Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, October 31, 2013

LSAT Takers Numbers Drop Again

The number of October LSAT takers has declined for the fourth straight year.  The numbers:

The number of October 2013 LSATs administered was 33,673, down 10.9% from October 2012 and down about 45% from the October 2009 LSATs administered.

The cumulative total of LSATs administered is 57,670, compared with 63,003 at this point last year, 71,981 in 2011, 87,318 in 2010, and 93,341 in 2009.

Brian Leiter at Brian Leiter's Law School Reports has some analysis as does Paul Caron at TaxProf Blog.  Professor Leiter specifically suggests law school will rely more on adjuncts and visiting professors as applications decline as a austerity measure. 

Craig Estlinbaum

October 31, 2013 in Law Schools, News | Permalink | Comments (0)

Ohio State Law Review: Tort Law Symposium

The Ohio State Law Journal will host its fall symposium, "Torts and Civil Rights Law: Migration and Conflict," on November 15, 2013.  From the journal's symposium website:

This symposium will explore the theoretical and doctrinal affinities and clashes between tort and anti-discrimination law, while fostering dialogue between tort and anti-discrimination scholars. Symposium participants will explore whether the connections are strong enough to justify robust use of tort principles in anti- discrimination analysis and whether anti-discrimination law should be interpreted through a torts lens. They also will discuss whether tort law should selectively adopt anti-discrimination norms and analysis.

Here is a list of speakers and topics and here is the (free) registration infomration. 

Craig Estlinbaum


October 31, 2013 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Oklahoma Law Review: Symposium

On November 15, the Oklahoma Law Review will host a half-day symposium on law enforcement access to third party records.   This strikes me as a particularly relevant and timely topic; attorneys or other interested persons in the Central Oklahoma area during this time might consider this event to learn more on the subject.

Craig Estlinbaum

October 31, 2013 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Tuesday, October 29, 2013

Georgia Law Review: New York Times v. Sullivan at 50

The Georgia Law Review will host its Fall 2013, symposium, "The Press and the Constitution 50 Years after New York Times v. Sullivan," on November 6, 2013, at the campus.  The keynote speaker is Supreme Court Justice John Paul Stevens.  The agenda and registration information is here.

Craig Estlinbaum

October 29, 2013 in Conferences, Faculty, Constitutional Law | Permalink | Comments (0)

Thursday, October 24, 2013

Overtime For Domestic Workers In California

California recently enacted legislation providing that domestic workers are entitled to over-time. More details on workplace prof blog.

Mitchell H. Rubinstein

October 24, 2013 in Employment Law | Permalink | Comments (0)

Cohen on State v. Miller

Writing at The Atlantic, Andrew Cohen of the Brennan Center comments on the recent New Jersey Supreme Court case State v. Miller, A-35-11 (N.J., October 2, 2013).  His essay, "How Much Does a Public Defender Need to Know About a Client?" is here.

Craig Estlinbaum

October 24, 2013 in Constitutional Law, Criminal Law, Due Process, Ethics | Permalink | Comments (0)

Wednesday, October 23, 2013

Minnesota Law Review: The Future of Organized Labor

The Minnesota Law Review will host a one day sympsium, "The Future of Organized Labor:  Labor Law in the 21st Century" on October 25 in Mondale Hall on the law school campus in Minneapolis.  The keynote speakers are Craig Becker, general counsel for the AFL-CIO and G. Roger King of Jones Day in Columbus, Ohio. 

According to the law review's website, the symposium is at capacity and registration is closed.  Interested persons, however, may want to contact the law review for the symposium issue when it is released.

Craig Estlinbaum

October 23, 2013 in Conferences, Faculty, Labor Law, Law Review Articles | Permalink | Comments (0)

Tuesday, October 22, 2013

Wisconsin Law Review: Food Systems Symposium

Wisconsin Law Review will host its fall 2013 symposium, "Safety and Sustainability in the Era of Food Systems: Reaching a More Integrated Approach," on October 30-31 at the Madison Concourse Hotel in Madison, Wisconsin.

Craig Estlinbaum


October 22, 2013 | Permalink | Comments (0)

Monday, October 21, 2013

Case Western Reserve Law Review: Same Sex Marriage Symposium

On October 25, the Case Western Reserve Law Review will host their fall 2013 symposium, "The Supreme Court’s Treatment of Same-Sex Marriage in United States v. Windsor Hollingsworth v. Perry: Analysis and Implications."  Here is the Agenda (pdf).

Craig Estlinbaum

October 21, 2013 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Sunday, October 20, 2013

Same-sex couples covered by FMLA

The NYMUNIBLOG Editorial Team reports that the U.S. Department of Labor has expanded FMLA leave to cover same-sex couples.
The team reports that “When the United States v. Windsor decision—finding a key provision of the Defense of Marriage Act (DOMA) unconstitutional—was handed down by the Supreme Court of the United States earlier this summer, a Harris Beach Legal Alert noted that the ruling would extend various federal benefits to same-sex married couples in states that allow gay marriage. Specifically with regard to the Family and Medical Leave Act (FMLA), we surmised that a person with a same-sex spouse will be entitled to FMLA leave if all other conditions are met.” 
The full text of the posting is at
The Supreme Court decision in United States v Windsor is posted on the Internet at:

As NYPPL noted on August 29, 2013, the Washington Post reported that the Internal Revenue Service announced that it will treat same-sex marriages the same as it does heterosexual ones. The text of the Post's report is on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

October 20, 2013 in FMLA | Permalink | Comments (0)

Friday, October 18, 2013

New In Print: Law Review Review

Cornell Law Review's September 2013, issue inludes a Law, Innovation and Entrepreneurship symposium with articles by Brian Broughman (Indiana) & Jesse M. Fried (Harvard), John F. Duffy (Virginia), Michael Klausner (Stanford) & Stephen Venuto, Oscar Liivak (Cornell) & Eduardo M. Peñalver (Chicago), Kate Litvak (Northwestern), D. Gordon Smith (Brigham Young) & Darian M. Ibrahim (Wisconsin), and Robert B. Thompson (Georgetown) & Donald C. Langevoort (Georgetown).  The issue is Volume 98, Number 6, with the articles accessible via this current issue link.

The Summer 2013 DePaul Law Journal includes "A Tale of Two Ginsburgs: Traditional Contours in Eldred  and Golan," by Elizabeth Townsend Gard (Tulane); and "Religious Tolerance in Contemporary America," by David E. Campbell (Notre Dame, Politicial Science).

The University of Illinois Law Review, Volume 103, Number 4 includes "Parent Civil Unions: Rethinking the Nature of Family" by Michele Goodwin (Minnesota) & Naomi Duke (Minnesota, Pediatrics); "The New Public Domain," Joseph P. Liu (Boston College); Disentangling Conscience and Religion; by Nathan S. Chapman (Georgia); and Transparent Predictions" by Tal Z. Zarsky (NYU).

American University Law Review's Volume 62, Number 6 includes "Inequitable Conduct in Retrospective: Understanding Unclean Hands in Patent Remedies," by T. Leigh Anennson & Gideon Mark; "Rebalancing Public and Private in the Law of Mortgage Transfer," by John Patrick Hunt, Richard Stanton, & Nancy Wallace; and "It Wasn't an Accident: The Tribal Sovereign Immunity Story," by William Wood.

The Summer 2013, Arizona State Law Review includes "The Future of Clean Elections," by David Gartner (Arizona State); "Foreclosure Mediation in Arizona," by Art Hinshaw (Arizona State) & Timothy Burr; "Arizona's Win-Win Short-Term Credit Solution: Assisting Arizona's Unbanked and Underbanked While Supportin Tribal Self-Determination," by Robert Rosette & Saba Bazzazieh; and "The Short History of Arizona Legal Ethics," by Keith Swisher (Phoenix).

The University of Baltimore Law Review's Winter 2013, issue includes the papers and addresses from Applied Feminism and Democracy: The Fifth Annual Feminist Legal Theory Conference, with a keynote address by Senator Barbara Mikulski and papers by Alizabeth Newman (CUNY), Janel A. George and Rachel A. Van Cleave (Golden Gate).

Craig Estlinbaum

October 18, 2013 | Permalink | Comments (0)

Thursday, October 17, 2013

Alabama: No Duty to Pay Child's Post-Minority Education Expenses

Reversing 24-year old precedent, the Alabama Supreme Court held earlier this month that Alabama law does not authorize courts to order parents to pay postminority educational expenses.  The case is Ex Parte Christopher, No. 1120386 (Ala. October 4, 2013).

In Ex Parte Bayliss, 550 So.2d 986 (Ala. 1989), the court interpreted an Alabama statute to allow a divorce court to order a noncustodial parent to pay a child's college expenses.  The statute reads:

Upon granting a divorce, the court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper...

Christopher turned on the meaning of "children of the marriage" and the court's obligation to follow stare decisis.  The court looked to the common law and dictionary definitions of "children," which is not a defined term in the statute, to conclude the phrase refers to minors.  The court noted that interpreting the term "children" to include adults would lead to the "absurd and unjust" result of court "assign[ing] custody of the adult children of a marriage to one of the divorcing parties."

Regarding stare decisis, the court wrote:

By departing from settled precedent on the meaing of the term "children" in [the statute] and expressly overturing eight cases that conformed to that precedent, the Bayliss court indeed "unsettled" the law.  The question arises whether we are bound by the principle of stare decisis to follow Bayliss, even though that opinion itself repudiated that principle.  We are not so constrained.

The majority determined that the court erred in Bayliss and the court had an obligation to correct the error. 

Two justices dissented in separate opinions in a lengthy decision including six opinions and 74 pages.  One dissenting justice, citing the acquiescence principle, observed that in the 24 subsequent years, the Alabama legislature had not statitutorily overturned Bayliss.  The justice finds this fact to be an instructive interpretive benchmark.

The states are divided on this issue with some providing no discretion for courts to order parents to support or educate nonminority children, e.g., Curtis v. Kline, 666 A.2d 265 (Pa. 1995) (no duty to support postminority children), others providing for the duty to pay educational expenses to age 21, e.g., Utah Code Ann. sec. 15-2-1, and still others giving courts authority to do so without regard to age, e.g., Donarski v. Donarski, 581 N.W.2d 130 (N.D. 1998) (postminority support is limited and based upon case circumstances).

Craig Estlinbaum

October 17, 2013 in Family Law, Interesting Cases, State Law | Permalink | Comments (0)

Haw: Delay and Scientific Uncertainty

Rebecca Haw (Vanderbilt) has posted, "Delay and its Benefits for Judicial Rulemaking Under Scientific Uncertainty" on SSRN.   This is the abstract:

The Supreme Court’s increasing use of science and social science in its decision-making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be be responsive, but not reactive, to new scientific findings and theories, a difficult balance for lay justices to strike. This Article argues that the Court uses delay — defined as refusing to make or change a rule in light of new scientific arguments at time one, and then making or changing the rule because of the same arguments at time two — as a tool to improve decision-making amidst scientific uncertainty.

Using the Court’s antitrust jurisprudence as an example, this Article shows that delay can have a salutary effect on rule-making because it allows the Court to use academic consensus (that either develops or matures between times one and two) as a signal of scientific reliability. As a conservatizing device, delay operates in the common law tradition, but it also avoids some of the failures associated with traditional common law features like stare decisis and incrementalism. The Article concludes by contrasting Supreme Court decision-making with an area of law where delay is impractical or undesirable. In toxic tort litigation, where the goals of deterrence and compensation preclude the use of delay in the face of new scientific arguments, the law pays the price in uncertainty and error.

This article is forthcoming in the Boston College Law Review.

Craig Estlinbaum

October 17, 2013 in Law Review Articles, Supreme Court | Permalink | Comments (0)

Wake Forest Law Review: IP Symposium

The Wake Forest Law Review will host its fall 2013 symposium, "Internet Privacy Regulation," on October 25 at the law school.   From the law review's website:

Participants will examine how social media has affected (and effected) legal norms about identity, group formation, governmental regulation, intimacy, secrecy, and zones of privacy. Contributions will arc in multiple directions, but the symposium’s nexus will be a focus on regulatory responses to privacy challenges posed by the Internet’s increasing centrality to our everyday lives.

Craig Estlinbaum

October 17, 2013 | Permalink | Comments (0)

Tuesday, October 15, 2013

CPLR Article 78 expresses a preference that state courts, rather than federal courts, decide a federal litigant’s “state-law statutory-construction” claim

Carver v. Nassau County Interim Finance, CA2, Docket Nos. 13-0801, 13-0840
James Carver, Gary Learned, and Thomas R. Willdigg, as presidents of the their respective employee organizations representing certain employees in Nassau County police collective bargaining units [Police Union], challenged a wage freeze imposed by the Nassau County Interim Finance Authority [NIFA].* Police Union alleged that the freeze violated the Contracts Clause, Article I, Section 10 of the Constitution of the United States and NIFA’s power to impose a wage freeze pursuant to §3669 of the New York Public Authorities Law had expired.
The district court granted summary judgment to Police Union based solely on the statutory Interpretation of its State law claim. NIFA appealed and the Circuit Court of Appeals held that the district court, in granting summary judgment to Police Union on its state law claim without reaching the constitutional question, abused its discretion in exercising pendent jurisdiction over the statutory construction claim. It vacated the lower court’s ruling and remanded the matter with instructions to the district court to dismiss Police Union’s statutory construction claim..
On January 26, 2011, NIFA imposed a control period. After Nassau County unsuccessfully challenged the imposition of the control period in an Article 78 proceeding, County of Nassau v. Nassau County Interim Finance Authority, 33 Misc. 3d 227, NIFA passed two resolutions freezing wages for all County employees on March 24, 2011.
The wage freeze forced the County to breach the terms of the collective bargaining agreements it had entered into with the various County police unions. On April 1, 2011, Police Union commenced this action in federal court, alleging that the wage freeze violated the Contracts Clause, Article I, Section 10 of the Constitution. Police Union later amended its complaint to add a second claim that NIFA lacked the authority under state law to order a wage freeze after the conclusion of the interim finance period.
The district court did not reach Police Union’s “Constitutional claim,” holding that the statutory question was “most appropriate for summary disposition.”
The Circuit Court, noting that district courts have supplemental jurisdiction over pendent state law claims “that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution,” 28 U.S.C. §1367(a) said that it was reviewing the district court’s decision to assert supplemental jurisdiction over a state law claim under an abuse-of-discretion standard.
As this case “… concededly presents an unresolved question of state law and is also one in which there are exceptional circumstances which provide compelling reasons for declining jurisdiction,” the Circuit Court held that “the construction of the provision of the NIFA Act at issue raises an unresolved issue of state law – the interpretation of a poorly drawn statute – that should be resolved by the New York state courts because the manner in which the statute is construed implicates significant state interests.”
The court explained that as it had previously ruled, “[w]here a pendent state claim turns on novel or unresolved questions of state law, especially where those questions concern the state’s interest in the administration of its government, principles of federalism and comity may dictate that these questions be left for decision by the state courts,” citing Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998).
Although the defendants argued that jurisdiction over this pendent state law claim should be denied because of the special statutory procedure that New York law – CPLR Article 78 – provides for adjudicating claims that a body or officer has acted in a manner not authorized by state law the Circuit Court said that it “need not decide, however, whether Article 78 can, on its own, deprive a federal court of jurisdiction over claims brought under that provision, as some district court cases have held….” For present purposes, said the court, it is sufficient to recognize that Article 78 reflects a state preference for a state mode of procedure that “is designed to facilitate a summary disposition of the issues presented . . . and has been described as a fast and cheap way to implement a right that is as plenary as an action, culminating in a judgment, but is brought on with the ease, speed and inexpensiveness of a mere motion.”
The Circuit Court said that on remand “the district court should dismiss the state-law claim, but retain jurisdiction over [Police Union’s] federal constitutional claim. Should Police Union decide to pursue its state-law statutory-construction or other related claims in state court, the district court may decide, within its discretion, to stay the federal action until the state-court litigation has completed because the state courts’ resolution of the state claim may obviate the need to resolve the federal constitutional question.
* The Nassau Interim Finance Authority is a public benefit corporation created by the New York State Legislature in June 2000 in response to the growing financial crisis facing Nassau County.
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

October 15, 2013 in Litigation | Permalink | Comments (0)

Illinois - Larry Ribstein Memorial Symposium

From the University of Illinois School of Law website:

In honor or Larry Ribstein’s innumerable contributions to legal scholarship and the academy, the University of Illinois College of Law will host the Larry Ribstein Memorial Symposium on October 17-18, 2013. The Symposium is organized by Professors Amitai Aviram, Ralph Brubaker, Nuno Garoupa, Heidi Hurd, Christine Hurt, and David Hyman; and will consist of a series of roundtable sessions, including paper presentations and discussion.  Articles will be published in the University of Illinois Law Review in 2014.

For more information, click here.

Hat Tip: Legal Scholarship Blog.

Craig Estlinbaum

October 15, 2013 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Monday, October 14, 2013

Elon: Windsor & Perry Symposium

On November 1, the Elon Law Review, located in Greensboro, North Carolina, will host its fall 2013 symposium on the implications of United States v. Windsor and Hollingsworth v. Perry, the United State Supreme Court's two major marriage equality decisions from the Fall 2012 Term.  The symposium is co-sponsored by the Marriage and Family Law Research Project of BYU Law School, located in Provo, Utah.

Craig Estlinbaum

October 14, 2013 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Sunday, October 13, 2013

Adjunct Unionization

As readers of this blog all know, adjuncts are abused by many, if not most universities. They make up the majority of the faculty, but are the lowest paid, have no job security or benefits. It now appears that some adjuncts are fighting back by organizing.

Adjuncts generally have no say in the goverance of the university and therefore, they do not have a "Yeshiva problem." Recall, that in 1980 the Supreme Court in a case called Yeshiva Univ v. NLRB held that faculty who ran the university were managers and therefore, not protected under the National Labor Relations Act.

An interesting post on Workplace Prof Blog explores some of these issues and is available here.

Mitchell H. Rubinstein 

October 13, 2013 in Adjunct Information in General, Adjuncts in the News | Permalink | Comments (0)

Friday, October 11, 2013

New In Print: The Law Review Review

The October 2013 California Law Review includes "Appellate Review of Social Facts in Constitutional Rights Cases," by Caitlin E. Borgmann (CUNY); "Sticky Slopes," by David Schraub; and "Intellectual Property Doctrine and Mid-Level Principles," by David H. Blankfein-Tabachnick (Penn State, visiting), with a reply by Robert P. Merges (Cal-Berkeley).

The August 2013 Hastings Law Journal includes Symposium: From Bench to Society: Law and Ethics at the Frontier of Genomic Technology.  From the introductory essay by Jamie S. King (Hastings), the symposium's purpose was to, "examin[e] the vast potential implications (both good and bad) of the next wave of major advances in genetic andgenomic testing for patients, providers, their families, the practice of medicine, and society as a whole."

Volume V, Number 1, Elon Law Review has the symposium, "A Radical Notion of Democracy: Law, Race, and Albion Tourgee, 1865-1905."  Contributions include an introduction by Sally Green,  "Reflections on Albion Tourgee's 1896 View of the Supreme Court: A "Consistent Enemy of Personal Liberty and Equal Rights," by Michael Kent Curtis (Wake Forest); "The Past as Prologue: Albion Tourgee and the North Carolina Constitution," by Judge Robert N. Hunter, Jr.; "The National Citizen's Rights Association: Precursor of the NAACP," by Carolyn L. Karcher (Temple, Liberal Arts); "The Legitimacy of Law in Literature: The Case of Albion W. Tourgee," by Brook Thomas; and "Adaline and the Judge: An Ex-Slave Girl's Journey With Albion W. Tourgee," by Naurice Frank Woods, Jr (UNC-Greensboro, African-American Studies).   Touree was a Greensboro former, lawyer, judge, and novelist best known perhaps for representing Homer Plessey before the United States Supreme Court in Plessey v. Ferguson, 163 U.S. 537 (1896).  See also here and here.

Volume 101, Number 4, Kentucky Law Review includes, "Stepping Into the Gap: Violent Crime Victims and the Right to Closure; and a Discursive Shift Away From the Zero Sum Resolutions," by Blanche Bong Cook; "White Collar Overcriminalization: Deterrence, Plea Bargaining, and the Loss of Innocence," by Lucian E. Dervan (Southern Illinois); "He Said, She Said, Let's Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC and Social Science," by Joni Hersch and Beverly Moran; and "Justice Holmes's Bad Man and the Depleted Purposes of Punitive Damages," by Jill Wieber Lens.

The Spring 2013 New England Law Review has its Symposium: Crisis in the Judiciary.  There are links to the articles at the link.  This symposium's primary focus is upon the challenges the judiciary faces by restrained budgets at the federal and state levels.

The August 2013 UCLA Law Revew has Symposium: Twenty-First Century Litigation: Pathologies and Possibilities

Volume XVIII, Number 3, Fordham Journal of Corporate and Financal Law, includes articles by Dr. Markus Roth, Hilary J. Allen (Loyola NO), Benjamin D. Landry, Paul Rose (Ohio State) and Justin Schwartz

Craig Estlinbaum

October 11, 2013 in Law Review Articles | Permalink | Comments (0)

Thursday, October 10, 2013

Is Folk Music Still Possible?

Geoffrey Himes at Paste asks, "Is Folk Music Even Possible Anymore?"  He begins:

Is folk music even possible anymore?


By “folk music,” I refer not to the diluted meaning of the term, where anyone with an acoustic guitar or a fiddle can be considered a folk musician. I’m talking about true folk music, songs that are created by and for a small, self-contained community, where musicians are performing for friends and neighbors in a style they all grew up with. These folk musicians don’t have to bring out the universal—or generic—elements in their songs because they’re not traveling to play for strangers.


A singer/songwriter who travels the continent with her banjo and Martin guitar is not a folk musician in this sense; she’s a pop musician with different instrumentation.

Himes' article is a good read on how mass media and the consumer culture impacts indiginous and organic art forms.   He also warns that the "diminishing possibility of folk music" impoverishes popular culture.  Himes thus defends popular artists that "play old styles the same way previous generations did," arguing that if those artists did not, "what [wells of musical tradition] would we drink from?"  Himes writes, "When the teenagers in every Appalachian gas station and every Mississippi convenience store are wearing ear buds, can there be a region isolated enough to evolve its own mutated music?"  Can there, indeed.

Craig Estlinbaum

October 10, 2013 in Music, Technology | Permalink | Comments (0)