Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, July 30, 2013

Rosen on Copyright and Vanishing Books

Rebecca J. Rosen at The Atlantic has a telling story on how copyright laws have caused books from the mid-20th Century forward to "vanish."  The story is "The Hole in Our Collective Memory: How Copyright Made Mid-Century Books Vanish."  Rosen concludes:

By this calculation, the effect of copyright appears extreme. Heald says that the WorldCat research showed, for example, that there were eight times as many books published in the 1980s as in the 1880s, but there are roughly as many titles available on Amazon for the two decades. A book published during the presidency of Chester A. Arthur has a greater chance of being in print today than one published during the time of Reagan.

Craig Estlinbaum

July 30, 2013 in Articles, Federal Law | Permalink | Comments (1)

Thursday, July 25, 2013

Blogging Judges

Robert J. Ambrogi at Law Technology News has posted "Blogging From The Bench" on blogging judges and justices.  Ambrogi himself blogs here and here.

Craig Estlinbaum

July 25, 2013 in Articles, Blogs, Legal, Judges | Permalink | Comments (0)

Sunday, May 19, 2013

Files on Conflicts of Interest

Tyler, Texas attorney and State Bar of Texas President Buck Files has written an informative essay on conflicts of interest which appears in the April 2013 Voice for the Defense (page 15).  The essay uses the federal case U.S. v. Lopesierra-Gutierrez, No. 07-3137 (D.C. Cir. March 1, 2013) as a starting point to highlight how important it is to be mindful of conflicts when representing defendants in criminal cases - and by extension, any client in any case.  Some conflicts are waivable and some are not and knowing the difference between the to might save the practicing attorney a trip before a grievance committee a time or two.

Craig Estlinbaum

May 19, 2013 in Articles, Criminal Law, Ethics, Interesting Cases | Permalink | Comments (1)

Friday, May 3, 2013

New In Print: Law Review Reviews

Fordham Law Review's April 2013, issue includes a symposium on the goals of antitrust.  Barak Orbach (Arizona) contributed the Forward.  The April 2013, California Law Review includes "Property's Constitution," by James Y. Stern (Virginia) and From Independence to Politics in Financial Regulation," by Stavros Gadinis (Berkeley).  The current issue of the Columbia Journal of Gender & Law includes a Symposium Honoring the Advocacy, Scholarship and Jurisprudence of Justice Ruth Bader Ginsburg.  

The March 2013, Columbia Law Review includes "In Defense of Big Waiver," by David J. Barron (Harvard) and Todd D. Rakoff, (Harvard) and "Technological Innovation, International Competition and the Challenges of International Income Taxation," by Michael J. Graetz (Columbia) and Rachael Doud (Yale '12).  The Winter 2013, Houston Law Review includes articles by Alexia Brunet Marks (Colorado), Stacey A Tovino (UNLV) and Fredrick E. Vars (Alabama).

Legal history buffs may want to check out the Fall/Winter 2013 Rutgers Law Journal, which includes Symposium: The Constitution and the Sectional Conflict.  The current issue of the Saint Louis Law Review includes the symposium, "Invisible Constitutions:  Culture, Religion and Memory."

The Texas Tech Law Review's Fall 2012 issue includes the Sixth Annual Criminal Law Symposium: Sixth Amendment, including panel articles on confrontation, the right to counsel at trial, and the right to counsel before trial.  As of this writing, this edition is not available online at the law review's website.

The March 2013, Cornell Law Review includes "Accepting the Limits of Tax Law and Economics," by Alex Raskolnikov (Columbia), "The Regulator Effect in Financial Regulation," by Jonathan R. Macey (Yale) and "The Social Production of National Security," by Aziz Z. Huq (Chicago).

Some other recently released symposium issues of note are UC Davis Law Review and "The Daubert Hearing: From All the Critical Perspectives;" The University of Chicago Law Review and "Immigration Law and Institutional Design;" Washington University Global Studies Law Review and "Global Nuclear Energy Law and Regulation;" and Georgetown Journal of Law & Public Policy and "Hyper Partisanship and the Law."

The April 2013, Duke Law Journal includes "Delegating Up: State Conformity With the Federal Tax Base," by Ruth Mason (Connecticut) and the lecture, "Exit, Voice and Disloyalty," by Heather K. Gerken (Yale).  The current Oregon Law Review (Vol. 91, No. 4) includes a symposium on issues relating to marijuana legalization and the war on drugs.

Craig Estlinbaum


May 3, 2013 in Articles, Law Review Articles | Permalink | Comments (0)

Saturday, April 27, 2013

Extraneous Facebook Remarks Leads To Remand For Re-Sentencing

Debra Cassens Weiss at ABA Journal has this report about a strange federal child pornography case in Connecticut where the appeals court has remanded the case back to the trial court for re-sentencing.  From the story:

...[U.S. District Judge] Eginton justified his decision to impose the longer sentence by referencing “Facebook, and things like it, and society has changed.” He speculated that the proliferation of Facebook would spur an increase in child pornography, and said he hoped Facebook founder Mark Zuckerberg was “enjoying all his money because … he’s going to hurt a lot of people,” the appeals panel said.

The appellate court remanded for a new sentencing hearing, stating, "“It is plain error for a district court to rely upon its own unsupported theory of deterrence at sentencing, especially where, as here, that theory has little application to the actual facts of the case itself."

Craig Estlinbaum

April 27, 2013 in Articles, Criminal Law, Interesting Cases | Permalink | Comments (0)

Thursday, April 25, 2013

Discussing Under the Radar Supreme Court Cases

The Atlantic has posted a feature that asks several leading attorneys, journalists, scholars and judges, "What's the Most Important Supreme Court Case No One's Ever Heard Of?"  It's an interesting read.

Craig Estlinbaum

April 25, 2013 in Articles | Permalink | Comments (0)

To Mirandize Or Not To Mirandize

Whether or not authorities are duty bound to read the alleged Boston Marathon bomber, Dzhokhar Tsarnaev, his Miranda rights (and the consequences, if any, of their failure to do so) has been a hot topic in the news and blogosphere in recent days.  I have been following the story as closely as I can and though I would post some of the most informative and interesting news and opinion pieces on the subject here: 

Thiere are surely many more well-reasonsed commentaries on this subject - please feel free to add or link to them in comments.  As an aside, I predict a healthy increase in law review submissions by  professors, practicing attorneys and students addressing the public safety exception to Miranda v. Arizona, in the coming months.

Craig Estlinbaum

April 25, 2013 in Articles, Constitutional Law, Criminal Law, Current Affairs, Law Review Ideas | Permalink | Comments (0)

Monday, April 15, 2013

New In Print: Law Review Review

Cardozo Law Review's February 2013, issue includes Symposium: Constitutionalism, Ancient and Modern.  The Michigan State Law Review's Volume 2012:2 includes a series of articles on the subject of Lawyers as Conservators, with titles such as "Training Young Lawyers to Be Conservators of Legal Institutions  & the Rule of Law" and "On the Declining Importance of Legal Institutions."

Volume 29:1 of the Touro Law Review includes exerpts from the Touro College Jacob D. Fuchsberg Law Center Conference in Paris:  Persecution Through Prosecution:  Alfred Dreyfus, Leo Frank and the Infernal Machine.  The Summer 2012 edition of the University of Detroit Mercy Law Review includes Symposium: The Future of Intellectual Property, which clocks in as one of the shortest symposium editions in recent memory at 29 pages.

South Texas Law Review's Fall 2012 issue includes Symposium: Citizen Employees: Whistleblowers and Other Employees Acting in the Public Interest.  The University of Miami Law Review's Winter 2013, issue includes Symposium: The Future of the Death Penalty in America.  William & Mary Law Review's February 2013, issue features the symposium "Law Without a Lawmaker" and features articles on Erie Railroaad Co. v. Tompkins.

The American University International Law Review's Volume 27, No. 4 includes the Center on International Commercial Arbitration Symposium: Salient Issues in International Commercial Arbitration.  Volume 39:2 of the William Mitchell Law Review includes a symposium on the U.S.-Dakota War of 1862.  Volume 76, Issue 1 of the Albany Law Review includes Symposium: What Are We Saying? Violence, Vulgarity, Lies ... and the Importance of 21st Century Free Speech. (New York Univ)

Boston College Law Review's March 2013, issue includes a modified version of Professor Jeremy Waldron's (New York Univ.) Clough Distinguished Lecture in Jurisprudence titled, "Separation of Powers in Thought and Practice."  The Fall 2012 issues of Duke Enviornmental Law & Policy Forum includes a special issue on Disaster Law.  Harvard Journal of Law & Public Policy's Spring 2013, issue includes Symposium: Privacy, Security, and Human Dignity in the Digital Age.  The current issue of the Washington University Journall of Law & Policy includes Symposium: Liddell Is Forty: Commemorating the Desegregation Movement in St. Louis, and A Look at the Future of Urban Education.

The April 2013, Michigan Law Review features its annual Survey of Books, including a Forward by Richard A. Danner (Duke).  Finally, the Spring 2013, issue of Southwestern Law Review includes papers presented at the AALS ADR Section's Program titled "The Supreme Court and the Future of Arbitration.

Craig Estlinbaum

April 15, 2013 in Articles, Law Review Articles | Permalink | Comments (0)

Thursday, August 9, 2012

Two Papers on Due Process and Takings Posted to SSRN

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.

Craig Estlinbaum

August 9, 2012 in Articles, Constitutional Law, Due Process, Law Review Articles | Permalink | Comments (0)

Wednesday, June 13, 2012

Estreicher on Overturning Obamacare


Sam Estreicher just published another excellent article in the New York Law Journal on June 13, 2012, here. In this relatively short article-especially for Sam, Professor Estreicher outlines the major arguments in support of Obamacare. Namely Congress regulates us all the time and he gives an example of having to wear seat belts. 

Professor Estreicher is clearly concerned that the Supremes may over-turn Obamacare based upon his analysis of the Justices comments during oral argument. 

In any event, what makes health care different is that you do no choose health. Yes, Congress regulates seat belts, but you do not have drive that car. 

Whether this makes a difference for constitutional purposes, we will shortly find out. I hope Professor Estreicher is right.

Mitchell H. Rubinstein

June 13, 2012 in Articles, Constitutional Law | Permalink | Comments (0)

Wednesday, August 17, 2011

Arbitrator Impartiality

Arbitrator Impartiality and the Duty to Disclose is an interesting April 28, 2011 New York Law Journal article (registration required). The article discusses some recent commercial and labor cases which were vacated because the arbitrator failed to make a required disclosure. The article also discusses the lower court decisions in U.S. Electronics v. Sirius Satellite Radio which is pending before the NYS Court of Appeals. In that case, the son of a sitting Congressman was the arbitrator. The Congressman made statements about issues relevant to the arbitration, but the son was unaware of them. The First Department refused to vacate the decision, but did note that it is "incumbent upon an arbitrator to disclose any relationship which raises even a suggestion of possible bias."

Stay Tuned.

Mitchell H. Rubinstein

August 17, 2011 in Arbitration Law, Articles | Permalink | Comments (0)

Thursday, June 30, 2011

Great Article On Public Sector Bargaining Crisis In This Country

Joe Slater, one of the most important scholars whose focus is public sector labor law, recently published an important article for the American Constitution Society, The Assault on Public Sector Collective Bargaining: Real Harms and Imaginary Benefits (2011). As the article states:

Perhaps the most striking political development in 2011 is the widespread and aggressive assault on public sector collective bargaining rights.  While the most highly publicized and most significant changes have taken place in Wisconsin and Ohio, moves are afoot in a number of states.  These changes represent the most radical revisions to labor law in the U.S. in decades, and they have set off a political firestorm.This brief will argue that these attacks are deeply misguided.  They serve no purpose beyond a partisan attempt to weaken a key supporter of the Democratic party and they do not address budget deficits.  Instead, they take away a core right that has been recognized in the vast majority of the United States for up to half a century, a right that is considered fundamental in much of the industrialized world, a right that helps individual teachers, firefighters, police officers, and other public employees in their day-to-day lives at the workplace, a right that helps sustain a vital middle class, and a right that helps ensure talented and skilled people will find public service an attractive career option.

I am sure that Joe will be turning this piece into a law review article. 

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

June 30, 2011 in Articles, Law Review Ideas, Public Sector Labor Law | Permalink | Comments (0)

Thursday, June 23, 2011

Inadvertent Disclosure

In these days of email and computers, it is not unusal for an attachment to be missed and therefore, certain documents are inadvertentedly disclosed. In New York, the new Rules of Professional Conduct, Rule 4.4(b), requires that attorneys who recieve such documents to notify the sender. As this article points out, this rule raises more questions than it answers and I am sure that we are going to see more cases addressing this important issue.  Download Inadvertent Disclosure

Law review commentary would be most welcome.

MItchell H. Rubinstein

June 23, 2011 in Articles, Law Review Ideas, Litigation | Permalink | Comments (0)

Thursday, June 16, 2011

Cyberbullying and Intentional Infliction of Emotional Distress

The New York Law Journal published on Feb. 9, 2011, an excellent article on Cyberbullying and Intentional Infliction of Emotional Distress,  Download OUTSIDE COUNSELCyberbullying and Intentional Infliction ofEmotional The article provides in part:

Cyberbullying typically takes place when at least one individual uses technology to harm or threaten another. Some conduct has become so commonplace that a whole new parlance has developed to describe a variety of cyberconduct. The conduct may take the form of "cyberstalking" (following victims when they go online), "impersonation" (hacking into a victim's computer or creating fictitious profiles including pretending to be the victim, signing the victim up for e-mail lists such as junk mail or pornography, or performing illegal or immoral acts in the name of the victim), "denigrating" or "dissing" (spreading untrue gossip or rumors about a person), "sending malicious code" (forwarding the victim a computer virus), and "outing" (sharing intimate information about the victim with others without the victim's consent).2Extreme cyberbullying can lead to actions seeking civil redress based on the tort of intentional infliction of emotional distress and even criminal prosecution. In Kaisman v. Fernandez,3 it was alleged that defendants caused plaintiff's name to be improperly linked to pornographic websites on certain Internet search results. In an illustrious case in Missouri, the mother of a 13-year-old girl, who did not get along with another 13-year-old girl named Megan Meier, set up a fictitious social network profile of an actual 16-year-old boy, contacted and initially flirted with Megan, but ultimately told her that "he" no longer liked her and that the world would be a better place without her. Thereafter, Megan committed suicide and criminal prosecution against the mother of the other girl ensued.Many states have passed legislation relating to cyberbullying, but for the most part, this legislation relates to criminal penalties or prohibitions concerning school-related activities. This article will examine how civil theories and in particular the tort of intentional infliction of emotional distress may apply in cyberbullying situations.

I am sure we are going to see more of this. 

Mitchell H. Rubinstein

June 16, 2011 in Articles, Law Review Ideas | Permalink | Comments (0)

Monday, June 13, 2011

New York Wage Notice, Tips and Independent Contractor Legislative Changes

Joseph P. Furfaro and Risa M. Salins recently published an excellent article entitled New State Laws Cover Wage Notices, Tips, Independent Contractor Status (New York Law Journal Feb. 4, 2011)  Download Wage theft article 

The article discusses several recent legislative enactments in New York, including the Wage Theft Protection Act, S. 838, which is basically imposes  a notice and written wage statement requirement, The Hospitality Industry Minimum Wage Order which deals with tip credits for minimum wage purposes, New York State Construction Industry Fair Play Act, S. 5847-F, which creates a rebuttable presumption in favor of employee status for individuals performing services for construction industry contractors.

Mitchell H. Rubinstein

June 13, 2011 in Articles, Employment Law, Law Review Ideas | Permalink | Comments (1)

Sunday, April 17, 2011

Independent Contractors vs. Employees

The line between who is and who is not an employee is often a blur. However, it is an important line to draw as it can have consequences. Non-employees are not protected under our employment laws and are often not eligible for employee benefits. 

IRS Gets Class Conscious is an interesting April 2011 article from the ABA Journal which addresses some of these issues. Of significant note is that both the IRS and the DOL are cracking down on employee misclassification. So, employers beware!

Mitchell H. Rubinstein

April 17, 2011 in Articles, Employment Law | Permalink | Comments (0)

Saturday, March 19, 2011

Worker Misclassification Article

As my students all know, the issue of worker misclassification is a serious problem in employment law. An interesting article which summarizes the law in this area is Bran Noonan, The Campaign Against Employee Misclassification, 82 NYS Bar Journal 42 (Oct. 2010)(not freely available on internet). What I found most interesting about this article is that there are several Bills pending in both state and federal legislatures to address the problem of misclassification. The article also quotes to one study which indicates that up to 10% of workers are misclassified as independent contractors. 

Mitchell H. Rubinstein

March 19, 2011 in Articles, Employment Law, Law Review Ideas | Permalink | Comments (0)

Monday, February 28, 2011

Workplace Bullying In New York

On Jan. 21, 2011, the New York Law Journal published an interesting article on Workplace Bullying.  Download Workplace bullying Workplace Bullying involves situations not covered by exisiting laws such as Title VII. The article discusses Legislation pending in New York which would make Workplace Bullying actionable. A. 5414. 

This is one of the most controversial issues in labor and employment law today. Much has been written about it and legislation has been proposed in several states. 

Mitchell H. Rubinstein

February 28, 2011 in Articles, Law Review Ideas, New York Law | Permalink | Comments (2)

Sunday, February 27, 2011

Union Busting In Wisconsin And In Other Parts of the Country

There is an assault on public sector workers throughout many parts of this country. Most of it is centered on the fact that public sector workers often contribute less for health insurance and pensions than their private sector counter parts. 

What they leave out is that these same public sector workers are paid between 3% and 11% than there private sector counterparts. The nonpartisan Center on Budget and Policy Priorities (CBPP) just published an important report which documents this. 

Public sector workers also do not have the opportunity to make real money as their private sector counterparts do. So, part of the deal is that public sector workers will make less, but have better benefits. 

In any event, this should not be about public vs. private sector workers or union vs. non-union workers. If their is a budget problem, and I believe there is one, then the focus should be on fixing it. A smart Governor or Mayor would look to unions as economic partners. It is not in the governments interest or the unions interest to have to lay off workers or cut services. 

Some simple things that could be done might be to agree to a wage freeze. Perhaps, some workers would agree to work longer hours for less pay-eliminating the need to hire others or pay OT. Perhaps, some workers might agree to forgo using a certain amount of vacation or sick leave for a temporary period of time. 

Most importantly, perhaps the workers can work with the government to make sure that government operates faster, cheaper and better. Increased productivity benefits us all. 

Forcing unions to give up the right of dues check off and severely limiting the right of unions to collectively bargain has nothing to do with a budget crisis and is just plain union busting plain and simple. 

Mitchell H. Rubinstein

February 27, 2011 in Articles, Current Events | Permalink | Comments (1)

Wednesday, February 16, 2011

Using Social Media Sites To Organize Woman and Younger Workers

Readers may find that a recent report, by the Labor Project for Working Families, Cornell ILR Programs and University of California Berkeley Labor Center interesting. This report  includes highlights of interviews with 23 organizers about how they use new social media tools and work-and-family issues in organizing campaigns. It also includes recommendations that may help unions strengthen their relationships with women and young workers.  The  Executive Summary is available as is the Full Report.

Mitchell H. Rubinstein

February 16, 2011 in Articles, Unions | Permalink | Comments (0)