Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, September 30, 2012

Discharge For Volunteering To Be A Kidney Donor Violates Public Policy

This is one of the most shocking employment law cases I have ever seen.  Delaney v. Signature Health Care Foundation2012 Mo. App. LEXIS 694 (Mo. Ct. App. May 22, 2012).

Missouri finds that such conduct violates public policy and is an exception to the employment at will doctrine. From a legal perspective, the case is also siginificant because it attempts to define the countours of the public policy exception.

Another recent case dealing with the public policy exception is Mitchell v. University of Kentucky, 2012 Ky. LEXIS 47 (April 26, 2012), where an employee's gun possession violated University rules, but the plaintiff alleged that firing him for that reason would violate the state’s public policy in favor of the right to bear arms, and the state supreme court agreed.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

September 30, 2012 in Employment Law | Permalink | Comments (0)

Saturday, September 29, 2012

2d Cir Upholds New York's Ban on Subversive Techniques In Special Education


Bryant v. NYS Education Dep't., ___F.3d___(2d Cir. Aug. 20, 2012).  Download Bryant

Subversive techniques are a form of punishment designed to induce appropriate behavior. They are very controversial, to say the least, and not used in most main stream programs. New York has taken the lead and outlawed them altogether. 

In this decision, the 2d Circuit upholds the New York regulation which ban it. 

Mitchell H. Rubinstein

September 29, 2012 in Special Education Law | Permalink | Comments (1)

Friday, September 28, 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
Public Finance Lawyer Drummond Woodsum Portland, Maine
School and Special Education Lawyer Drummond Woodsum Portland, Maine
Employment Lawyer Drummond Woodsum Portland, Maine
School Board Attorney Portsmouth Public Schools Portsmouth, Virginia

September 28, 2012 in Lawyer Employment | Permalink | Comments (0)

Davidoff, The Economics of Law Schools, and Adjunct Faculty

There has been much written in the blogosphere about Steven M. Davidoff's essay in the New York Times earlier this week as well as to Paul Campos's response to it, and I do not have much to add other than to say that I have just read the online comments to the Davidoff piece and I found there a substantially positive review for the value that adjunct faculty brings to the overall law school educational experience.  This seems worth observing here, this being the Adjunct Law Profs Blog and all.

Craig Estlinbaum

September 28, 2012 in Law Professors, Law Schools | Permalink | Comments (0) Law Firm Rankings

For what it is worth, recently released their annual rankings of law firm summer associate programs, here. The top 20 were as follows:

1 NR Fish & Richardson P.C. 7.967 Boston, MA
2 NR Baker & Hostetler LLP 7.958 Cleveland, OH
3 NR Cravath, Swaine & Moore LLP 7.933 New York, NY
4 NR Williams & Connolly LLP 7.812 Washington, DC
5 NR Arent Fox LLP 7.805 Washington, DC
6 NR Baker & McKenzie 7.792 Chicago, IL
7 NR Dewey & LeBoeuf LLP 7.791 New York, NY
7 NR Ropes & Gray LLP 7.791 Boston, MA
8 NR Sheppard Mullin Richter & Hampton LLP 7.766 Los Angeles, CA
9 NR Chadbourne & Parke LLP 7.747 New York, NY
10 NR Venable LLP 7.744 Washington, DC
11 NR Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 7.742 Memphis, TN
12 NR Wachtell Lipton Rosen & Katz 7.736 New York, NY
13 NR Allen & Overy LLP (US) 7.694 New York, NY
14 NR O'Melveny & Myers LLP 7.673 Los Angeles, CA
15 NR Drinker Biddle & Reath LLP 7.659 Philadelphia, PA
16 NR Gibson Dunn & Crutcher LLP 7.632 Los Angeles, CA
17 NR Haynes and Boone, LLP 7.621 Dallas, TX
18 NR Quarles & Brady LLP 7.612 Milwaukee, WI
19 NR Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 7.602 Washington, DC
20 NR Sutherland Asbill & Brennan LLP 7.587 Washington, DC

September 28, 2012 | Permalink | Comments (1)

Wednesday, September 26, 2012

What Does Tenure Mean In The Context Of Private Employment??


With respect to public employment, tenure is equated with permanent employment. It creates a property right and as a result, tenured employees cannot be disciplined without due process. But, what about private employment? Branham v. Thomas M. Cooley Law School, ____F.3d____(6th Cir. Aug. 6, 2012), address this exact issue in the context of a termination of a law professor at a private law school.

The court explains that tenure is NOT lifetime employment. Rather, it is a contractual right and its meaning is derived from the terms of the contract. As the court states:

As the district court noted, and as Branham concedes, “‘tenure’ [does not] mean[]
anything other than what [Branham’s] employment contract provides.” Further, under
Michigan law, “contracts for permanent employment are for an indefinite period of time
and are presumptively construed to provide employment at will.” Rowe v. Montgomery
Ward & Co., 473 N.W.2d 268, 271 (Mich. 1991). The term “tenure” is not defined in
Branham’s employment contract, but Branham contends that “tenure” means “lifetime
appointment” or “continuous employment.”

Mitchell H. Rubinstein

September 26, 2012 in Education Law, Employment Law | Permalink | Comments (0)

Fifth Circuit Upholds Texas Open Meetings Act

The Fifth Circuit Court of Appeals Tuesday issues a 3-0 decision upholding the Texas Open Meetings Act (TOMA) over a First Amendment free speech challenge.  The case is Asgeirsson v. Texas Attorney General, No. 11-50441 (5th Cir. Sep. 25, 2012).

TOMA provides that most government meetings be open to the public, and provides that violations are punishable by a $500 fine and up to six months in county jail.  Asgeirsson and other municipal officials challenged this penalty as violating free speech.   The appellate panel rejected the argument, finding the prohibitions against private meetings to be a permissible, content-neutral time, place or manner restriction.  The court also rejected claims that the TOMA public meeting requirement is unconstitutionally overbroad or vague. 

More at Grits For Breakfast and Dallas Morning News Investigates Blog.

Craig Estlinbaum

September 26, 2012 in Constitutional Law, Current Events, First Amendment | Permalink | Comments (0)

Tuesday, September 25, 2012

Some Hospitals are Going Without Malpractice Insurance

This is a scarey thought. Some New York hospitals are going without malpractice insurance. While some of these institutions are saving money on their own to pay out future claims; others are not. A New York Times article about this practice is available here.

Mitchell H. Rubinstein

September 25, 2012 in New York Law | Permalink | Comments (0)

Monday, September 24, 2012

5th Circuit Holds District Did Not Violate IDEA By Removing Student From Regular Education Class


J.H. v. Fort Bend Indep. Sch. Dist., No. 11-20718 (5th Cir. July 26, 2012), is an interesting special education decision. The 5th Circuit upheld a district court’s determination that a Texas district complied with the Individuals with Disabilities Education Act when it placed a disabled student in special education science and social studies classes, after he struggled in general education classes for these subjects. J.H.’s parents objected to the placement, but his teachers and independent evaluators testified that J.H. was unable to grasp the concepts being taught in general education classes, leading the panel to conclude that he did not gain an educational benefit from the classes.

Mitchell H. Rubinstein


September 24, 2012 in Special Education Law | Permalink | Comments (0)

Sunday, September 23, 2012

9th Circuit Holds District Violated IDEA By Not Providing IEP Notwithstanding Parents Lack of Cooperation


Anchorage Sch. Dist. v. M.P., No. 09-189 (9th Cir. July 19, 2012), is an interesting IDEA case. The 9th Circuit held that a school district failed to provide a special education student with a free appropriate public education as required by the Individuals with Disabilities Education Act (IDEA), when the district failed to update the student’s individualized educational plan annually, concluding that the Parents’ alleged lack of cooperation did not excuse the district from its procedural duty to do so.

Mitchell H. Rubinstein

September 23, 2012 in Special Education Law | Permalink | Comments (0)

Saturday, September 22, 2012

FMLA Widget

Employment Law Advisors developed an interesting FMLA widget which is free. It is designed to determine FMLA eligiblity and you can check it out here. This widget has its place, but I would not recommend that anyone rely on it. It certainly is no substitute for legal advise.

Mitchell H. Rubinstein


September 22, 2012 | Permalink | Comments (0)

FMLA Widget

Employment Law Advisors developed an interesting FMLA widget which is free. It is designed to determine FMLA eligiblity and you can check it out here. This widget has its place, but I would not recommend that anyone rely on it. It certainly is no substitute for legal advise.

Mitchell H. Rubinstein


September 22, 2012 | Permalink | Comments (0)

Friday, September 21, 2012

Just Released!

Boston University Law Review has a symposium titled, "Originalism and Living Constitutionalism: A Symposium on Jack Balkin's Living Originalism and David Strauss's The Living Constitution" in Volume 92, No. 4.  Fordam Urban Law Journal has its Cooper-Walsh Colloquium titled, "Big Problems, Small Government: Assessing the Recent Financial Crisis' Impact on Municipalities" in Volume XXXIX, No. 3.  The University of Toledo Law Review's "Public Sector Labor Law at the Crossroads Symposium" in its Volume 43, No. 3

DePaul Law Review's 17th Annual Clifford Symposium on Tort Law and Soclal Policy, titled "Festschrift for Robert Rabin" appears in its Volume 61, No. 2.  Hastings Law Journal has "Symposium on Law & Policy of the Developing Brain: Neuroscience from Womb to Death" in Volume 63, No 6.  Emory Law Journal's 2011 Randolph W. Thrower Symposium, "Judging Politics: Judges as Political Actors, Candidates and Arbiters of the Political" is included in its Volume 61, No. 4.

Stanford Law & Policy Review has "Symposium: Adult Entertainment" in Volume 23, No. 1.  Texas Tech Law Review has "Symposium: Environmental Impacts of Oil and Gas" in its Volume 44, No. 4.  University of Illinois Law Review has "Symposium: Jack Balkin's Constitutional Text and Principle" in Volume 2012, No. 3.

Craig Estlinbaum

September 21, 2012 in Law Review Articles | Permalink | Comments (0)

Florida: Facebook Friendship Leads to Judicial Disqualification

Earlier this month, a Florida appellate court held that a defendant's motion to disqualify a trial judge was legally sufficient to require disqualification where the trial judge was a Facebook friend with the prosecutor assigned to the case.

In Domville v. State of Florida, No. 4D12-556, 2012 WL 3826764 (Fla.Dist.Ct.App. Sep. 5, 2012), the defendant filed the motion to disqualify the judge alleging that the judge and prosecutor assigned to the case were Facebook friends.  The trial judge denied to motion as legally insufficient.

The appellate court relied upon a 2009 Florida Judicial Ethics Advisory Committee opinion that concluded that the Florida Code of Judicial Conduct precluded a judge from both adding attorneys that appeared in their courts as friends, and allowing attorneys so appearing to add the judge as a friend.  The Committee opined that such conduct violated Florida Code of Judicial Conduct, Canon 2B which prohibits judges from conveying or permitting others to convey, "the impression that they are in a special position to influence the judge."  The Committee also concluded that a judge that Facebook friends an attorney "reasonably conveys to others" the impression that the attorney is in fact in a special position to influence the judge.

The appeals court quashed the trial court's order denying disqualification as a matter of law and returned the case to the trial court for further proceedings.

To date, Massachusetts and Oklahoma judicial ethics committees have joined Florida in taking a restrictive approach to judges using social media.  The Massachusetts Committee's opinion on the subject goes so far as to state that a judge may friend an attorney on social media only when that judge would recuse herself if and when the friended attorney appeared before her.

Even in states where judicial ethics committees have taken a permissive approach to judicial use of social media, judges may face disqualification or recusal motions in similar circumstances.  The law in this area is very new and uncertain as judges, attorneys and ethics committees develop policies and implement guidelines for judicial use of social media.

Craig Estlinbaum

September 21, 2012 in Ethics, Interesting Cases, Judges | Permalink | Comments (1)

Thursday, September 20, 2012

2d Circuit Narrowly Construes First Amendment


Kiehle v. County of Courtland, ____F.3d____(2d Cir. July 2, 2012), Download Kiehle (2) is an important case and I am amazed that the court chose not to offically publish the decision. In this case, the Second Circuit affirmed the dismissal of a case where a Department of Social Services social worker was--by the employer's admission--fired for truthfully testifying in family court. The court reasoned that this was part of his job even though he was not testifying at the request of his employer. In fact, his testimony was opposite of the employer's position.  I understand that the attorney handling is petitioning for reargument/en banc consideration.  This is just another example how Garcetti has all but gutted First Amendment protections.

Mitchell H. Rubinstein

September 20, 2012 in Employment Law, First Amendment | Permalink | Comments (0)

Wednesday, September 19, 2012

4th Circuit Holds That Awarding Off Campus Religious Instruction Credit Is Constitutional


The case is Moss v. Spartanburg Cnty. Sch. Dist. Seven, ___F.3d____ (4th Cir. Jun. 28, 2012). The court held that a South Carolina school district policy allowing students to earn academic credit for off-campus religious instruction does not violate the First Amendment’s Establishment Clause. After concluding that only one of the three plaintiffs had standing, the panel determined the school district’s policy survived the three-part test laid out in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).. The circuit court held that there was no religious entanglement problem as the school district’s policy relied exclusively on the provision of off-campus religious instruction by nongovernmental educators and passively accommodated the genuine and independent choices of parents and students to pursue such instruction.

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

Mitchell H. Rubinstein

September 19, 2012 in Constitutional Law, Law Review Ideas | Permalink | Comments (0)

Tuesday, September 18, 2012

So You Want To Be An Adjunct Professor

Best Colleges Online, a commercial site, recently published 25 facts about college adjunct professors, here. The most startling statistic is that adjuncts make up 73%, yest 73% of the instructional workforce in colleges today. I know it is high, but it is hard for me to believe that the number is that high. In any event, for those interested in adjuncting, you may want to take a look at this article.

Mitchell H. Rubinstein

September 18, 2012 in Adjunct Information in General | Permalink | Comments (0)

Monday, September 17, 2012

Right To Control Test Is Applicable In Unemployment Cases

Matter of Holleran v. Commissioner of Labor, ___A.D 3d___ (3d Dept. Aug. 2, 2012), is an interesting case. The court applies the right to control test and concludes that the individuals in question were independent contractors. A finding that someone is an independent contractor is relatively rare. The court described the applicable standard as follows:

            It is well settled that the existence of an employment relationship turns upon the control             exercised by the employer over the results produced or the means used to obtain those results,             with control over the latter being the more important factor to consider (see Matter of             Interlandi [Cremosa Food Co., LLC.—Commissioner of Labor], 70 AD3d 1150, 1150             [2010]; Matter of Rodriquez [2020 Video Voice Data, Ltd.—Commissioner of Labor], 58 AD3d             929, 929 [2009], lv denied 13 NY3d 702 [2009]; Matter of Kelly v Frank Gallo,  Inc.   —        Commissioner of Labor], 28 AD3d 1044, 1045 [2006], lv dismissed 7 NY3d 844 [2006]). Upon             reviewing the record here, we find that the requisite control is lacking. Significantly, it was             claimant's responsibility to contact the customer directly to schedule the work after receiving             an e-mailed work order from Jez, the only requirement being that he do so within 48 hours.             Moreover, claimant was free to decline a work assignment, in which case Jez would contact             another installer, and the rate of pay was a negotiated amount which varied among installers.             Although Jez provided claimant with limited training during the first week, it did not do so             thereafter, and claimant performed the work based upon instructions contained in the manual             that came with the equipment.

            Notably, Jez did not inspect claimant's work or require him to work a particular schedule or a             specified number of hours. If there was a problem with claimant's work that necessitated             correction by another installer, claimant was responsible for reimbursing Jez for that installer's             services. In addition, Jez did not withhold taxes from claimant's paycheck, reimburse him for             expenses, or provide him with tools, transportation or any type of fringe benefits. Furthermore,             in accordance with the terms of the agreement designating him an independent contractor,             claimant was permitted to work for competing companies. In view of the foregoing, we conclude             that Jez did not exercise control over important aspects of claimant's work so as to establish             the existence of an employment relationship (see Matter of Best [Lusignan—Commissioner of             Labor], 95 AD3d 1536, 1537-1538 [2012]; Matter of Rosen [Vidicom, Inc.—Commissioner of             Labor], 73 AD3d 1352, 1353 [2010], lv denied 15 NY3d 706 [2010]; compare Matter of Jimenez             [C & I Assocs., Inc.—Commissioner of Labor], 74 AD3d 1587, 1589 [2010]). Consequently, the             Board's decisions must be reversed.


September 17, 2012 in Employment Law | Permalink | Comments (0)

Sunday, September 16, 2012

Employee Wellness Programs

More and more employers are adopting Employee Wellness Programs. In my book, that is a win win for all. An interesting wellness infographic that was we just published, is titled 'The State of Corporate Wellness Programs in America" and is full of interesting statistics that researchers may find helpful. It is available here.

Mitchell H. Rubinstein

September 16, 2012 in Current Events, Misc., Non-Legal | Permalink | Comments (0)

Call For Papers Central States Law Schools Association

The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio.  We invite law faculty from across the country to submit proposals to present papers or works in progress.

 The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines.  The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment.  More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work.  

        Additional details about this important conference can be found by downloading  Download CSLSA 2012 Conference Announcement Blog Posting

Mitchell H. Rubinstein

September 16, 2012 in Law Professors, Law Review Articles | Permalink | Comments (0)