.
In "Irregular Kelo Takings: A Potential Response to Natural Disasters" (The Urban Lawyer, forthcoming), Professor Fredrick E. Vars (Alabama) considers whether or not communities may re-draw urban lots following natural disasters to increase property tax revenue after Kelo v. City of New London. The abstract:
Tornadoes, hurricanes, floods, mudslides, earthquakes, tsunamis, volcanoes, and fires devastate property. Prior studies have shown that rectangular urban lots are much more valuable than irregular ones. Local government faced with an essentially blank slate after a natural disaster might therefore redraw boundary lines to eliminate irregular parcels. This essay assesses that strategy and concludes: (1) the premium for rectangular lots is smaller than previously estimated, but still significant; (2) the controversial United States Supreme Court decision in Kelo leaves open the door to squaring lots as a means to increase property tax revenue; and (3) post-Kelo legislation in many states inadvertently closes the door on this perhaps sensible strategy.
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:
Are there any others?
UPDATE (8/10/12): 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.
Ohio State Law Review will host a symposium on November 16, 2012 titled "The Second Wave of Global Privacy Protection" Here is the announcement.
Wednesday, August 8, 2012
I just read Paul Campos, The Crisis of the American Law School, ___U. Mich. J. L. Reform ___ (Oct. 2012). Readers interested in legal education will want to check this article out. The central premise of this article is that it does not make economic sense for most law students to attend law school, particularly in light of the shrinking percentage of the economy which has been devoted to legal services. The article is full of economic statistics and interestingly, calls for law schools to utilize more adjunct law professors because of the lower cost. The abstract provides:
The economist Herbert Stein once remarked that if something cannot go on forever, it will stop. Over the past four decades the cost of legal education in America has seemed to belie this aphorism: it has gone up relentlessly. Private law school tuition increased by a factor of four in real, inflation-adjusted terms between 1971 and 2011, while resident tuition at public law schools has nearly quadrupled in real terms over just the past two decades. Meanwhile for more than 30 years now the percentage of the American economy devoted to legal services has been shrinking. In 1978 the legal sector accounted for 2.01% of the nation’s GDP: by 2009 that figure had shrunk to 1.37% -- a 32% decrease. These two trends are not mutually sustainable. If the cost of becoming a lawyer continues to rise while the economic advantage conferred by a law degree continues to fall then eventually both the market for new lawyers and for admission to law school will crash. In the early years of the 21st century, this abstract theoretical observation has begun to be confirmed by concrete events. The ongoing contraction in the employment market for new lawyers has combined with the continuing increase in the cost of legal education to produce what has begun to be recognized as a genuine crisis for both law schools and the legal profession.
Mitchell H. Rubinstein
Albany Law Review (Vol. 75, Issue 3) has their special issue titled "Miscarraiges of Justice," with 8 essays, 4 personal reflections and 2 comments.
Boston University Law Review (Vol. 92, No. 3) has a symposium titled "A Conference on Restitution and Unjust Enrichment." Topics include "Issues of Restitution Doctrine," "The Availability and Justification of Property-Based Remedies in Restitution," "Common Law Restitution and Ponzi Schemes," "Defenses and Objections to Liability in Restitution," and "Theoretical Exploration of Unjust Enrichment." BULR held the conference, co-sponsored by the American Law Institute, in September 2011. As a remedies/damages instructor, kudos to BULR for a treasure trove of new ideas on this subject!
Georgia Law Review (Vol 46, No. 3) has their Fall, 2011 symposium, "Civil Rights or Civil Wants." GLR carries online content on their website, however, this issue is not there yet. The symposium included presentations in education, immigration, informational privacy and international law.
The Ohio State Journal of Criminal Law (Vol. 9, No. 2) published its symposium, "Punishment and Culpability" this month.
University of Miami Law Review (Vol. 66, No. 4) has its annual Eleventh Circuit Issue.
University of Pennsylvania Law Review (Vol. 160, No. 6) includes the symposium "Sentencing Law: Rhetoric and Reality." Its Vol. 160, No. 7 includes a symposium on property law & theory.
Washington and Lee Law Review (Vol. 69, No. 2) has published its Regulation in the Fringe Economy Symposium.
Washington University Journal of Law & Policy (Vol. 39) has published its symposium on New Directions in Negotiation and ADR.
Contrats to our own contributing editor, Judge Craig Estlinbaum, who just published an important law review essay, Craig Estlinbaum, Social Networking and Judicial Ethics, 2 St. Mary's J. on Leg Mal & Ethics 2 (2012).
Many of us may not realize it, but posting on social networking sites and even blogging raises important ethical issues for judges. As Judge Estlinbaum points out, the danger is that a social posting by a judge may be misinterpreted. This is one of the few articles that discusses this important topic. There are only a few ethical opinions on this issue which are discussed in this essay. Judge Estlinbaum recommends that because of the pausity of authority, that Judges use "extraordinary caution" and he calls for state ethic committees to draft guidelines. This essay is full of useful statistics and information about social networking which may also be of use to researchers who are researching related topics.
The abstract provides:
Social network sites (SNSs) such as Facebook, LinkedIn, and Twitter have become an increasingly ever-present feature in American life since first appearing in the late 1990s. SNSs now impact virtually all parts of daily life, and the judiciary is not immune to this effect. Recent statistics show that approximately 40% of judges nationwide utilize SNSs for personal, professional, and electoral purposes.
Social media, like any public communication form, presents special ethical challenges for judges. In recent years, judicial ethics committees in various states have weighed in on these questions and have not shown any clear consensus. However, it is generally agreed that judges using SNSs must pay particular attention to how that use relates to the judge’s particular ethical obligations regarding relationships and communication with others. In general terms, social media participation by judges raises important ethical questions that directly impact how courts are perceived in the emerging media age.
Mitchell H. Rubinstein
Tuesday, August 7, 2012
You might remember Lynn Stewart. She was the attorney for the convicted Sheikh Omar Ahmad Ali Abdel Rahman. Her conviction stemmed from her repeated violations of the "Special Administrative Measures," or "SAMs," to which she agreed to be, and was, subject as a member of Abdel Rahman's legal team while he was incarcerated. Stewart executed various affirmations, under penalty of perjury, in which she agreed to abide by the terms of the SAMs, among them that she would not "use [her] meetings, correspondence or phone calls with Abdel 5 Rahman to pass messages between third parties.
Well, after her intial partial victory on procedural grounds, she was quoted in the media as stating that she would do it again. And guess what, she got a longer sentence. In this lengthly decision, the 2d Circuit rejects her First Amendment defense. U.S. v. Stewart, ___F.3d___(2d Cir. June 28, 2012)
Mitchell H. Rubinstein
Monday, August 6, 2012
To Teach or Not to Teach is an interesting August 1, 2012 article from the ABA Journal about becoming an adjunct law professor. It implies that the market for adjuncts is becoming even more competitive. The article also accurately describes the terrible pay that adjuncts make and that most adjuncts do not teach for the money. They teach for intangible benefits. As one of the commentators notes at the end of the article, some schools undoubtably abuse adjuncts. They use them instead of FT faculty, instead of being, an adjunct to the faculty.
Mitchell H. Rubinstein
Sunday, August 5, 2012
Mayor Bloomberg Flirts With Violating The Taylor Law is an interesting article from New York Magazine. Blommie is quoted as saying:
"I don't understand why the police officers across this country don't stand up collectively and say 'We're going to go on strike. We're not going to protect you unless you, the public, through your legislature, do what's required to keep us safe.' After all, police officers want to go home to their families, and we're doing everything we can to make their job more difficult but more importantly more dangerous."
It is of course, a violation of the Taylor Law for a public employee to call for a strike. The Mayor is a public employee. So did the Mayor violate the Taylor Law? That is certainly a debateable question. Interestingly, he is calling for a general type of strike which would effect all police departments.
Mitchell H. Rubinstein
Hat Tip: Workplace Prof Blog