Adjunct Law Prof Blog

Harvard Law Graduate at 22

Cortlan Wickliff, a native Texan and Rice University alum, has graduated from Harvard Law School at the ripe old age of 22.  Akilah Johnson at the Boston Globe has the full story.

Craig Estlinbaum

Probable Cause Order Details Charges Against Former Texas Prosecutor

On April 19, a Texas court of inquiry charged former Williamson County, Texas district attorney (and current Texas district judge) Ken Anderson with criminal contempt of court, tampering with or fabricating physical evidence and tampering with government records arising from Anderson's prosecution of Michael Morton for the murder of his wife while he was district attorney.

Quite famously it was later shown, after Morton spent 25 years in a Texas prison, that Morton did not in fact murder his wife.  Over the years, there has been volumes written on this tragic miscarraige of justice - Texas Monthly's comprehensive case coverage is as good a starting place as any for the uninitiated. 

In any event, the probable cause order entered by the court of inquiry's presiding judge along with the supporting findings of facts and conclusions of law are now available online here.  This article in the Sunday Austin American-Statesman points out that Anderson's statute of limitations defense may be the first hurdle current Williamson County prosecutors have to clear before the charges against Anderson can be brought to a jury.

Hat Tip:  Grits For Breakfast

Craig Estlinbaum

Election Day-Please Remember To Vote

This is written to remind everyone that today is Election Day. No matter who you support, you have the opportunity to make your voice heard by voting. 

Mitchell H. Rubinstein

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

Fifth Circuit Upholds Texas Open Meetings Act

The Fifth Circuit Court of Appeals Tuesday issues a 3-0 decision upholding the Texas Open Meetings Act (TOMA) over a First Amendment free speech challenge.  The case is Asgeirsson v. Texas Attorney General, No. 11-50441 (5th Cir. Sep. 25, 2012).

TOMA provides that most government meetings be open to the public, and provides that violations are punishable by a $500 fine and up to six months in county jail.  Asgeirsson and other municipal officials challenged this penalty as violating free speech.   The appellate panel rejected the argument, finding the prohibitions against private meetings to be a permissible, content-neutral time, place or manner restriction.  The court also rejected claims that the TOMA public meeting requirement is unconstitutionally overbroad or vague. 

More at Grits For Breakfast and Dallas Morning News Investigates Blog.

Craig Estlinbaum

Employee Wellness Programs

More and more employers are adopting Employee Wellness Programs. In my book, that is a win win for all. An interesting wellness infographic that was we just published, is titled 'The State of Corporate Wellness Programs in America" and is full of interesting statistics that researchers may find helpful. It is available here.

Mitchell H. Rubinstein

Is Maternity Leave Becoming Shorter and Shorter

Maternity Leave? It is More Like a Pause is an interesting July 20, 2012 article from the New York Times. The article points out that more and more executive women are taking short maternity leaves. Sometimes it is measured in weeks-not months. As the article states:

                Like many women, Mrs. Stern has followed the news that Marissa Mayer, the new chief of                 Yahoo, is pregnant with her first child, due in October. Ms. Mayer, 37, told Fortunethat her                 maternity leave would be “a few weeks long, and I’ll work throughout it.”

                With those nine words, she opened a new front in the debate over work-life balance and that                 nettlesome phrase “having it all.” The debate was already simmering in the wake of                 an article in The Atlantic, “Why Women Still Can’t Have it All,” by Anne-Marie Slaughter, a                 Princeton professor who had been director of policy planning at the State Department but                 found, as she wrote, “that juggling high-level government work with the needs of two                 teenage boys was not possible.”

 I for one do not believe that this is a good thing for society, but I understand.

Mitchell H. Rubinstein

 

 

California Senate passes legislation barring employers and colleges from requiring access to social media passwords

 In May, the California Senate passed the Social Media Privacy Act, S. 1349, in a 28-5 vote.This Bill would bar private and public postsecondary educational institutions and employers from requiring, or formally asking students, employees, and applicants, to disclose their user name and account password for social media accounts.

It would be interesting to see if this Bill is enacted into law. Employers who require employees to disclose their passwords raises interesting legal issues. Law review commentary would be most welcome.

Mitchell H. Rubinstein

Reportedly Teacher’s aide challenges Michigan district in arbitration claiming she was suspended for refusing to provide online passwords

According to a news report in the South Bend Tribune, a teacher’s aide is in a legal battle with her school district for suspending her from her position after refusing to give the district access to her Facebook page.  It appears that the matter is headed for arbitration. 

Source: South Bend Tribune, 3/28/12, By Kelli Stopczynski (WSBT TV)

The Downside Of Recognizing Gay Marriages

As Same-Sex Marriage Becomes Legal, Some Choices May Be Lost is an interesting July 8, 2011 article from the New York Times. It points out that there may be some negative consequences to gay individuals who live in a state that recognizes gay marriage and decide to get married. 

As the article states:

“There are certainly reasons why a couple may not wish to marry,” added Camilla Taylor, marriage project director at Lambda Legal. “People with certain immigration statuses might want to think very carefully before getting married. There are some types of visas that are meant to be temporary, and if you get married to someone who is a citizen, it could flag your renewal application and reflect your more permanent decision to stay.”

When it comes to adopting a child, couples may run into trouble if they are trying to adopt from a place that restricts same-sex married couples from adopting. Having one parent adopt while still single may be easier. “If you want to be able to answer honestly in paperwork, multiple interviews and background checks, then you won’t want to get married,” Ms. Taylor said, adding that many foreign countries ban adoptions to same-sex couples.

Marrying could also have serious implications for couples who relocate to a nonmarriage state, and ultimately decide to split up. Getting a divorce can be complicated, since one member of a couple may have to return to the gay marriage state and live there before their split can be completed.

There also certainly employment law implications of gay marriage with respect to pension and health insurance benefits as well as FMLA leave benefits. Don't get me wrong, I believe that anyone should be able to get married; but this is an interesting article non-the-less.

Mitchell H. Rubinstein

 

Surprise Surprise New College Grads Not Doing Well In This Economy

Many With New College Degree Find Job Market Humbling is an interesting May 18, 2011 New York Times article. It documents something we all know. The job market is bleak for new college grads with about only 50% of them finding employment in jobs that require a college degree. The article includes the following chart:

Information and Copies of Legal Documents Concerning Wisconsin Union Busting Law

The Wheeler Report contains copies of documents concerning the Wisconsin Union Busting law, i.e, known by the Tea Party as the Budget Repair Bill. This is a wonderful resource where you can find copies of the pleadings, briefs and court decisions. Researchers will find this cite of great assistance.

Mitchell H. Rubinstein

Union Busting In Wisconsin And In Other Parts of the Country

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

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

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

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

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

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

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

Mitchell H. Rubinstein

St. John's Center For Labor and Employment Events

 

The Center for Labor and Employment Law is pleased to invite you to these engaging and informative September events:

A Reception and Discussion on the Future of Labor Unions in honor of labor law expert Julius G. ("Jack") Getman's new book, Restoring the Power of Unions: It Takes a Movement.

Thursday, September 16, 2010
5:30- 7 p.m.
St. John's Manhattan Campus
101 Murray Street
New York, NY 10007
Cocktail Reception

Welcome
Michael A. Simons
Dean and
John V. Brennan Professor of Law and Ethics
St. John's School of Law

David L. Gregory
Executive Director
The Center for Labor and Employment Law
Dorothy Day Professor of Law
St. John's School of Law

Featured Speaker
Julius G. Getman
Earl E. Sheffield Regents Chair Professor of Law
University of Texas School of Law

Discussants
Frederick D. Braid ‘71
Partner, Holland & Knight, LLP

Cynthia L. Estlund
Catherine A. Rein Professor of Law
New York University School of Law

Q & A

Book Signing

Please RSVP online by Wednesday, September 15, 2010.

14th Annual Management Lawyers' Colloquium jointly presented with the Law School's Labor Relations and Employment Law Society

Wednesday, September 22, 2010
5:30 p.m.
The Mattone Family Atrium
St. John's School of Law, Fourth Floor
8000 Utopia Parkway
Queens, NY 11439

Welcome
Michael A. Simons
Dean and
John V. Brennan Professor of Law and Ethics
St. John's School of Law

David L. Gregory
Executive Director
The Center for Labor and Employment Law
Dorothy Day Professor of Law
St. John's School of Law

Panel Discussion
Frederick Braid '71 (Holland & Knight)
James Clark '94 (Cullen and Dykman)
Philip Davidoff '91 (Ford & Harrison)
Frances Green '87 (Epstein, Becker & Green)
Raymon Mak '83 (Epstein, Becker & Green)
Craig S. Roberts '97 (Jackson Lewis)
Anna Shields '04 (Jackson Lewis)
Evan J. Spelfogel (Epstein, Becker & Green)
Ernest Stolzer '79 (Bond, Schoeneck & King)
Christopher Valentino '00 (Jackson Lewis)

Presentation
Scholarship for Excellence in Labor and Employment Law 
The fifth annual academic merit scholarship award offered by the Jackson Lewis law firm in memory of former partner Alan C. Becker, Esq.

Please RSVP online by Friday, September 17, 2010.

Wal-Mart To Invest In Online University

Wal-Mart to Offer Workers College Education is an interesting June 3, 2010 New York Times article. Wal-Mart will offers some of its employees a 15% discount on an online education program that it is investing in. Seems to me it is about Wal-Mart's investments and not Wal-Mart's employees.

Mitchell H. Rubinstein

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

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

Solis Pushes Agenda to Bolster Labor is an interesting Dec. 8, 2009 Wall Street Journal article which quotes my college buddy Deputy Secretary of Labor Seth Harris. It is about how the U.S. Department of Labor plans to enact new rules which will give more power to both organized labor and workers. As the article states:

Ms. Solis's agenda will promote rules requiring employers to increase disclosure to workers on how their pay is computed, strengthening affirmative action requirements for federal contractors, and compelling greater disclosure from employers about their dealings with consultants who advise the companies on how to deal with workplace unions or unionization attempts.

Currently employers and consultants are not required to report "advice" they get from consultants, but the Labor Department said in a statement that this filing exception should be narrowed so employees will have a more transparent view into what employers are doing in response to union matters.

The agency "is going to explore that exception and try to more accurately define what advice means," Deputy Labor Secretary Seth Harris said in an interview. More broadly, "Our goal is that through greater openness and transparency, we increase compliance without having to send an investigator into the workplace."

Mitchell H. Rubinstein

Unemployment Hits 10.2%

The New York Times reported on November 6, 2009 that Unemployment hit 10.2%. That is the highest level in 26 years. The full article is available here. The article states:

In the six decades since the government began compiling such data, the highest level of unemployment came at the end of 1982, when it hit 10.8 percent. Despite the widespread assumption that the recession has already ended, and even as the economy has resumed growing, the government’s latest snapshot of the labor market released Friday testified to the uncomfortable truth that expansion had yet to translate into jobs.

“The guy on the street is going to ask, ‘What recovery?’ ” said Stuart Hoffman, chief economist at the PNC Financial Services Group in Pittsburgh. “The job market is still in reverse.”

The sharp rise in unemployment — which climbed from 9.8 percent in September, as the nation lost another 190,000 net jobs — intensified pressure on the Obama administration to show results from the $787 billion package of spending measures unleashed early this year to spur the economy.

Mitchell H. Rubinstein

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