Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, February 8, 2017

Missouri Becomes 28th Right To Work State

 Governor Eric Greitens of Missouri, on Feb. 6, 2017,  signed a Bill into law which  makes Missouri the 28th right-to-work state.   Under this new law, effective August 28, 2017, employers are barred from requiring employees to become, remain, or refrain from becoming a member of a labor organization or to pay dues or other charges required of labor organization members.

Additionally, in Congress The “National Right-to-Work Act.” was recently introduced.  The bill, H.R. 785, introduced by Representatives Joe Wilson (R-S.C.) and Steve King (R-Iowa), would amend the National Labor Relations Act and the Railway Labor Act to remove language which permits agency shop agreements. 

Mitchell H. Rubinstein

February 8, 2017 in Current Affairs, Legislation, Unions | Permalink | Comments (0)

Monday, September 29, 2014

20 Best Jobs

 Glassdoor, the a jobs and career community, has identified 20 of the highest rated jobs for work-life balance. This list was compiled based entirely on employee feedback shared on Glassdoor over the past year.  The full lis is available here

Number 1 is Date Scientist. Interestingly, Law Clerk ranked number 11. Attorneys did not make the top 20. No surprise here.

Mitchell H. Rubinstein

September 29, 2014 in Current Affairs, Lawyer Employment | Permalink | Comments (3)

Tuesday, September 17, 2013

Louisiana Replaces Failed Charters with More Charters

Mike Deshotels writes here about Louisiana’s relentless drive to privatize public education. At a recent meeting of the state board of education, packed with supporters of Governor Bobby Jindal, the board continued to approve more charters to replace failing charters.

September 17, 2013 in Current Affairs, Current Events | Permalink | Comments (0)

Wednesday, August 21, 2013

Governor Cuomo announces estate tax refunds available to qualified spouses of same-sex couples

Source: Office of the Governor

On July 23, 2013, Governor Andrew M. Cuomo announced that Estate Tax refunds are available to qualified spouses of same-sex couples. Refunds may be available as a result of the recent United States Supreme Court decision, United States v. Windsor, in which the Court held that §3 of the Defense of Marriage Act (DOMA) is unconstitutional. 
Edie Windsor, a New Yorker, sued the federal government after the Internal Revenue Service denied her refund request for the $363,000 in federal estate taxes she paid after her spouse, Thea Spyer, died in 2009. She also had filed a protective claim with the New York State Tax Department asking for a similar Estate Tax refund from New York. Generally, a claim for credit or refund of an over-payment of estate tax must be filed by a taxpayer within three years from the date the original return was filed or two years from the date the tax was paid. 
Taxpayers believing that they may affected by the Windsor ruling should contact the New York State Taxpayer Information Center at 518-457-5387. 

Additional information can be found on the Tax Department’smemorandum on estates of same-sex couples.
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

August 21, 2013 in Current Affairs, Current Events | Permalink | Comments (0)

Wednesday, June 5, 2013

Best and Worst Places to Look For A Law Job

Jordan Weissmann at The Atlantic has posted an article that purports to reveal the best and place regions and states to look for a law job, measured by law graduates per job opening.  According to the study, the best region to look for a law job is the Rocky Mountain states; the worst is New England, followed closely by the Great Lakes region.  The worst state to look for a job is Mississippi, with over 10 graduates per opening.  The best? -- Alaska, the only state with no law school.

Craig Estlinbaum

June 5, 2013 in Current Affairs, Law Schools, Lawyer Employment | Permalink | Comments (0)

Thursday, April 25, 2013

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, March 11, 2013

Oregon Death Row Inmate Rejects Reprieve

What happens when a condemned murderer receives a reprieve from death row from the governor, but doesn't want it?  This question likely will be answered soon by the Oregon Supreme Court

Craig Estlinbaum

March 11, 2013 in Criminal Law, Current Affairs, State Law | Permalink | Comments (0)

Sunday, November 4, 2012

What is a State of Emergency?

Now that Sandy has technically passed us, I thought it might be useful to discuss what a State of Emergency is. We hear about Governors declaring them and often see the National Guard, but little else is explained. My understanding is that a State of Emergency gives the Governor additional powers. In NJ, the Governor order that gas only be available every other day in certain counties. In New York, the Governor suspended suspended certain statute of limitations. A copy of Governor Cuomo's Executive Order (No. 52) in this regard is available here,  Download Suspension_of_Time_Limitations_10-26-12

Mitchell H. Rubinstein

November 4, 2012 in Current Affairs, Current Events, Misc., Legal, Misc., Non-Legal | Permalink | Comments (0)

Tuesday, August 7, 2012

Attorney Lynn Stewart 10 Year Prison Sentence Upheld By 2d Circuit

You might remember Lynn Stewart. She was the attorney for the convicted Sheikh Omar Ahmad Ali Abdel Rahman. Her conviction stemmed from her repeated violations of the "Special Administrative Measures," or "SAMs," to which she agreed to be, and was, subject as a member of Abdel Rahman's legal team while he was incarcerated. Stewart executed various affirmations, under penalty of perjury, in which she agreed to abide by the terms of the SAMs, among them that she would not  "use [her] meetings, correspondence or phone calls with Abdel 5 Rahman to pass messages between third parties.

Well, after her intial partial victory on procedural grounds, she was quoted in the media as stating that she would do it again. And guess what, she got a longer sentence. In this lengthly decision, the 2d Circuit rejects her First Amendment defense. U.S. v. Stewart, ___F.3d___(2d Cir. June 28, 2012)

Mitchell H. Rubinstein

August 7, 2012 in Current Affairs | Permalink | Comments (0)

Tuesday, July 17, 2012

Madonna Faces Public Insult Lawsuit in France

From The Guardian (links added):

A recent concert in Paris has proven to have fallout for Madonna who is expected to be sued by France's Front National party for screening a video with an image of right wing politician Marine Le Pen with a swastika superimposed on her face.

The public insult cause of action in France made news recently when a French court convicted a government minister of the offense in May, fining him five euros for referring to ferry operators as crooks.

Le Pen had warned Madonna against using the image in France prior to the show, so Madonna likely made a calculated risk at her show in Paris last Saturday when she defied the warning.  The story, however, is another reminder that rights Americans take for granted, like the right to free speech, generally extend only as far as our borders.

Craig Estlinbaum


July 17, 2012 in Current Affairs, First Amendment, Music | Permalink | Comments (0)

Monday, July 16, 2012

Massachusetts court rules state law requiring daily recitation of Pledge of Allegiance does not violate students’ rights

Doe v. Acton-Boxborough Reg. Sch. Dist., No. MIC 2010-04261 (Mass. Sup. Ct. June 5, 2012), is an interesting cse. A Massachusetts trial court level has ruled that the state law requiring the daily recitation of the Pledge of Allegiance in public schools does not violate the state constitution’s equal protection clause and statutory guarantee of equal protection, or the school district’s anti-discrimination policy because of the inclusion of the phrase “under God” in the Pledge. The trial court concluded that based on the legislative history of the Pledge law, the inclusion of the phrase “under God” had not converted the recitation from a political exercise to a religious exercise.

Mitchell H. Rubinstein

July 16, 2012 in Current Affairs, Education Law | Permalink | Comments (0)

Monday, June 25, 2012

Two Symposium Issues From South Texas Law Review

Not one, but two symposia issues from South Texas Law Review hit my mailbox last week.

The first, "Physical Evidence:  Best Practices from Crime Scene to Conviction or Acquittal and Beyond," follows the Law Review's very interesting Fall 2010 live symposium.  This issue features articles by South Texas professor Catherine Greene Burnett, internationally acclaimed forensic scientist Dr. Henry C. Lee, noted forensic pathologist Cyril H. Wecht, M.D., J.D., and two Texas Court of Criminal Appeals judges -- Hon. Michael E. Keasler and Hon. Barbara Hervey, among others.

The second issue, "Amending Article Two:  Reversing the Curse" features five articles examining the lengthy and ultimately unsuccessful effort by the American Law Institute to amend Uniform Commercial Code Article 2.  Professors Henry Gabriel (Elon), Scott Burnham (Gonzaga), John E. Murray, Jr. (Duquesne) and Fred H. Miller (Oklahoma) joined K & L Gates's Holly K Towle with presentations.

Craig Estlinbaum

June 25, 2012 in Current Affairs, Law Review Articles | Permalink | Comments (1)

Monday, May 30, 2011

FERPA decision out of Arizona, arising from the Loughner case

 A trial court in Arizona held that documents scattered throughout a database, and only located by a keyword search, are not “maintained” by the institution for purposes of the Family Educational Rights and Privacy Act (FERPA). Therefore, a community college was required to disclose email messages to, from, or about a designated student. The student happend to be the one that shot Congresswoman Gifford and killed several others. The decision is reproduced below.

Hat Tip: Castagnera's Education and Employment Watch

Mitchell H. Rubinstein

C20111954 May 17, 2011
Procedural Background
Plaintiff, Phoenix Newspapers Inc., (“PNI” or “Plaintiff”) pursuant to A.R.S. § 39-121.02(A) and Ariz. R. P. Spec. Act. 4, applied for an Order directing Defendant, Pima Community College, (“PCC” or “Defendant”) to show cause why Plaintiff should not be promptly granted the relief sought in its Complaint for Statutory Special Action under A.R.S. § 39-121 et seq. (the “Arizona Public Records Law”). This matter arises out of the alleged shooting of a number of persons by Jared Lee Loughner in Tucson, Arizona on January 8, 2011. Loughner had been a student at PCC until approximately October of 2010. Plaintiff, PNI, publisher of the Arizona Republic, filed the within Complaint seeking certain documents from PCC. Specifically, by Special Action, PNI seeks access to the following documents:
a. Any and all written communications, including but not limited to email records, between or among PCC officials, staff or employees regarding Loughner, from January 1, 2009 to October 10, 2010; b. Any and all written communications, including but not limited to email records, between or among
PCC officials, staff or employees and any outside agency, public or private (e.g., law enforcement or
mental health organizations) regarding Loughner, from January 1, 2009 to October 10, 2010; and c. Documents sent or received by PCC or its employees relating to Loughner or his parents on or after September 29, 2010 to October 10, 2010 (including, without limitation, correspondence with
Loughner or his parents regarding Loughner’s suspension and terms upon which he could return).
Victoria Robertson Law Clerk
Page 2 Date: May 17, 2011 Case No.: C20111954
[Comp. ¶ 7(a-c)]. PCC asserted the email documents are student records under the Family Education and Rights Protection
Act (“FERPA”) and, therefore, refused to disclose them. PNI argued that the emails are not FERPA records and should be disclosed pursuant to this Special Action.
The Court has received and reviewed Plaintiff’s Complaint, Plaintiff’s Application for Order to Show Cause and Memorandum in Support, Defendant’s Answer to Plaintiff’s Complaint, Defendant’s Response to Plaintiff’s Application for Order to Show Cause, and Plaintiff’s Reply in Support of Application for Order to Show Cause. The Court heard arguments on this issue on April 29, 2011. Additionally, the Court received Defendant’s Notice of Submission of Documents for In Camera Review, Plaintiff’s Response to Defendant’s Notice of Submission of Documents for In Camera Review, and Defendant’s Reply to Plaintiff’s Response to Notice of Submission of Documents for In Camera Review. Finally, the Court reviewed all of the documents submitted for in camera review.
The documents submitted to the Court were divided into three groups. “Group A” documents are the result of a search of PCC’s employee email database for documents containing the word “Loughner” between the dates of January 1, 2009 and October 10, 2010. “Group N” documents are redacted law enforcement reports regarding Loughner which PCC previously released to the media. “Group N” documents are not at issue in this litigation. “Group L” documents are a compilation of documents, including email and other communications between PCC employees, which PCC provided to the United States Department of Justice in response to a grand jury subpoena. These items were also provided to Loughner’s criminal defense attorney.
FERPA was enacted to protect the privacy rights of parents and students through preventing the disclosure of students’ education records. Under FERPA “education records” are “records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. §1232g(a)(4)(A). FERPA’s range is broad, including “records, files, documents, and other materials”. If records are not protected by FERPA, and not subject to any other privilege, then they must be disclosed under the Arizona Public Records Law which creates a broad presumptive right of access to the records of government institutions.
Victoria Robertson Law Clerk
Page 3 Date: May 17, 2011 Case No.: C20111954
“The ordinary meaning of the word ‘maintain’ is ‘to keep in existence or continuance; preserve; retain.’” Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 433 (2002) (citing Random House Dictionary). FERPA records “will be kept in a filing cabinet ... or on a permanent secure database .... in the same way the registrar maintains a student’s folder in a permanent file.” Id. at 433. Documents in an employee’s or another individual’s possession, such as email in an individual email account, but never seen or preserved by the educational institution are not maintained under FERPA and therefore not education records. S.A. v. Tulare County Office of Educ., No. CV F 08-1215, 2009 WL 3126322, at *7 (E.D. Cal. Sept. 24, 2009). Emails, like assignments, are fleeting and pass through many hands and are maintained once they are placed in the student’s permanent file. Id.
Documents are not “maintained” by an educational institution under FERPA unless the institution has control over the access and retention of the record. Simply because emails exist on a central server and in inboxes at some point does not classify those documents as education records. Id. If emails can be removed from the database in question simply by the account holder deleting the email from their inbox then emails that happen to remain on the server by no action of the educational institution are not maintained by the school. Id.; See Owasso, 534 U.S. at 433. “FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar,” not individual assignments or emails. Owasso, 534 U.S. at 435.
In this case, to locate the documents in question, at least regarding Group A, PCC searched all electronic files for the word “Loughner”. This search returned several duplicate documents and documents which were purely personal or subject to other exemptions. The fact that PCC conducted a system wide database search for a word or name indicates these documents were not saved in a central location on a permanent database which could be easily accessed after a request. Instead these documents were in individual inboxes or other locations and were simply stored on the database as a necessary component of providing email, which does not generate FERPA protection. See Tulare, 2009 WL 3126322 at *7 (finding the argument that educational institution “maintains” emails in inboxes and institution’s server fails). A key-word search that returns an unknown quantity and quality of documents, does not comport with the idea of records kept by a central custodian or records kept in a central location or database, and does not conform to the idea of records kept in a filing cabinet in the records room. See Owasso, 534 U.S. at 433, 435.
Accordingly, this Court finds that documents scattered throughout a database, only located via a key- word search, are not “maintained” under FERPA. The Court concludes, therefore, that the emails contained in Group A and the emails contained in Group L are not FERPA protected records. This Court further finds that
Victoria Robertson Law Clerk
Page 4 Date: May 17, 2011 Case No.: C20111954
the GROUP N documents are not at issue in these proceedings. The Court declines to address these documents as they are outside the purview of this litigation.
Conclusion IT IS ORDERED that PNI’s Complaint for Special Action Relief is hereby GRANTED.
IT IS FURTHER ORDERED that PCC must disclose to PNI all documents submitted for in camera review as GROUP A.
IT IS FURTHER ORDERED that, as to the documents submitted for in camera review as GROUP L, PCC must only disclose email documents to PNI at this time.
IT IS FURTHER ORDERED that PCC provide this Court further clarification regarding whether the non-email documents submitted for in camera review as GROUP L are privileged under FERPA. PCC is directed to resubmit only Group L non-email documents together with a privilege log providing clarification as to the classification and origin of the documents, how the documents were stored, and specifically what, if any, privilege PCC is asserting to the documents. PCC should remove transcripts, grades, and other conventionally protected personal information from Group L documents prior to resubmission to the Court, as PNI expressly exempted such documents from this litigation. Additionally, any documents created after Loughner was no longer a student at PCC, after October 10, 2010, should be removed from Group L as those documents are also outside the scope of this litigation.
IT IS FURTHER ORDERED that PCC shall file the above pleading and resubmit Group L non-email documents for further in camera review no later than ten [10] business days from the date of this ruling. PNI shall file their response to PCC’s pleading within ten [10] business days. PCC may reply to PNI’s response no later than five [5] business days thereafter. Parties are directed to email or fax their pleadings to opposing counsel to ensure their timely receipt. The Court will review the requested pleadings and documents and, if possible, rule upon the privilege or confidentiality issues without a hearing. The Court may, however, set the matter for a hearing thereafter if the Court deems it necessary.
Victoria Robertson Law Clerk
(ID: d87f1db3-7ae7-43ab-8dba-60033f2a216a)
Page 5 Date: May 17, 2011 Case No.: C20111954
cc: David J. Bodney, Esq. John C. Richardson, Esq.
Peter S. Kozinets, Esq. Sesaly Ona Stamps, Esq. Clerk of Court - Under Advisement Clerk

May 30, 2011 in Current Affairs, Education Law, Misc., Legal | Permalink | Comments (0)

Monday, May 31, 2010

Do You Know Why BP Is Willing To Pay All Legitimate Claims? I Do.

BP has established a claims process and has repeatedly indicated in the news media that it will pay "all legitimate claims". Putting aside for the moment what a legitimate claim is, why would a company voluntarily offer to pay millions in damages? In fact, the damages may be so high that the stability of the company may be threatened. I believe that there are one or two reasons for this. First, the government may have indicated that it will assume payments after the damages reach a certain level. Second, and more likely, BP probably has insurance and it is the insurance carrier who will foot the bill. However, this bill may be even too large for the insurance carrier.

I have no inside information about any of this. However, I am surprised that I have not seen any discussion of this in the media. Perhaps this posting will help generate that discussion.

Mitchell H. Rubinstein

May 31, 2010 in Current Affairs, Current Events, Misc., Legal, Politics | Permalink | Comments (0)

Sunday, April 4, 2010

Is the recession ending??

Recessions are funny things. You do not know when it is over until, well it is over. Economists look to several signs to try to see where the economy is heading. One important indicator is job growth. Job growth has recently occurred which is a good sign. A New York Times article about the improving job market is available here.

Mitchell H. Rubinstein

April 4, 2010 in Current Affairs | Permalink | Comments (0)

Saturday, January 23, 2010

The Madoff Affair

PBS Frontline did a special report on the Madoff Affair. It includes several interesting interviews and a timeline. This material is not legal, but some professors may want to use it in class to stimulate discussions about ethics, the law and business.

Mitchell H. Rubinstein

January 23, 2010 in Current Affairs, Current Events | Permalink | Comments (0)

Sunday, October 18, 2009

Balloon Boy's Family In Big Trouble Over What Now Appears To Be A Hoax

The Balloon boys parents may face criminal and other charges now that it has been declared a hoax. A New York Times story about the case is available here. Adjunct Law Prof Blog predicted that criminal charges may be filed if the incident were declared a hoax. As the article states:

Richard Heene and his wife, Mayumi, have not been arrested, but Sheriff Alderden said that among the charges being considered were three felonies: conspiracy between the husband and the wife to commit a crime, contributing to the delinquency of a minor and an attempt to influence a public servant, the last of which carries a prison term of six years. The charges could also include a misdemeanor, filing a false report.

The sheriff said his conclusions were based on separate interviews of the Heenes and their three children as well as searches of their computers, e-mail records and documents in their home. He said the plot to send up a balloon and tell the authorities that Falcon was aboard was planned two weeks ago, with the aim of obtaining a contract to do a reality television show.

He said the authorities had asked a professor of physics at Colorado State University whether the balloon could fly with a 37-pound boy inside. The professor determined that this particular balloon could not, even though the compartment, put together with duct tape and plywood, could carry the boy.

Mitchell H. Rubinstein

October 18, 2009 in Current Affairs, Current Events | Permalink | Comments (0)

Friday, August 28, 2009

Remembering Senator Kennedy

Senator Kennedy's wonderful career has been reviewed and discussed throughout the media and in households across America. One thing that I have not seen discussed is the fact that he has been a champion for children and the disabled. He was the sponsor of the 1975 IDEA law and its later amendments which guarantees disabled children a Free and Appropriate Education.

Thank you Senator Kennedy.

Mitchell H. Rubinstein

August 28, 2009 in Current Affairs, Current Events | Permalink | Comments (1) | TrackBack (0)

Pope's June 29, 2009 Encyclical Supports Labor Unions

On June 29, 2009, the Pope issued an Encyclical where he strongly supports unions and the need for workers to receive decent wages. Download Encyclical - Caritas in Veritate

In the below passage, the Pope also stresses the importance of unions reaching out to other workers who may be less fortunate:

While reflecting on the theme of work, it is appropriate to recall how important it is that labour unions — which have always been encouraged and supported by the Church — should be open to the new perspectives that are emerging in the world of work. Looking to wider concerns than the specific category of labour for which they were formed, union organizations are called to address some of the new questions arising in our society: I am thinking, for example, of the complex of issues that social scientists describe in terms of a conflict between worker and consumer. Without necessarily endorsing the thesis that the central focus on the worker has given way to a central focus on the consumer, this would still appear to constitute new ground for unions to explore creatively. The global context in which work takes place also demands that national labour unions, which tend to limit themselves to defending the interests of their registered members, should turn their attention to those outside their membership, and in particular to workers in developing countries where social rights are often violated. The protection of these workers, partly achieved through appropriate initiatives aimed at their countries of origin, will enable trade unions to demonstrate the authentic ethical and cultural motivations that made it possible for them, in a different social and labour context, to play a decisive role in development. The Church's traditional teaching makes a valid distinction between the respective roles and functions of trade unions and politics. This distinction allows unions to identify civil society as the proper setting for their necessary activity of defending and promoting labour, especially on behalf of exploited and unrepresented workers, whose woeful condition is often ignored by the distracted eye of society.

There is a whole body of legal literature concerning Catholic labor theory. My colleague at St. John's Law School, David Gregory, has written several important articles in this area.

Mitchell H. Rubinstein 

August 28, 2009 in Current Affairs, Current Events, Misc., Legal, Misc., Non-Legal, Politics, Unions | Permalink | Comments (0) | TrackBack (0)

Monday, June 15, 2009

Federal Stimulus Law And Whistleblowers

Broad Whistleblower Protection Under The Federal Stimulus Law is an important May 26, 2009 New York Law Journal article. (free). It is about the Whistlebower provisions contained in the recently enacted federal stimulus. As the article states:

In response to concerns about waste of stimulus funds, the act includes a broad employee whistleblower provision, §1553, which provides for a private right of action for employees who claim that they have been retaliated against for making certain complaints about their employers' handling of stimulus funds. This article provides an overview of the features of §1553, highlights several aspects of the provision that are broader than other whistleblower statutes with which employers may be more familiar and examines a number of important, unanswered questions about how the law will be interpreted and applied.

As this article points out, the definition of a covered employer is quite broad and likely to reach beyond those who have a direct employment relationship with the employer receiving  stimulus funds as it also covers "any person acting directly or indirectly in the interest of an employer receiving covered funds."

I recently wrote a law review article about the stimulus package.  Obama's Big Deal: The 2009 Federal Stimulus - Labor and Employment Law at the Crossroads, 33 Rutger Law Rec. 1 (2009).

Mitchell H. Rubinstein

June 15, 2009 in Current Affairs, Employment Law | Permalink | Comments (0) | TrackBack (0)