Tuesday, December 20, 2016
This summer, South Texas Law Review published my review of Ward Farnsworth's "Restitution: Civil Liability for Unjust Enrichment." Earlier this month, I posted that review on SSRN. I really enjoy teaching restitution in my class and this book is a must-have for practitioners looking to improve or develop understanding in this often overlooked area.
For those interested, the link to the review is here.
Tuesday, September 8, 2015
University of Illinois Law Review has published an online symposium with four essays in response to Alexander Tsesis's book, Free Speech Constitutionalism. The essays are collected in the most recent issue of the journal's online companion, Slip Opinions. Contributors are Mark A. Graber, David S. Han, Helen Norton and Margot E. Kaminsky.
Saturday, June 27, 2015
The Randalls just updated their treatise entitled The Discipline Book. The 2015 edition is available in both a softcover and an e-book format.
The URL is http://booklocker.com/books/5215.html
Both versions are now 458 pages to accommodate the softcover book format. The authors substituted summaries for the "full text" of the decisions set out in the earlier editions and added new case material. There are "links" to full text of in the e-book version and "text" URLs in the softcover version.
This book remains "the" treatise on public sector employee discipline in New York State and I could not imagine any employer or union side practice without it. The book outlines the Civil Service Law, Section 75 cases, Education Law 3020-a cases as well as a whole host of other cases. It is basically an A-Z book on discipline.
This years edition is quite easy to utilize in that the table of contents is updated. Additionally information, including instructions about purchasing it, can be found in the link above.
Mitchell H. Rubinstein
Monday, May 11, 2015
Professors Clark, Dekle, Sr. and Bailey just published the second edition of Cross Examination Handbook. We reviewed the first edition of this book and this edition is even better.
I have cross examined thousands of witnesses over my 29 years of labor litigation. I can say without qualification that cross examination is particular skill which is not easily mastered. Even the most experienced lawyers often have difficulty mastering this skill.
As the title implies, this book is a handbook. It is a how too book and is designed to teach the student how to impeach a witness and how utilize a witnesses prior inconsistent statements as well as a host of of other issues. It provides concrete strategies for overcoming obstacles students and lawyers commonly face in cross examination.
This book should be required reading in any class on trial advocacy and many lawyers should maintain a copies in their library as well.
Mitchell H. Rubinstein
Professors Berger, Mitchell and Clark recently published the 4th edition of Trial Advocacy.
As the title states, this book focuses on trial advocacy. It is designed to help students learn to "think like lawyers." It focus on trial preparation and management. The book itself is divided into 14 chapters. Each chapter covers a separate trial subject area—persuasion, jury selection, opening statement, objections, etc. Each chapter presents a theoretical and practical approach to the particular skill that is the subject of that chapter, provides illustrations of practice as applied to hypothetical situations, and offers a series of practical and strategic pointers in the subject area. Most of the assignments involve role play.
We have reviewed this book before and quite simply, the authors have "done it again." Professors looking to review a book on Trial Advocacy cannot do much better than this one. Additionally, the book is so well written, that practicing attorneys would likely find this book useful as well.
Mitchell H. Rubinstein
Wednesday, August 6, 2014
Harvey Randall just updated his wonderful treatise on NYS Public Employee Discipline entitled "A Reasonable Penalty Under The Circumstances." We reviewed this book before and it just gets better and better. Every lawyer who practices in this area should have a copy of this book on his or her desk.
The publishers description is as follows:
A Reasonable Disciplinary Penalty Under the Circumstances is a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in instances where the employee has been found guilty of misconduct or incompetence. It is available in two formats - as a large, paperback print edition, and as an ebook (PDF).
Offenses considered in the book run from A [Abandoning a post without authorization] to Z [Zero drug tolerance policy violation].
The material in the was developed specifically for use by administrators, union officials, attorneys, arbitrators and others engaged in disciplinary actions involving public officers and employees serving with New York State as the employer and employees of its political subdivisions pursuant to the State's Civil Service Law, its Education Law, contract disciplinary grievance procedures negotiated pursuant to Article 14 of the Civil Service Law [the Taylor Law] and other relevant statutes, rules and regulations.
It is also a valuable resource for those involved in disciplinary actions involving public officers and employees serving with other jurisdictions.
Mitchell H. Rubinstein
Wednesday, April 30, 2014
Tulsa Law Review has published its fourth issue dedicated to book reviews. The issue includes 25 book reviews. As far as I know, Tulsa is the one of just two student-edited law journal dedicating one issue each year to book reviews -- Michigan Law Review is the other (MLR's current book review issue is here). The book review has fallen into recent disfavor among student-edited journals, leading to commentary both in law reviews and in blogs. Tulsa Law Review is ably doing its part to stem or reverse this trend.
Acknowledgement: Daniella Citron (Maryland) at Concurring Opinions.
Saturday, January 12, 2013
The Randalls have just updated their treatise entitled. I have reviewed previous editions of this work and it is now bigger and better than ever. It now spans 2127 pages and it covers just about everything; and I mean everything. The authors describe their book as "a handbook for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees. . ."
What is particularly valuable about this book is that it concentrates on recent case law. Hundreds of recent cases as well as hundreds of the leading cases and discussed. The book provides practical advice and information in an easy to understand format. Quite simply, there is no other book which you could purchase involving New York law which provides timely, practical and exhaustive analysis of discipline, constitutional issues involving discipline such as the First Amendment, evidentary issues, procedural issues, collective bargaining issues, and union issues.
Any administrator, employer, union, or attorney who is involved in public sector labor management relations in New York will want to purchase at least one copy. As in earlier editions, the book is published as an e-book which makes searching via MS Word easy and fast.
The book can be purchased for $295 and it is worth every penny. For additional information and well as purchase information can be found here.
Mitchell H. Rubinstein
Thursday, January 10, 2013
One of the classics, Elkouri and Elkouri has been updated. The 7th edition is edited by Kenneth May and is available for $325, here. Just about anyone who is an abitrator or appears before a labor arbitrator has read this book and has a copy. This edition is new and improved and is a must have. BNA's web site describes this book as follows:
- Arbitrators' consideration of external law in labor arbitration
- Legislation and litigation developing standards for evidentiary privilege as it relates to union shop stewards
- Arbitrators' views on threats and violence
- Reconsideration of the continued viability of the plain meaning rule
- New case law on the unauthorized practice of law as it relates to labor arbitration
- Revision of the discussion of state and local government arbitration and interest arbitration in light of recent changes in state law
Mitchell H. Rubinstein
Sunday, January 6, 2013
Harvey Randall has published another excellent book that all, and I mean all, lawyers, management representatives and union advocates who practice New York public sector labor and employment law will want to purchase here.
The book spans over 600 pages and focuses on the setting of an appropriate disciplinary penalty in instances where an employee has been found guilty of misconduct or incompetence. Examples of the offenses considered in this e-book runs from A [Abandoning a post without authorization] to Z [Zero drug tolerance policy violation]. The Pell Shocking the Conscience standard is reviewed as well as hundreds of decisions under Civil Service Law Section 75, Education Law Section 3020-a and labor arbitration.
Because the book is an e-book, like Mr. Randall's previous books, it can be be downloaded to your computer and then searched as a MS Word document.
Labor management officials and attorneys will want this book because it is well researched and organized and simply a time saver. Quite frankly, there is no other book like this which discussed New York law in a complete and comprehensive fashion.
MItchell H. Rubinstein
Monday, January 23, 2012
Harvey Randall, a good friend to this blog who we often cite, New York Public Personnel Law, and Eric Randall, just published a 2012 edition to their wonderful book on employee discipline. The book is available for purchase here. We have reviewed earlier editions of this book and it is better than ever. The book now spans over 1500 pages and is full of up-to-date cases. The book is only available as an E-Book which means that you download it. This also means that it is fully searchable in MS Word.
The book remains the only comprehensive work which examines New York public employment law and is one of those "must have" books for lawyers, union and management officials as well as professors who teach in this area. To give you an idea of the breadth of this work, the Table of Contents is reproduced below:
DUE PROCESS RIGHTS OF EMPLOYEES
Part One: Who is entitled to due process?
1.02 Who is entitled to due process?
1.03 Who has no due process rights?
1.04 Due process rights under Section 3020-a
1.05 The concept of tenure
1.06 “Permanent” appointments, probation and tenure in the competitive class
1.07 Permanent vs. probationer vs. provisional
1.08 Probationers’ due process rights
1.09 Temporary and provisional appointments
1.10 Jurisdictional misclassification
1.11 Budgetary classification irrelevant to due process rights of employees
1.12 Rights of employees of quasi-government entities
1.13 Veterans’ due process rights
1.14 Impartial tribunals
1.15 Specificity of charges
1.16 Immunity from discipline
1.17 Right to pre-determination hearing
1.18 Ambiguity of language in Taylor Law agreements
1.19 Right of appeal and timeliness
1.20 Absence from hearings
1.21 Notice of hearings
1.22 Name-clearing hearings
1.23 Due process and optional hearings
1.24 Removal by operation of law
1.25 Suspension without pay
1.26 Authority to discipline
1.27 Pending criminal matters
1.28 Double jeopardy
1.29 Civil rights
1.30 First Amendment rights
1.31 Freedom of information
1.32 Public hearings
1.33 Disciplinary action based on pre-employment misconduct
CONDUCTING AN INVESTIGATION
2.01 Overview: Disciplinary investigations
2.02 Handling complaints
2.03 Anonymous allegations
2.04 Fairness in investigations
2.05 Interviewing employees
2.06 Refusal to answer questions
2.07 Free speech
2.08 Self-incrimination and immunity
2.09 Lying by employees
2.10 Statute of limitations on discipline
2.11 Legal representation during investigations
2.12 Suspension with or without pay
2.13 Affect of criminal actions on suspensions
2.14 Impact of criminal action on disciplinary action, generally
2.15 Voluntary resignations
2.16 Issuing subpoenas, recording evidence
2.19 Recording investigation findings
2.21 Defamation of employees
3.01 Forms of evidence
3.02 Hearsay evidence
3.03 Standard of proof: criminal vs. disciplinary hearing
3.04 Standard of proof, Section 75
3.05 Standard of proof, Section 3020-a
3.06 Effect of criminal conviction or dismissal on discipline
3.07 Testimony by the accused
3.08 Best evidence rule
3.09 Tainted evidence
3.10 Confessions and coercion
3.11 Competent and incompetent witnesses
3.12 Opinion evidence
3.13 Foundation for testimony
3.14 Credibility of witnesses
3.15 Conflicting evidence
3.16 Employee surveillance
3.17 Judicial notice
3.18 Disclosure of personal records
3.19 Unsealing criminal records
3.20 Standard of conduct
3.22 Source of documentary evidence
3.23 Privileged communications
3.24 Using polygraph tests in disciplinary actions
3.25 Pitfalls for that a hearing officer must avoid
PROPOSING A PENALTY
4.01 The Pell standard
4.02 Court review
4.03 Lawful penalties
4.04 Recommending penalties
4.05 Using the individual’s employment history in disciplinary action
4.07 Expiration of the penalty
4.08 Whistleblower protection
4.09 Determining the penalty to be imposed
4.10 Due Process and Progressive Discipline
4.11 Substantial Evidence
4.12 The Pell Standard of Fairness
4.13 Reasons Courts Reject Penalties
4.14 Violations of the Pell standard
4.15. Penalty: reprimand
4.16 Loss of leave credits and other alternative penalties
4.17 Penalty: fine
4.18 Penalty: suspension
4.19 Penalty: demotion
4.20 Time and attendance issues
4.21 Examples of penalties imposed
OBLIGATIONS OF EMPLOYERS AND UNIONS
UNDER NEGOTIATED DISCIPLINARY PROCEDURES
5.01 Notice of discipline
5.02 The “Bill of Rights” in contracts
5.03 Absence from work during disciplinary activities
5.04 Duty of fair representation
5.05 Procedures under contracts
5.08 Pre-hearing suspensions
FILING CHARGES UNDER Section 75
6.01 Key procedural elements
6.02 Charges must be specific
6.03 Employee must receive opportunity to respond
6.04 Right to union representation
6.05 Statute of limitations
6.06 Serving charges
6.07 Pitfalls to avoid
6.08 Criticism is not discipline
6.09 Admission of guilt difficult to retract
6.10 Pending criminal charges
6.11 Choice of law
FILING CHARGES UNDER Section 3020-a
7.01 Statute of limitations
7.02 Need for investigatory report regardless of merit of allegations
7.03 Risk of libel or slander as a result of investigatory report
7.04 Name-clearing hearings
7.05 Pitfalls to avoid
7.06 Criticism is not discipline
7.07 Procedures in filing charges
7.08 Use of school attorney
7.09 Verdict shopping
7.10 The Section 3020-a process
7.11 Informing the Commissioner
7.12 Hearing panel members
7.13 Pre-hearing conferences
7.14 Characteristics of arbitration
SUSPENDING EMPLOYEES PENDING A HEARING
8.01 Suspension without pay – general considerations
8.02 Suspensions with pay, Sections 72 and 75
8.03 “Emergency” Suspensions
8.04 Suspension without pay, generally
8.05 Suspension without pay of unlicensed individual
8.06 Suspension without pay in the event of postponement of disciplinary proceeding
8.07 Suspension of a school superintendent
8.08 Unpaid suspension past 30 days: Conflict with local law
8.09 Suspension without pay, medical
8.10 Suspension without pay
8.11 Effect of criminal actions on suspensions
8.12 Mitigation of damages
8.13 Taxation of a settlement
8.14 Recoupment of cash advances
8.15 Bad faith
8.16 Employment contracts
8.17 Suspension with pay, pending criminal action
8.18 Reassignment pending discipline
8.19 Suspension without pay failure to report to work
8.20 Repayment of salary after being continued on the payroll
PENDING CRIMINAL ACTIONS
9.01 Simultaneous prosecution
9.02 Acquittal of criminal charges does not bar disciplinary action
9.03 Criminal conviction bars administrative acquittal of the same charge
9.04 Use of disclosures in criminal trials
9.05 Probationers and criminal charges
9.06 Reinstatement after acquittal
9.07 Settlement to avoid prosecution
9.08 Administrator’s immunity
9.09 Collateral estoppel
9.10 Disclosure of records
PREPARING FOR A HEARING
10.01 The settlement option
10.02 Selecting a hearing officer
10.03 Pre-hearing legwork
10.04 A pre-hearing checklist
10.05 Hearing in absentia
10.06 Leave to attend hearing
10.07 Mitigation of damages in cases of acquittal
10.08 Taxation of a settlement
10.09 Independent review of facts
10.10 Considering material in a post-hearing brief submitted by a party
10.11 Stay of arbitration
11.01 Who may appeal?
11.02 What may appeals concern?
11.03 What standards apply in appeals?
11.04 Forums for appeal
11.05 Challenging a Section 75 decision
11.06 Challenging an arbitration award
11.07 Biased hearing officers
11.08 Deadlines for appeal
11.09 Timely and untimely appeals
11.10 Outcomes of appeals
11.11 Vacating or modifying penalties: The Pell Standard
11.12 Back pay and benefits
11.13 Statute of limitations
11.14 Back salary
12.01 Termination for disability
12.02 Section 73 pre-termination due process requirements
12.03 Arbitrating Section 71 and Section 73 terminations
12.04 Other provisions of law
12.05 Considering disability claims
12.06 Termination of a probationary employee
TERMINATIONS WITHOUT A HEARING
13.01 Necessity of a license
13.02 Removal by operation of law
13.03 Disqualification for employment because of a criminal conviction
13.04 Irrelevance of criminal history
13.05 Removal after convictions
13.06 Contract violation
13.07 Denial of equal protection?
13.09 Withdrawing resignations
13.10 Name-clearing hearings
13.11 Noncompetitive class employees
13.12 Disqualification, Section 50.4 CSL
13.13 Nature of the offense
13.14 Violation of oath of office
13.15 Reversal of felony conviction
REDRESS AND REMEDIES
14.01 Delays in reinstatements
14.02 Back pay
DRUGS, DRUG TESTING AND DISCIPLINE
15.01 Reasonable suspicion
15.02 Pre-employment testing
15.03 Due process guidelines
15.04 Guidelines on employee privacy
15.05 Observer’s presence during testing
15.06 Drug testing and collective bargaining
15.08 Refusal to participate in a drug treatment program
15.09 Libel and slander
15.10 The ADA and human rights laws
SOME SPECIAL PROVISIONS OF LAW
PROVISIONAL AND PROBATIONARY EMPLOYEES
17.03 Reviewing probationary employee terminations
17.04 “Permanent probationers”
17.05 Standard of review
17.06 Bad faith determinations
17.07 Separation pay for probationary teachers
17.08 Disciplinary probation
17.09 Light duty and probationary requirements
17.10 Drug use and probation
17.11 Probation and alcoholism
17.12 Probation and stress
17.13 Extension of probation: modified duty
17.15 Extensions of the probationary period
17.16 Attaining permanent status
17.17 Date of permanent appointment and traineeships
17.18 Non-competitive class employees
17.19 Good faith determinations concerning probationary service
17.20 Notice of termination
17.21 Second probationary periods
17.22 Good faith probationary decisions
17.23 Name-clearing hearings
17.24 Tenure by operation of law
17.25 Transition from probationer to tenured
17.26 Suspension of a probationer
17.27 Rights under a Taylor Law agreement
17.28 Distinguishing between temporary and provisional appointment
The “letter of agreement” from NYC Department of Education Chancellor Klein to UFT President Michael Mulgrew concerning disciplinary actions taken against New York Department of Education personnel pursuant to §3020-a of the Education Law.
Friday, December 2, 2011
Book Review Highlight: Berger, Mitchell and Clark Evidence, Skills Stategies and Assignments for Pretrial and Trial
Marilyn J. Berger, John B. Mitchell and Ronald Clark have published another excellent law school text, Evidence, Skills, Strategies, and Assignments for Pretrial and Trial, available here. I have reviewed several of their books before, here, here,here, and they all follow a common theme. They are all practice oriented texts. They are designed to teach law students "how" to practice and are light on case law doctrine. The book itself spans 304 pages, is reasonably priced, well organized and indexed and includes a DVD movie designed to illustrate important evidentiary trial pointers. It is designed to help the student learn to master pretrial as well as trial litigation skills.
Chapter 6 of the book includes an Evidence handbook which provides an outstanding summary of the law and covers such topics as hearsay, the failure to object and prior inconsistent statements. While this is designed to be applicable to a fictional state, it does follow the Federal Rules. My one disappointment is that this chapter cites to fictional cases. I would have preferred cites to actual case law. In fairness, the book does include several cases, but I do not see a point in citing to fictional cases. It is for this reason that I recommend this book for student use, but not for use by attorneys.
But, for what it is designed to do-teach students practical skills, the book shines. The book is also soft cover and not long and drawn out which should help students learn. Any professor who is teaching a class in pretrial litigation or even Evidence would do themselves a favor by taking a serious look at this wonderful work.
Mitchell H. Rubinstein
Thursday, October 20, 2011
Professors Sarah Ricks (Rutgers Camden) and Evelyn Tenenbaum (Albany) just published a master text book for an advanced class on constitutional law. This is not your grandmothers casebook. Like several of the recent publications I have seen from Carolina Academic Press, the focus is on practice-not law school theory. Unlike so many texts which just focus on Supreme Court cases, this case book includes cases from the lower court courts as well as excerpts from briefs. The book includes simulations which involve realistic situations. The book actually helps students to learn to practice law and not just to read cases.
Of even greater delight is the accompanying teachers manual which is quite comprehensive. It includes sample syllabi, sample essay and sample multiple choice exams-with sample answers! The manual itself spans 444 pages.
The text is 724 pages long and focuses on 1983 litigation. Specifically, issues involving the 4th, 8th and 14th Amendments as well as 1st Amendment religions claims. The book is also reasonably priced at $85.00 and is available here.
If I ever have the opportunity to teach a class on 1983 litigation, this will be my text book. As I practice in this area, this book will become part of my personal library. I am sure that other lawyers will find this book useful as well.
Mitchell H. Rubinstein
Friday, September 9, 2011
In Feb. 2009, I reviewed the 2d edition of Berger, Mitchell and Clark, "Trial Advocacy, Planning, Analysis, and Strategy" 2d edition, which I highly recommended. I am pleased to again highly recommend the Third Edition which just came out in 2011 I am also pleased to recommend the companion book "Cross Examination Handbook" which also just came out in 2011 by Clark, Dekle, Sr. and Baily.
I wish law schools utilized more texts such as these. In a nutshell, the trial advocacy book teaches you how to try cases and the cross examination book teaches you about the art-and it is an art- of cross examination.
The cross examation book spans 389 pages and contains a CD with sample files and assignments. The trial advocacy book spans 619 pages and contains a DVD which is a case demonstration that is well worth watching.
Aspen's web site describes the cross examination book as follows:
- Concrete instruction on planning the winning cross-examination, such as how to select the content and mold it into a persuasive concession-seeking or impeachment cross
- Practical techniques and strategies for performing cross, including witness control, handling problematic witnesses and successfully cross-examining experts
- Illustrative cross-examinations from notable trials, such as the O. J. Simpson, Scopes, Senator Stevens, and Enron, show how to apply cross strategies and techniques
- Case files and role-play assignments provide opportunities to practice preparing and performing cross-examinations in two criminal and two civil cases
- Ethical and legal boundaries of cross-examination
- Teacher’s Manual and Actors Guide and suggested syllabi make the exercise material both teacher-, lawyer- and student-friendly
The trial advocacy book is described in turn as:
Trial Advocacy: Planning, Analysis, and Strategy conveys a clear understanding of the trial process, how lawyers think, and the strategies and techniques of trial persuasion. An accompanying DVD features trial demonstrations by veteran litigators. A regularly updated companion website provides articles, supplemental materials, downloads, and links to additional resources.
Updated throughout, the timely Third Edition provides checklists in each chapter as a useful teaching aid. Topical coverage has been expanded to include discussion of Internet interference during trial and the use of focus groups, trial simulations, and technology in trial preparation.
Trial Advocacy: Assignments and Case Files, a separate publication, contains 84 role-play assignments and is cross-referenced to Trial Advocacy: Planning, Analysis, and Strategy.
Many a lawyer can benefit from reading these two books. I have one constructive thought. Both books contain virtually no cites to cases and only occassionally cite to FRE. I would have much preferred the books if they contained footnoted authority. That way, it would be easier for a lawyer to back up a position he or she may have taken.
Mitchell H. Rubinstein
Monday, May 2, 2011
I was just sent a copy of Employee Benefits and Executive Compensation by Andrew Stumpff (Univ. of Michigan Law School) and I am impressed, very impressed. As readers may be aware, I taught Employee Benefits Law at St. John's Law School. The text I used, Medill on Employee Beneifts, was just too complicated. However, it was the best one that I could find.
Lets face it. Employee Benefits Law is complicated. This book makes does an excellent job in simplifying the law. Each chapter is essentially a treatise and then case law is followed at the end. This book is also very current as it covers Obama Care.
For instructors looking for a text on Employee Benefits, please examine this one. You will not be sorry.
Mitchell H. Rubinstein
Tuesday, April 5, 2011
I received an advance copy of Special Education Advocacy by Professors Ruth Colker and Julie Waterstone (LexisNexis 2011) and all I can say is "Wow."
This book fills a huge whole in special education scholarship. The book is not about cases or about legal theory. Rather, it is a "how to book." It is clearly designed for students in a special education clinic, but lawyers will find this book just as useful. It discusses due process complaints and provides an example. It also discusses common due process issues including the authority of hearing officers to issue remedies. The book also a useful appendix which include the IDEA, its regulations and excerpts from leading special ed decisions.
The book is softcover and is reasonably priced, around $60. It is not yet up on LexisNexis web site or available from Amazon.com. If you practice in this area or are thinking about practicing in this area, this is a must have book.
Mitchell H. Rubinstein
Sunday, March 27, 2011
Carolina Academic Press just came out with the first law school case book on Autism and the LawCases, Statutes, and Materials (2011). The authors, two lawyers, Lorri and Daniel Unumb, freely acknowledge that Autism and the Law is only taught in one class in one law school (interestingly, they do not name the law school) and their hope is that this will change given how wide spread a problme Autism has become. They are probably correct.
As you might expect, the book contains a detailed medical review of autism and the history of this diagnosis. Part One of the book focuses on health insurance, part two focuses on Medicaid issues, part 3 examines special education issues, and part 4 concludes with an examination of "other" issues such as those that arise under the ADA and mandatory vaccine issues.
The authors are definitely on to something here and I suspect that the book, which is clearly well written, will take off.
However, I am a bit curious as to why the authors chose to write the first law school book on this topic as a case book. I would have thought that a hornbook might have been a better first choice because such a text would also appeal to the larger legal community.
In any event, nice job-very nice job.
Mitchell H. Rubinstein
Friday, January 14, 2011
The Layoff, Preferred List and Reinstatement Manual (2011) - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions.http://nylayoff.blogspot.com/
Monday, September 20, 2010
I just finished reading Restoring The Power of Unions It Takes A Movement by Professor Julius G. Getman (University of Texas Law School) and I could not put it down. The book is a must read for students of labor law, labor history and practicing labor lawyers. I suspect that it will shortly become required reading in many labor relations and labor law classes.
The book, which spans 326 pages, is exceptionally well written, well researched and footnoted. Quite simply, the book is quite readable and a pleasure. One of the reasons why it is an easy read is because it is composed of 25 relatively short chapters. The book really is actually like two books. The first, documents the rise and success of HERE (Hotel Employees Rest. Employees) (now UNITE-HERE) and its President John Wilhelm whom I had the pleasure of recently meeting. Getman details the success of Wilhelm's labor philosophy and in particular, the 1980's Yale University organizing campaign and strike. To my amazement, Wilhelm's philosophy involves the total avoidance of NLRB conducted elections and involves the utilization of salts (called interns in the hotel industry) and corporate campaigns designed to convince the employer to agree to a neutrality and card check election agreement.
The second "book" involves Getman's critique of the current state of labor law. Getman, who is one of the leading labor scholars in the country, is very critical of the union access decisions and the MacKay doctrine which allows strikers to be permanently replaced. To my surprise, Getman is also not a fan of the Employee Free Choice Act which organized labor has been pushing for some time.
Getman, however, does not call for the abolishment of the NLRA and believes that it is worth saving. Getman believes that the Labor Board decisions are often the product of partisan politics and the Board needs to be composed of nonbiased experts whose independence and neutrality has been tested. Who would these Board members be? Labor arbitrators- of course. He also calls for amending the NLRA by increasing the Board's remedial power, mandating that unions be given equal time to respond to employer campaign speeches and by essentially outlawing permanent replacements. Finally, Getman calls for a specialized appeal tribunal that would hear appeals from NLRB decisions.
Getman's central theme is something that we often loose site of. Unions have to return to their roots. Unions are composed of workers and therefore, unions should be about the workers and run by the workers. Indeed, Getman in this wonderful work interviewed organizers and quoted from them extensively as he believes that they have the most important and difficult jobs within unions. With regard to this book, he did not merely conduct interviews with senior level union leadership.
Getman concludes as follows:
"For organized labor to play its proper role in turning the American dream into reality, the labor movement must be not only for the people, as most unions are, but also of the people, in ways that most unions are not. . . Members must believe, on the basis of established facts, that they have the opportunity to shape the union's actions and priorities. This is what Vinnie Sirabella practiced and preached. It is what he passed on to John Wilhelm. It is at the heart of UNITE-HERE's approach to organizing and bargaining."
Mitchell H. Rubinstein
Thursday, September 2, 2010
Dr. James Ottavio Castagnera recently published another excellent book entitled "Handbook For Student Law For Higher Education Administrators." The Book, which is softcover and spans 255 pages is available for $35.00 from the publishers website linked above. The publisher describes the book as follows:
The Handbook for Student Law for Higher Education Administrators is a practical tool, intended for administrators dealing with students in higher education, focusing principally on four-year institutions. Addressing the ever-developing relationship between higher education and the law, the book will provide the academic administrator with the means to knowledgably and confidently navigate the many legal threats and challenges facing colleges today. Using examples from real cases and scenarios from different institutions, the handbook provides sample policies, checklists, and advice that administrators can apply to a wide variety of situations, both preventatively and proactively. Also included are relevant 2008-09 amendments to the Americans with Disabilities Act and the Federal Educational Rights and Privacy Act, and each chapter includes a section on the impact of the Higher Education Opportunities Act of 2008. The Handbook for Student Law for Higher Education Administrators is a compendium of practical knowledge and guidance, useful for any administrator dealing with the legal minefield that is higher education.
The book is full of case law cites and real life situations that American Universities face every day. The book starts off with a summary of the history of higher education in this country (which is worth a read in and of itself) and then goes on to explore the legal mine field of higher education law. Some of the topics which are discussed include legal issues surrounding university admissions, financial aid, academic discipline, plagiarism, student on student harassment, and the privacy rights of students.
What makes the book particularly worth while is that it includes checklists and sample university policies. I am not aware of another book which comprehensively examines the subject. While the book is clearly designed for non-lawyer university administrators, lawyers and others interested in higher education could surely benefit.
Mitchell H. Rubinstein