November 28, 2012
Vermont Buyouts and Other Law School News
This is a tough time to be a law school dean. Consider Vermont Law School dean Marc Mihaly, who only four months into the job, is now facing a $3.3 million budget deficit. With a 14% projected revenue decline on the horizon, Mihaly has announced a voluntary buyout for VLS staff which he says could be extended to faculty if there are not enough takers. He also announced that VLS will increase its LL.M program and certificate offerings to make up for the revenue loss. Taja-Nia Henderson at Concurring Opinions, has some interesting comments on the problems and risks associated with law school faculty buyout programs.
Meanwhile, Penn State Law dean Philip McConnaughay, facing declining enrollment at the dual-campus school, has proposed to "spin off" the Carlisle campus into a separate, autonomous entity beginning in 2015. This proposal came after state and local officials rejected his proposal to consolidatete the 1L program into the University Park campus. Interestingly, Penn State acquired the Carlisle campus in only 12 years ago.
Ten new law schools that are either ABA accredited or seeking accreditation have opened the doors in the last ten years with new schools in Idaho, Indiana, Louisiana and Texas planning to open. With enrollment declining and legal jobs paying enough to reasonably retire law school debt harder to find, it seems obvious that some industry restructuring, including possible consolidation or school closure, will occur. We can expect more stories such as the ones coming out of Vermont and Pennsylvania as this process unwinds.
February 28, 2012
2d Circuit Upholds Rule That Correspondence Law School Graduates Are Not Eligible To Sit For Bar
Bazadier v. McAlary, ___F.3d___(2d Cir. Feb. 16, 2012), is an important case which has gotten little press. The 2d Circuit upheld New York's bar admission rules which effectively bar graduates of law school correspondence and online schools from sitting for the New York bar examination. The case was brought by a California attorney who was fully licensed.
The decision is unreported and not particularly well written. One would have thought that a decision involving this important issue would have generated more attention by the court. The plaintiff challenged the court rules on Equal Protection and First Amendment grounds. In rejecting those arguments, the court stated:
First, the district court properly concluded that, because Bazadier’s claims do notimplicate a fundamental right or a suspect class, they should be analyzed under rational basisreview. See Hayden v. Paterson, 594 F.3d 150, 169-70 (2d Cir. 2010). The challenged Rules,Sections 520.3 and 520.5(a) of Title 22 of the New York Compilation of Rules and Regulations,which effectively bar a graduate of a correspondence law school from taking the New York barexamination, are not based upon the content of the instruction provided by a law school and donot favor or disfavor any form of speech on the ideas or views expressed. Rather, the Rules areoccupational regulations that express a preference for one form of legal pedagogy over another.Second, the district court properly concluded that, based on the State’s argument thatcorrespondence-based study offers less assurance that a graduate has received a legal educationthat is adequate for membership to the bar, the Rules had a rational relation to the State’slegitimate interest in protecting the public from an incompetent bar. See In re Griffiths, 413 U.S.717, 725 (1973) (“[A] State [has] a substantial interest in the qualifications of those admitted tothe practice of law . . . .”); see also People v. Alfani, 227 N.Y. 334, 339 (1919) (“The reason whypreparatory study, educational qualifications, experience, examination and license by the courtsare required, is not to protect the bar . . . but to protect the public.”). Bazadier failed to “negativeevery conceivable basis” upon which the Rules could be upheld. Lewis v. Thompson, 252 F.3d567, 582 (2d Cir. 2001) (internal quotation marks omitted). Accordingly, the district courtproperly dismissed Bazadier’s equal protection claim based on his First Amendment right offreedom of speech.Finally, we concluded that the district court properly found that Bazadier had failed tostate a claim based on an infringement of his First Amendment right of freedom of associationfor the reasons stated in its decision and order. Accordingly, because Bazadier’s complaint failed to state a claim for relief, the district court properly dismissed it without first grantingleave to amend.
What I have always found interesting about New York's rules is that you do not even have to be a law school graduate to sit for the bar. As I understand it, you have to only go to one year of law school and then work as an apprentice for a lawyer. I actually know someone who has done this and he is a first rate lawyer. Therefore, I fail to understand the rationale for not allowing correspondence or online classes. If the student can pass the bar, that is what should count in my mind.
Mitchell H. Rubinstein
October 16, 2009
Excellent Management Oriented Article On Employee Free Choice Act
Duane Morris attorneys Eve Klein, Bruce Kasten and Joanna Varon write an excellent point of view article entitled The Employee Free Choice Act-What's An Employer To Do?, 81 N.Y.S. Bar J. 38 (Sep't. 2009). Unfortunately, a copy is not freely available on the internet. I point this article out because unlike so many that have been written by advocates, this article compares and contrasts existing law to the Employee Free Choice Act. The article also outlines the legislative history of EFCA, which has been around since 2003, provides statistical information about the level of unionization in this country and most importantly, the article discusses potential revisions to EFCA that may be necessary to get it through Congress.
We have covered EFCA extensively on this blog. I personally have spoke about it several times. My own view is that it is not going to pass in its present form. The card check provisions are likely to be dropped. However, I expect the rest of the Bill to pass. I suspect that passage may await the election of a new Senator to replace the late Senator Kennedy.
Mitchell H. Rubinstein
June 07, 2007
Unauthorized Practice of Law in Cyberspace