Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, September 1, 2012

Interesting Blogs I Recently Came Across

Wednesday, August 22, 2012

Becoming A Lawyer Blog

I just came across Becoming A Lawyer, a blog by law school publisher Wolters Kluwer-one of the giants in law school publishing. It provides helpful information to prospective law students. For example, the article I just read is about being a law student and a parent at the same time. If your a college student thinking about law school and even if your a 1 L, you may want to check this blog out.

Mitchell H. Rubinstein

August 22, 2012 in Blogs, Faculty, Blogs, General, Blogs, Legal, Colleges, Law Students | Permalink | Comments (1)

Thursday, December 29, 2011

Bloggers Held Not To Be Journalists

Obisdian Finance Group v. Fox, ____F.Supp.2d____ (D. Or. Nov. 30, 2011), is an important case for us bloggers. Oregon has a statute which limits defamation damages unless a plaintiff first requests a retraction. The court held, however, that a internet blogger, was not protected under that statute and therefore, could not rely on that defense. The court also held that a blogger was not protected under that state's shield law which privileged journalists from revealing their sources. 

It is hard to find fault with the court's decision. It was based purely on statutory interpretation. Though blogging is similar to other journalist type activities, it is different. The medium is different (internet) and you do not have to sell your story; rather you just put it out there. There are no professional organizations, educational degrees or regulations which govern blogging. In short, it is different. Perhaps this case will trigger legislation throughout the several states.

Mitchell H. Rubinstein

December 29, 2011 in Blogs, Faculty, Blogs, General, Blogs, Legal | Permalink | Comments (5)

Sunday, November 7, 2010

NLRB Files Formal Complaint Against Company That Fired Employee For Comments On Facebook


The Hartford Courant reports that the NLRB filed a formal complaint against an ambulance company that fired an employee for complaining about her boss on Facebook. The company has a policy prohibiting employees "from making disparaging, discriminatory or defamatory comments" about the company, superiors, co-workers or competitors.

It appears that this company was non-union. As my students all know (remember Washington Alum), the NLRA does not only apply to unionized workers. It protects the rights of employees to engage in concerted activity for mutual aid and protection. The issue will be whether a comment on Facebook is concerted activity. With a pro-Labor Obama Board in office, I cannot imagine that the NLRB will not find this type of activity to be protected. 

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

Mitchell H. Rubinstein

November 7, 2010 in Blogs, General, Law Review Ideas, NLRB | Permalink | Comments (1)

Wednesday, June 9, 2010

Anonymous Blog Comments

Legal Blog Watch ran an interesting story about anonymous blog comments and links to several other stories. As the posting states:

The New York Times ran an interesting article Monday about how certain news Web sites and blogs have begun moving away from the once-standard practice of allowing anonymous posting of comments on articles. In the story, the Times mentions the recent hubbub surrounding Cleveland judge Shirley Strickland Saffold, whose e-mail address was used to register a commenter named "Lawmiss" on the Cleveland Plain Dealer's Web site. Lawmiss proceeded to make some inflammatory (and likely unethical, if, in fact, Lawmiss is found to be Judge Saffold herself) comments on articles about cases before her.

Mitchell H. Rubinstein

June 9, 2010 in Blogs, Faculty, Blogs, General | Permalink | Comments (0)

Wednesday, October 21, 2009

Blogger Anonymity

Julie Hilden wrote an excellent Sept. 15, 2009 article for Findlaw entitled Why a New York Court Unmasked the Blogger Who Wrote Harshly About a Model

It is primarily about Cohen v. Google (N.Y. Co. 2009), which we blogged about in August 2009, here.  In that decision, the court ordered pre-complaint disclosure of a bloggers identity and I opined that decision was fairly standard under New York law. The laws application to blogging is was what made the case different.

Julie raises an important point, namely that Google could have raised a First Amendment argument and oppose disclosure, instead of remaining silent. As Julie states:

The U.S. Supreme Court has made very clear, in McIntyre v. Ohio Elections Comm'n, that anonymous speech is protected, at least to some extent, by the First Amendment. As I discussed in a prior column, there are certainly state interests – such as national security – that might justify penetrating anonymity, but surely it should not be invaded at the drop of a hat. There is also uncertainty as to how far the right to speak anonymously extends outside political contexts (such as McIntyre's). However, I think the Court is unlikely to wholly reject (thought it may water down) the right to anonymous speech in contexts outside politics.

As this battle is being fought, Google should be firmly on the side of the First Amendment, rather than merely nitpicking about form. It was unacceptable for the company to betray its clients by merely punting on such an important point.

I suspect that Google did not fight disclosure because it did not want to be associated with a blogger who may have violated the law.

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

Mitchell H. Rubinstein

October 21, 2009 in Blogs, General, Law Review Ideas | Permalink | Comments (1)

Tuesday, October 13, 2009

Is Blogging Work???

Is blogging employment? You ask how? Many bloggers, including the undersigned, receive advertising revenue. Why does it matter? Well, it may effect eligibility or the amount of unemployment someone might receive. There are also tax consequences. If a blogger is an employee, perhaps they would be covered by our nations employment laws. Think this is a law prof hypo?? Think again, its real.

ABC News ran a story for entitled Lawyers Unemployment Benefits Yanked Over A $1 dollar A Day From A Blog.That October 13, 2009 article reports on a lawyer who truthfully reported he received 238 dollars from Google AdSense while collecting unemployment. The problem is you must be unemployed to collect unemployment and your unemployment is reduced if you work.  

It would be interesting to see if this case is actually litigated as the news report is about how the NYS Department of Labor is treating this case. I do not think the issue is whether he is an employee. Rather, the issue is whether he is working in his own business. As unusual as it may sound, I believe that if he earning an income from blogging, then he is working.  

Sounds like this is an excellent topic for a law review article.

Mitchell H. Rubinstein

October 13, 2009 in Blogs, General, Employment Law, Law Review Ideas | Permalink | Comments (0)

Wednesday, August 19, 2009

Google Ordered To Disclose Name Of Anonymous Blogger In High Profile Fashion Model Case

Liskula Cohen v. Google, Index No. 100012/09 (N.Y. Co. August 17, 2009)(Madden, J., J.S.C.), Download Cohen_doc
is an important decision which has obtained a lot of media coverage, including coverage by Good Morning America on August 19, 2009 where I first heard this story.
A well known fashion model sought to sue a blogger. However, she did not know who the blogger was. The court ordered the owner of the blog, Google, to disclose who made the posting in question.
While this case makes good TV news, the legal issues involved were quiet simple. New York Law has long permitted actions for pre-complaint disclosure under CPLR 3102(c) and there are many decisions involving defamation. What makes this case different is that Google and blogging were involved.
Additionally, Google did not oppose disclosure, but they also did not voluntary give out the information. In light of Google's non-opposition, I do not understand why they just did not give out the requested information. Another interesting aspect of the decision is that the anonymous blogger appeared-but his name was not disclosed. The court gave him/her an opportunity to be heard.

The decision is well reasoned and an excellent read for those interested.

Mitchell H. Rubinstein  

August 19, 2009 in Blogs, General, Litigation, Misc., Legal, New York Law | Permalink | Comments (0) | TrackBack (0)

Monday, June 15, 2009

Texting During Jury Deliberations

Electronic Communications During Jury Deliberations (registration required) is an interesting May 18, 2009 New York Law Journal article. It documents recent cases and pending litigation where jurors used email, Twitter or Facebook during a criminal trial. As the article points out, attempts by jurors to communicate about a pending trial have long been improper.  It seems like electronic communications will be treated in a similar fashion. As the article states:

Under N.Y. Criminal Procedure Law §270.40, once the jury is sworn, the court must give instructions that: "jurors may not converse among themselves or with anyone else upon any subject connected with the trial; that they may not read or listen to any accounts or discussions of the case reported by newspapers or other news media."

Web 2.0 has expanded and personalized our sources of information blurring the lines between traditional news media and privately published accounts.9 At the same time, mobile media has subtly transformed the art of conversation. Nonetheless, there is ample historical precedent to guide courts in responding to the abuse of communication technology by jurors.

More than half a century ago, the Appellate Division, Second Department, in People v. Migliori, 269 A.D. 996 (2nd Dep't 1945), reversed a conviction for withholding stolen property because the trial judge mistakenly permitted jurors to make phone calls during deliberations. Court officers were the proper conduits for such communications, which is the standard embodied in the current statute, N.Y. Criminal Procedure Law §310.10(1).

Mitchell H. Rubinstein


June 15, 2009 in Articles, Blogs, General, Weblogs | Permalink | Comments (0) | TrackBack (0)

Thursday, May 14, 2009


When I was applying to law school, I knew very little about it. The only lawyers I knew were some of my college profs and the only thing I knew about the LSAT was what I read about in Barons. The internet has, of course, changed all of this and now blogs are making even more information available. I just learned about LSAT Blog. College students and others thinking of law school may find this blog very helpful.
It is run by an individual named  Steve Schwartz who is a professional LSAT tutor in NYC. Steve just published a series of posts about the Law School Admission Council.
In this series, he reports on the fact that certain LSAT PrepTests are only available to students who take prep courses. These exams are not available to students who choose to self-study.

The series includes excerpts of email and phone conversations with LSAC representatives, as well as emails from prep companies, verifying this.

1. The Case of the Secret LSAT PrepTests

2. Official LSAT PrepTest February 1997

3. Cost of LSAT PrepTests | Self-Study vs. Course

4. LSAC's PrepTest Licensing Policy

5. Suggestions for LSAC on Restructuring LSAT PrepTest Sales

College students who are thinking about Law School and the LSAT and their parents may want to regularly visit this blog.

Mitchell H. Rubinstein

May 14, 2009 in Blogs, General, Blogs, Legal, Colleges, Law Students | Permalink | Comments (1) | TrackBack (0)

Thursday, January 29, 2009

President Obama Has A Blog

Guess what, President Obama has a blog! Its called "The Blog." Interestingly, viewers cannot comment on the blog, but they can comment on the White House web site. The Blog also does not have any links. Hey President Obama, I have a deal for you. I will link to your blog if you will link to mine!!
Mitchell H. Rubinstein

January 29, 2009 in Blogs, General | Permalink | Comments (0) | TrackBack (0)

Friday, January 9, 2009

Blogs Are Influential

Blogs Find Favor As Buying Guides is an interesting December 21, 2008 article from the New York Times that discusses something we all know. Blogs are influential. Now a study has documented this. As the article states:

The study, which polled 2,210 people and was released this fall, found that the increase in blog readership from 2004 to 2008 was 300 percent; 47 percent of online consumers now read blogs.

Half of blog readers said blogs were useful when they were considering what purchases to make, and more than half of that group said they looked at a blog just when they were about to buy something.

It is, of course, not only shopping. Legal blogs, including I hope this one, provide a tremendous amount of timely information. I point my students to blogs all the time for law review paper ideas. My legal research these days also often includes checking out relevant blog postings.

Mitchell H. Rubinstein

January 9, 2009 in Blogs, General | Permalink | Comments (0) | TrackBack (0)

Monday, September 29, 2008

Insurance For Bloggers??

The Media Bloggers Association is offering insurance for defamation, invasion of privacy and copyright infringement. Additional details are available here.

There probably is a good idea for some of the more successful blogs to purchase such insurance.

Mitchell H. Rubinstein

Hat Tip: Law Library Blog

September 29, 2008 in Blogs, General | Permalink | Comments (0) | TrackBack (0)

Saturday, July 26, 2008

Do Employer's Need A Blogging Policy??

I usually do not post law firm newsletter or client information reports because most of the time I find them to simply be a form of advertising. However, I found one such report by Littler Mendelson to be particularly worth a read-though I still consider it a type of lawyer advertising.

Philip L. Gordon and Christopher E. Cobey  in a story entitled   DOOCES WILD: How Employers Can Survive the New Technological Poker Game of Employee Blogging recommends that employers adopt employee blogging policies (you know who drafts such policies and that is where the advertising comes in).

The authors point out that a number of employees have been "dooced" (fired because of the harmful content and public availability of their blog) and employers and employees can benefit by clear employer policies. What should these policies provide? The authors state:

All blogging policies should specify the types of conduct, especially that peculiar to the public nature of blogging, which could result in discipline. Categories of conduct normally addressed in blogging policies include the following:

  • Disclaimer of Corporate Responsibility: Bloggers should be instructed to state that the opinions expressed in the blog about work-related matters are their own and have not been reviewed or approved by the employer. In the same vein, bloggers should also be instructed to state that they assume full responsibility and liability for any work-related content contained in the blog. These statements are particularly important when the employer otherwise encourages blogging by its employees.
  • Confidential Company Information: Bloggers are required to comply with the company's policies protecting its trade secrets and other confidential information and with provisions protecting trade secrets contained in any employment agreement.
  • Securities Regulations: Bloggers should not disclose "insider information" and may be required by the employer not to address any company-related activity during certain black out periods required by securities laws and regulations.
  • Company Logo/Trademark: The policy should explain when, if at all, the employee-blogger may reproduce the company's identifying marks within the blog.
  • Copyrighted Material: The policy should explain the potential civil and criminal penalties of posting in the blog copyrighted material without authorization.
  • Be Respectful: The blog should not become a vehicle for personal attacks on the company, its products, its executives, supervisors, coworkers, competitors, or competitors' products.

To avoid having the blogging policy become encyclopedic while ensuring its completeness, the policy should cross-reference related policies, such as the company's policies on the proper use of electronic resources, prohibiting discrimination and harassment, and addressing confidential and insider information.

This article is not dated, but I first saw it on Find Law on July 15, 2008. I am not sure that I would go so far as recommend that employers "must have" blogging policies, but I suppose it could not hurt to have one. Query whether such policies are a mandatory subject of collective bargaining for unionized employees and query whether such policies would cut down employer exposure in wrongful discharge type suits. Some law review commentary may well be worth exploring these issues.

Mitchell H. Rubinstein

July 26, 2008 in ADA, Blogs, General, Employment Law, Employment-At-Will & Exceptions, Law Review Ideas | Permalink | Comments (2) | TrackBack (0)

Monday, July 14, 2008

Major Decision Re: Blogging- NY Court Orders Newspaper To Disclosure Identity of Anonyomous Blogger

Ottinger v. The Journal News, ___Misc. 3d ___ (Westchester Co. July 8, 2008) is an extremely important case of first impression in New York. The plaintiff, a former Dean of Pace Law School, claimed that an anonyomous blogger defamed him on a blog maintained by a newspaper. The problem was that the plaintiff did not know the identity of the blogger. He successfully filed an action for precomplaint disclosure and the newspaper was ordered to disclose the identity of the blogger. As the court reasoned:

There is no question that the First Amendment protects the right of a person to speak anonymously. That protection, however, is no greater than the right of a person to speak when their identity is known. . ."

Judge Bellantoni then turned to the four-step test set forth by the Superior Court of New Jersey, Appellate Division, in Dendrite International v. Doe, 775 A.2d 756 (2001), to guide his inquiry.
In Dendrite, the court held that a plaintiff who wants an Internet service provider to disclose the identity of anonymous posters must first "undertake efforts" to inform the writers that "they are the subject of a subpoena or application for an order of disclosure." A plaintiff must also identify the "exact" alleged defamatory statements and "produce sufficient evidence supporting each element of its cause of action, on a prima facie basis." Finally, a court "must balance the defendant's First Amendment right of anonymous free speech against the strength" of the plaintiff's case.

A July 14, 2008 New York Law Journal article about this case is available here. I am sure that we are going to hear alot more about this case.

Mitchell H. Rubinstein 

July 14, 2008 in Blogs, General | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 8, 2008

AP sets up a toll booth for bloggers citing its stories

AP sets up a toll booth for bloggers citing its stories is an important story for us bloggers from Beta News. It reports that the Associated Press will now charge us bloggers for quoting their stories. As the article states:

The pricing scale for excerpting AP content begins at $12.50 for 5-25 words and goes as high as $100 for 251 words and up. Nonprofit organizations and educational institutions enjoy a discounted rate.

This scale is likely only a temporary solution, as it raises a truckload of questions. For instance: Suppose a news source holds a press conference, and makes a statement to several attendees including an AP correspondent. Does the citation of that quote count as an excerpt of an AP story? What if Reuters cited the same quote? Or worse, what if Reuters cited the quote differently, and a blogger noticed the difference and excerpted both for comparison? If the AP citation turned out to be in error, would the blogger still owe?

This is too bad. The A.P. is a wonderful source for information. Perhaps, if bloggers stop quoting them, they might reverse this policy.

Mitchell H. Rubinstein


July 8, 2008 in Blogs, General | Permalink | Comments (1) | TrackBack (0)

Thursday, June 26, 2008

Who Is Responsible For Blogging Comments??

Professors Sunstein and Volokh had an interesting video debate about who owns comments posted on blogs. That is an important issue and is likely to become more important as the use of blogs continues to increase. There debate can be viewed here.

Professor Leiter, who runs multiple blogs and who discussed this on his Law School Report Report Blog,  offers a simple solution to limit liablity. Limit who could post and pick and choose which comments are  actually posted on your blog.(For example, Brian has rejected a number of my comments in the past). That is exactly the problem, however. With respect to Professor Leiter, if a blog editor moderates what could be posted he or she is making a value judgement that later may be challenged.

One thing blog editors could do would be to include a disclaimer on their blog. I have one on mine which readers of this posting are authorized to copy if they would like. I am frankly stunned that most law professors do not include such disclaimers. I would even go a step further and recommend that Network owners include disclaimers. I have mentioned this to several well known professor bloggers, but no one seems to be listening. Perhaps, the Sunstein/Volokh debate may open up some professor's eyes.

In any event, this is also an excellent issue that is ripe for law review commentary.

Mitchell H. Rubinstein

June 26, 2008 in Blogs, Faculty, Blogs, General, Blogs, Legal, Law Review Ideas | Permalink | Comments (1) | TrackBack (0)

Monday, June 16, 2008

Bloggers Beware; Associated Press About To Set Fair Use Guidelines

The Associated Press to Set Guidelines for Using Its Articles in Blogs is an important June 16, 2008 N. Y. Times article by Susan Hansell that all bloggers should read. The N.Y. Times reports that the Associated Press sent letters to a blog that quoted 7 A.P. articles that ranged from 39-79 words. The A.P. apparently felt that these quotes interfeared with its copyright. Though the A.P. later said it was going to rethink its position, it is also planning to set fair use guidelines about how much of an article bloggers may quote. As the article states:

On Friday, The A.P. issued a statement defending its action, saying it was going to challenge blog postings containing excerpts of A.P. articles “when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste.” An A.P. spokesman declined Friday to further explain the association’s position.

After that, however, the news association convened a meeting of its executives at which it decided to suspend its efforts to challenge blogs until it creates a more thoughtful standard.

“We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this,” Mr. Kennedy said.

Mr. Kennedy said the company was going to meet with representatives of the Media Bloggers Association, a trade group, and others. He said he hopes that these discussions can all occur this week so that guidelines can be released soon.

Still, Mr. Kennedy said that the organization has not withdrawn its request that Drudge Retort remove the seven items. And he said that he still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.

“Cutting and pasting a lot of content into a blog is not what we want to see,” he said. “It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.”

Mitchell H. Rubinstein


June 16, 2008 in Blogs, General | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 14, 2008

Bloggers Beware Copyright Law Applies To Us Too

IEE Spectrum has a light article reminding us bloggers that copyright law applies to us and the article summarizes the fair use defense as follows:

If you copy anything that is not yours, a potential copyright-infringement problem should raise a red flag. You already know you cannot copy songs, but what about text, pictures, and drawings? Copying these works and just crediting the author will not cut it. Copying only a little of the text matters in a fair-use defense, but that does not mean that copying only one picture or a single drawing from a Web site is fair use, since each picture or drawing is itself copyrighted. That’s not the end of the line, however, since fair use also requires an analysis of several other factors, including…

Why You Take It

Who You Are

What Technology You Use

Other Factors

To determine fair use, the effect on the market for or the value of the copied work are also considered.

Mitchell H. Rubinstein

Hat Tip: Law X.O

May 14, 2008 in Blogs, General | Permalink | Comments (0) | TrackBack (0)

Saturday, April 19, 2008

Blogger Burn Out

In Web World of 24/7 Stress, Writers Blog Till They Drop is an interesting April 6, 2008 New York TImes article by MATT RICHTEL which literally discusses the fact that some bloggers simply blog too much. They are under tremendous pressure to immediately publish and face intense competition. As a result, several bloggers have literally had heart attacks. As this article states:

Bloggers at some of the bigger sites say most writers earn about $30,000 a year starting out, and some can make as much as $70,000. A tireless few bloggers reach six figures, and some entrepreneurs in the field have built mini-empires on the Web that are generating hundreds of thousands of dollars a month. Others who are trying to turn blogging into a career say they can end up with just $1,000 a month.

Speed can be of the essence. If a blogger is beaten by a millisecond, someone else’s post on the subject will bring in the audience, the links and the bigger share of the ad revenue.

I think the article may by puffing a bit. As I blogger, I fail to see how blogging places more stress on the invididual than a newspaper deadline or a brief deadline. The article makes an interesting read, however.

Mitchell H. Rubinstein

April 19, 2008 in Blogs, General | Permalink | Comments (0) | TrackBack (0)