Tuesday, July 9, 2013
The New Jersey Supreme Court issued an important just compensation decision yesterday in Borough of Harvey Cedars v. Karan, No. 070512 (N.J., July 8, 2013).
In this case, the borough condemned part of the Karan's beachfront residential property to construct 22-foot high dunes to serve as a barrier against storm tides. All parties agreed that the Karans' were entitled to just compensation - the case turned on what evidence should be admitted in determining that just compensation.
At trial, the court allowed the Karans' evidence relating to lost value due to the dunes obstructing their "oceanfront vista." The trial court denied, however, the borough's evidence relating to the enhanced value for the Karans' property attributed to the added storm protection afforded by the dunes. In the trial court's view, the storm protection constituted a general benefit. The issue before the court was whether or not the cost incurred by the Karans, the part taken plus damages to the remainder, should be offset to the benefit the Karans might receive from dune project.
The Supreme Court reversed the trial court. The court rejected the 19th century general benefits/special benefits dichotomy to hold that "just compensation should be based on non-conjectural and quantifiable benefits, benefits that are capable of reasonable calculation at the time of the taking." The trial court erred, according to the opinion, but allowing the jury to hear evidence relating to the lost value due to the dunes, but not evidence relating to increased storm protection that would potentially enhance value.
This opinion, issued unanimously, is a lengthy and detailed one and includes some history about just compensation law and the general damages/special damages rule. We cover this issue in my Damages course so I will be incorpating either this case or the concepts this fall semester.
Monday, March 11, 2013
The Dallas Morning News this weekend published an interview with Ellen Pryor, Associate Dean for Academic Affairs at UNT-Dallas College of Law, which is slated to open August 2014. The interview addresses her thoughts on opening a new state-supported law school in an environment with law school applications at a 30-year low.
Thursday, January 24, 2013
The Rochester Democrat and Chronicle reports that Bob Ertischek, an adjunct professor at Monroe Community College in Rochester, has created a social media network for people working in higher education. The site is called Profology. The site describes itself as "a place where faculty and other higher education professionals can meet, exchange ideas and work to improve pedagogy, research, classroom technology and assessment, and more." The platform actually opened in beta in 2011, and went fully operational sometime last year, but I just heard about it, so it's news to me. And now, maybe to you.
IRS and Adjuncts
The IRS noted in the Federal Register that "educational organizations generally do not track the full hours of service of adjunct faculty, but instead compensate adjunct faculty on the basis of credit hours taught." In short, most colleges are only paying part-time instructors for time spent in a classroom, and nothing for time spent grading or preparing.
The Treasury Department and the IRS are considering and "invite further comment on how best to determine the full-time status of employees" like educators, who may work many hours after students leave the classroom.
Correctly classifying adjunct, part-time or non-tenured faculty has taken on increased importance as the Affordable Care Act provisions relating to employer coverage come into effect.
Adjuncts and Governance
A joint subcommittee of the Association’s Committee on Contingency and the Profession and the Committee on College and University Governance, approved a final version of a report, "The Inclusion in Governance of Faculty Members Holding Contingent Appointments." The report includes a broad range of recommendations designed to address the fact that more and more teaching at college and universities is performed by adjunct, part-time or non-tenured faculty. Collene Flaherty at Inside Higher Ed has a summary and commentary on the report here.
Saturday, September 15, 2012
Santa Clara Law Professor recently posted both is tenure application and his application to be promoted to full professor online. It is available here. I must admit that I have never seen this type of information before and I assume that many readers also have not seen this type of material. While I understand the need to keep personnel type information confidential, posting information like this is helpful for comparision purposes.
Mitchell H. Rubinstein
Saturday, September 1, 2012
A Santa Clara Law Professor recently posted both is tenure application and his application to be promoted to full professor online. It is available here. I must admit that I have never seen this type of information before and I assume that many readers also have not seen this type of material. While I understand the need to keep personnel type information confidential, posting information like this is helpful for comparision purposes.
Mitchell H. Rubinstein
Thursday, December 23, 2010
The New York Times reported on December 22, 2010 that Eric Schmertz passed away at age 84, here. Eric was one of the most respect labor arbitrators in the country and certainly, in New York. He was involved in many major private and public sector cases. He also served as NYC Labor Commissioner, as a Member of the NYC Office of Collective Bargaining and as a Member of PERB. But public service was only a small part of his life.
I first met Eric while a student at Hofstra Law School, while he served as Dean. It was a thrill meeting him because only a few years earlier I had used his text book Personnel Administration and the Law, (2d ed 1979) in college. It is one of the only, if not my only, college textbook that I still own.
Eric was always very helpful to me in my professional career. While I was still a student, he took me with him to an arbitration and let me draft a decision. He then spent several hours with me explaining why he saw things differently and he was, of course, right. When I graduated, Eric was responsible for me getting my first job as an associate at a big firm. I will never forget that interview when the first thing the partner who interviewed me said "Eric Schmertz thinks your hot stuff."
A few years after I graduated from law school and after I left that firm, the first arbitration that I tried was before Eric. I have since tried hundreds of arbitrations. To this day, I remember that first one exactly. Eric went out of his way to explain his rulings and after the case was over, counseled me on my mistakes (and I made many; even though I won the case).
As the years passed, I did not see Eric very often. In 2006, we appeared on a panel on arbitration at a conference in London England sponsored by St. John's Law School. I spent a few days with Eric and got to know him on a personal level. St. John's is sponsoring a similar conference this summer, and I was looking forward to seeing Eric again.
A few years ago, he retired from Hofstra Law School and joined Pace Law School on a part time basis. He joked that his title was Practitioner-in-Residence which had even less status than that of an adjunct, which I was by then.
As many of you know, I have been trying to break into the teaching profession. I talked with Eric extensively and repeatedly about this. Eric really tried to help me. He personally handed my CV to some faculty he knew. When I later told him that I never got an interview, he was sincerely sorry and explained that he really did not have very much pull left in the legal academy-even at Hofstra Law School.
Eric was a rare law professor. He deeply cared about his students, about the legal profession and about Hofstra Law School. He also understood the importance of being able to practice and apply the law. Eric did not just sit on top of an ivory tower and write law review articles as many law professors do today; in fact he did not write very many law review articles.
Eric practiced what he preached. He was a labor arbitrator and a labor mediator and ethics and the legal profession was very important to him. In fact, when I took labor arbitration in law school, we studied hundreds of Eric's opinions. Eric did not teach that class (he was serving as Dean), but it was the best class I took in law school, do in part, to the variety of experiences and learning that took place just from reading what Eric wrote.
I last saw Eric about year and half or so ago. He was moderating a panel at Hofstra Law School on the Employee Free Choice Act. He was as sharp as ever and as gracious as ever to me. He was planning to give up teaching his labor arbitration class at Pace and was making plans to pass the buck to me. Unfortunately, that never materialized.
Eric touched the lives of hundreds, if not thousands of law students. His students also adored and admired him. When I was in law school, Eric drove a Jaguer that many law students took notice of with the license plate "Law Dean." One day while driving to school, I saw his car on the service road of the Meadowbrook Parkway. I pulled over to see if I could help and while I was there several students also pulled over to see if they could help. By the time I got there, Eric was not in his car. He later told me that a student pulled over and picked him up less than 5 minutes after his car broke down.
Eric will be missed greatly.
Mitchell H. Rubinstein
Saturday, September 29, 2007
Richard A. Bales, Jeffrey M. Hirsch and Paul M. Secunda just published "Understanding Employment Law" as part of the LEXIS Nexis Understanding series. Professors Bales, Hirsch and Secunda are well known labor and employment law scholars. They also edit the Workplace Prof Blog, a blog we cite to often.
Quite simply the book is a gem. Its size is perfect. It's 254 pages long, not heavy and fits right into a briefcase. The book covers all the leading cases and law review articles concerning employee/independent contractor status, employment-at-will theory and its exceptions, employment arbitration, First Amendment rights of public employees, Employee Privacy Protections, Defamation and References, Trade Secrets, FLSA, FMLA, WARN, ERISA and OSHA.
I found the sections outlining the various tests for employee status,the sections on the FMLA and ERISA to be particularly well done. The book purposely does not cover traditional labor law, employment discrimination or workers compensation.
Since the book is not a case book and is a mini-treatise, the trick is to figure out a way to assign this wonderful text to my employment law students.
Adjuncts also take note. This is not a book of legal theory. Practitioners are well advised to purchase this text for their libraries. It will save you time and your client's legal research fees.
Mitchell H. Rubinstein
Sunday, September 23, 2007
Judge Posner's Tribute To Professor Meltzer Together With His Comments About The Importance of Practical Advice In Legal Scholarship
In his tribute to famed labor law scholar Bernard Meltzer, who recently passed away, Judge Posner reflects on the importance of practical scholarship. Judge Posner's comments will appear in, 74 U. Chicago L. Rev. 435 and are available here. Judge Posner writes:
In exemplifying the traditional model of the engaged, the worldly, teacher-scholar, Meltzer reminded us of its strengths. Even at the most intellectually ambitious of the modern law schools, a large majority of students will become and remain practicing lawyers; and there is a good deal more to the practice of law than economics, or philosophy, or feminism, or theories of race. There is the knack of reading cases and statutes creatively, there is a largish body of basic legal concepts that every practicing lawyer should internalize, there is a bag of rhetorical tricks to be acquired along with a professional demeanor, a procedural system to be mastered, a subtle sense (“judgment”) of just how far one can go in stretching the limits of established legal doctrines to be absorbed. These things cannot be the entirety of the modern lawyer’s professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal education, because the law has become too deeply interfused with the methods and insights of other fields—and the law schools are still lagging badly in attempting to overcome the shameful aversion of most law students to statistics, math, science, and technology. Maybe at the law schools that have the brightest students only a third of the instruction should be in the traditional mold. But to reach that level the law schools will have to start hiring teachers who identify more strongly with the practicing profession than they do with academia.
The loss is not only in the kind of teaching that Meltzer exemplified, but also in his style of scholarship.
As usual, Judge Posner is right on. As an adjunct, I have a taste of both the the academic world and the world of practice. As Judge Posner indicates, these worlds should not be separate. Legal scholarship in recent years has drawn these worlds apart and Judge Posner's point is that we need to return to the era of great scholars like Bernard Meltzer.
Mitchell H. Rubinstein
Hat Tip: Prawfs Blawg
Friday, August 24, 2007
Interesting Article About Supreme Court's Pending Decision In Hall Street Associates Concerning Whether The Standard Of Judicial Review Of Arbitration Awards Can Be Altered By Contract
In a August 23, 2007 article by Justin Kelly appearing in www.adrworld.com (free trial available)entitled "Supreme Court Urged to Allow for Expanded Review Under FAA", Mr. Kelly does a nice job of laying out the important legal issues that are involved in the pending U.S. Supreme Court case, Hall Street Associates v. Mattel, Inc., ___U.S. ___, No. 06-989, cert granted May 29, 2007.
In this case, the Supreme Court will decide whether the parties by contract can alter the standard of judicial review under the FAA. Stated another way, the Court will have to decide whether freedom of contract principles allow parties to change the statutory standard of judicial review.
Mr. Kelly interviewed me and quotes me as follows:
Mitchell H. Rubinstein, an adjunct professor at St. John's Law School and New York Law School, said the issue of expanded review is "very important to the arbitration field because ADR is being used more often" to resolve a wide range of disputes.
Rubinstein said that if you tinker with the limited judicial review scheme, arbitration could become "a first level court" instead of a final and binding process envisioned in the FAA.
I have previously wrote a law review article about a similar topic which addresses this issue under the FAA, Altering Judicial Review Of Labor Arbitration Awards, 2006 Mich. St. L. Rev. 235 (Summer)and also blogged about Hall Street Associates here.
Mitchell H. Rubinstein