Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Saturday, December 10, 2011

Federal district court rules Pennsylvania school district not liable for peer bullying

Kirby v. Loyalsock Twp. Sch. Dist., ____F.Supp.2d____ (M.D. Pa. Sept. 6, 2011), is an interesting case. A Pennsylvania lower federal court granted summary judgment in favor of a school district and individual school officials in a suit brought by a former student who claimed the defendants violated her constitutional rights to free association, equal protection, and procedural and substantive due process because school officials failed to discipline the students who were bullying her. Because it found that the student had failed to establish as a matter of law that her constitutional rights were violated, the court declined to address the school officials’ claim that they were entitled to qualified immunity from the suit. The cour also concluded that the school district could not be held liable under the theory of municipal liability, based on the manner in which the officials enforced the school district’s anti-bullying policy, because the court had ruled that the officials had not violated the student’s constitutional rights.

Bullying remains one of the "hot" legal issues today and law review commentary is always welcome.


Mitchell H. Rubinstein


December 10, 2011 in Education Law, Law Review Ideas | Permalink | Comments (0)

Monday, December 5, 2011

More Offices Allowing Employees To Purchase Their Own Tech Equipment

More Offices Let Workers Choose Their Own Devices is an interesting September 22, 2011 New York Times article. As the title states, more companies are allowing workers to purchase their own technology at company expense. 

Is this a good idea? On some level, yes-and that is certainly the tenor of the article. But there are two may problems with having the employee purchase the equipment and being reimbursed later. First, there is the issue of security. I do not know much about technology so I cannot further comment.

But, there is also an employment law issue. If the company provides the equipment, case law provides that the employees do not have a reasonable expecation of privacy. Therefore, employers can, and often do, mointor email and the like. So, does an employee have a greater expecation of privacy if he purchases the equipment and is simply reimbursed? Maybe.

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

Mitchell H. Rubinstein

December 5, 2011 in Employment Law, Law Review Ideas, Technology | Permalink | Comments (0)

Monday, November 14, 2011

2d Cir Upholds Ban Of School District's Use Of Schools For Religious Purposes


Bronx Household of Faith v. Board of Educ. of  the City of New York, No. 07-5291 (2d Cir. Jun. 2, 2010), is a major decision. The Second Circuit held that the New York City Board of Education’s (NYCBOE) policy prohibiting the use of school facilities for “religious worship services” does not violate the First Amendment’s Free Speech Clause. Having determined that NYCBOE had created a limited public forum, the majority concluded the policy satisfied the standard that restrictions imposed by the forum be viewpoint neutral and reasonable in light of the purpose served by the forum.

Mitchell H. Rubinstein

November 14, 2011 in Constitutional Law, Education Law, Law Review Ideas | Permalink | Comments (1)

Supremes Grant Cert In Obama Care Case

Details here

Mitchell H. Rubinstein

November 14, 2011 in Employee Benefits Law, Law Review Ideas | Permalink | Comments (0)

Monday, November 7, 2011

Lawyers Beware. Blogging May Be Considered To Be Lawyer Advertising

Virgina State Bar's Crackdown on Lawyer's Blog Raises Questions is an important undated article in the Washington Post.  It discusses a situation where the Virginia State Bar brought a charge of misconduct against a criminal lawyer, in part, because of his postings on his blog. Apparently, they were written in such a way to constitute lawyer advertising triggering the need to include a disclaimer. As the article states:

One purpose of the Web site is to market the firm and attract business, so any discussion of Hunter’s cases is considered advertising and must include a disclaimer “that puts the case results in a context that is not misleading,” the charge said.

Hunter’s case, which is scheduled for a hearing Oct. 18, appears to be the first time the Virginia State Bar has lodged a formal charge against an attorney over blogging and whether it violates advertising rules. State bar counsel Edward Davis would neither confirm nor deny the existence of previous charges against lawyers over blogs and advertising, but there is no record of disciplinary action against Virginia attorneys regarding the matter, according to the bar’s archives of disciplinary actions dating back to 1999. The bar can suspend or disbar attorneys found in violation of legal ethics.

The blog can be found here. 

This raises many interesting legal issues ripe for law review commentary.

Mitchell H. Rubinstein 

Hat Tip: New York Public Personnel Law 


November 7, 2011 in Blogs, Legal, Law Review Ideas, Lawyers | Permalink | Comments (0)

Saturday, November 5, 2011

Small Change-Big Deal Lawsuits

Prawfs Blawg ran an interesting posting on small change lawsuits. Lawsuits involving nominal amounts of money which made there way to the Supreme Court and established some type of important precedent. The author, Professor Jay Wexler asks readers if they know of other cases and whether this is a viable book idea. 

Small change cases happen all the time; particularly with respect to lawsuits financed by some advocacy organization. Additionally, if the party is facing a small fine, such as the $5.00 criminal fine in  Wisconsin v. Yoder, the case holding that the Wisconsin Amish had a right to keep their older kids out of school despite a state mandatory attendance law-then litigants may be more willing to fight. 

Nominal cases occur all the time in employment discrimination. Often times they effectively become cases about attorneys fees because attorneys fees in such cases can be awarded. 

As for a book, who would purchase it? It might be a better idea to discuss this in a law review or perhaps bar journal article. Anyone have any other thoughts?

Mitchell H. Rubinstein

November 5, 2011 in Law Review Ideas, Misc., Legal | Permalink | Comments (0)

Tuesday, October 18, 2011

New York Considering A Loan Repayment System Where Portion Of Student Loan Is Forgiven In Exchange For Representing Poor

Under Plan, Lawyers Who Counsel Poor Would Get Loan Help is an interesting Oct. 18, 2011 New York Law Journal article. Under the proposal, New York would somehow reimburse or foregive student loans in exhange for legal services for the poor. Sounds good doesn't it?? But it is a bad idea, a very bad idea for the following reasons.

First, as the article points out there is a problem with supervision. Are you now going to create an agency to supervise lawyers? Do you really think that newly minted JD's are competent to independently practice law? 

Second, there is an employment problem. If they are not on their own and are supervised, who are there employers? Are they protected by the nations employment law? Are they public sector or private sector workers? 

Law review commentary on this grande idea would be most welcome.

Mitchell H. Rubinstein


October 18, 2011 in Law Review Ideas, Lawyer Employment | Permalink | Comments (0)

Sunday, October 16, 2011

Discrimination Against The Unemployed

We all know the saying, “you need a job to find another job.” To the extent this adage is given credence it makes it more difficult to find a job. On March 11, 2011, New Jersey N.J.S.A. 34:8B-1, designed to eliminate this barrier in today’s job market.  

Query, whether this statute would extend to employment decisions amongest applicants based upon employment status. An unemployed individual has to be considered under this statute, but when it comes down to two individuals can the employer base its decision on the fact that one applicant is working?

Law review commentary on this important statute would be most welcome. Of course, this statute is only applicable in New Jersey.

Mitchell H. Rubinstein


October 16, 2011 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Sunday, October 9, 2011

Title VII standard for materially adverse employment action applies to FMLA retaliation claim


Millea v. Metro–North R.R. Co.2011 WL 3437513 (2d Cir. Aug. 10, 2011).

October 9, 2011 in FMLA, Law Review Ideas | Permalink | Comments (0)

Thursday, September 8, 2011

Federal district court in California grants preliminary injunction allowing student with autism to be accompanied by service dog at school

C.C. Cypress Sch. Dist., ___F.Supp. 2d ____ (C.D. Cal. Jun. 13, 2011), is an interesting case. A federal district court issued a preliminary injunction allowing a student with autism to be accompanied by his service dog at school. The court concluded that the student had demonstrated a likelihood of success on the merits of his Americans with Disabilities Act (ADA) claim that the dog is a service dog under the ADA and the school district failed to demonstrate that its educational program would be fundamentally altered if the dog is allowed to accompany him to school. The court also found that the student had satisfied the other three elements required for issuance of injunctive relief.

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

Mitchell H. Rubinstein


September 8, 2011 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (1)

Monday, August 29, 2011

3rd Cir. Holds School Dist. Violated 1st A For Disciplining Students For Off Campus Speech

J.S. v. Blue Mountain Sch. Dist.
, ____F.3d____(3d Cir. Jun. 13, 2011), is an interesting case. The Third Circuit held ruled that a school district violated a student’s First Amendment free speech rights when it disciplined her for creating a a parody MySpace profile page of her middle school’s principal off-campus on a home computer that contained vulgar, lewd and false statements about the principal. The court’s decision is one of two en banc rulings issued on the same day and finding that the school district defendant had violated the student’s First Amendment right to free speech when it disciplined the student for off-campus speech that took place online. 

Law review commentary on this issue would be most welcomed.

Mitchell H. Rubinstein

August 29, 2011 in Education Law, Law Review Ideas | Permalink | Comments (0)

Saturday, July 16, 2011

References to employee as a pedophile not gender based; insufficient basis for Title VII hostile work environment claim

Christine v Mortgage Investors Corp, ___F. Supp.2d____(M.D.Fla, May 23, 2011) is a tough case. A male employee who claimed that his supervisors and coworkers made repeated comments and innuendos that he was a pedophile was unable to pursue his Title VII claim alleging that he was subjected to a sexually hostile environment because the alleged conduct was not based on his gender.  As the court explained:

Upon review of the complaint, the Court finds that [the plaintiff] has not alleged facts that show that the harassment disadvantagedmale  employees in general; instead, his allegations show only thathe, personally, was being ridiculed and accused of being apedophile.  While the conduct at issue is offensive andinappropriate, it is not actionable under Title VII.  See Griffithv. City of Des Moines, 387 F.3d 733, 739 (8th Cir. 2004)(notingthat the plaintiff perceived that he was being ridiculed andostracized for being a child molester, but that discrimination onthat ground is not prohibited by Title VII).  Accordingly, MortgageInvestors Corp.’s motion to dismiss Christine’s sexual harassmentclaim is granted.

Plaintiff may have a defamation cause of action. However, the court declined to exercise supplemental jurisdiction over that claim.

I think there are two lines of cases which the court does not recognize. On the one hand you have the Miller case from California.  As I recall, that court held that whether or not a sexual harassment claim can be made out depends upon the degree of ridicule and harassment.  On the other hand you have decisions like this one and the 2d Circuit decision in DeCintio v. Westchester Co. Medical Center which limit Title VII to gender based claims.

Law review commentary would be most welcome.

Mitchell H. Rubinstein

July 16, 2011 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Friday, July 8, 2011

Chief Justice Roberts Comments On Legal Scholarship Today

I am delighted to see that Chief Justice Roberts recently commented on contempory legal scholarship. The American Constitution Society Blog provides a picture of Chief Justice Roberts and summarizes his speech as follows:

Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he is on the same page with Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit, who believes there is a great “disconnect between the academy and the profession.”

Roberts continued, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

A law professor responded   "more often than not, published law review articles offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decision-making on how law develops in the courtroom.”

Chief Justice remarks are right on point. The legal academy focus on theory and is largely composed of professors who never practiced law. Law schools look to hire someone with a JD/Ph.d from Ivy league school and give little weight to litigation or other legal experience. My own law review scholarship has been crticized by some as "practice orientated." Law review scholars often cite each other and some do not even cite cases. 

Everyone I talk with about this agrees that there is too much focus on theory. But when are the law schools going to change? Unfortunately, I do not see change happening. 

Mitchell H. Rubinstein


July 8, 2011 in Law Professors, Law Review Articles, Law Review Ideas, Law Schools, Supreme Court | Permalink | Comments (25)

Thursday, June 30, 2011

Great Article On Public Sector Bargaining Crisis In This Country

Joe Slater, one of the most important scholars whose focus is public sector labor law, recently published an important article for the American Constitution Society, The Assault on Public Sector Collective Bargaining: Real Harms and Imaginary Benefits (2011). As the article states:

Perhaps the most striking political development in 2011 is the widespread and aggressive assault on public sector collective bargaining rights.  While the most highly publicized and most significant changes have taken place in Wisconsin and Ohio, moves are afoot in a number of states.  These changes represent the most radical revisions to labor law in the U.S. in decades, and they have set off a political firestorm.This brief will argue that these attacks are deeply misguided.  They serve no purpose beyond a partisan attempt to weaken a key supporter of the Democratic party and they do not address budget deficits.  Instead, they take away a core right that has been recognized in the vast majority of the United States for up to half a century, a right that is considered fundamental in much of the industrialized world, a right that helps individual teachers, firefighters, police officers, and other public employees in their day-to-day lives at the workplace, a right that helps sustain a vital middle class, and a right that helps ensure talented and skilled people will find public service an attractive career option.

I am sure that Joe will be turning this piece into a law review article. 

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

June 30, 2011 in Articles, Law Review Ideas, Public Sector Labor Law | Permalink | Comments (0)

Thursday, June 23, 2011

Inadvertent Disclosure

In these days of email and computers, it is not unusal for an attachment to be missed and therefore, certain documents are inadvertentedly disclosed. In New York, the new Rules of Professional Conduct, Rule 4.4(b), requires that attorneys who recieve such documents to notify the sender. As this article points out, this rule raises more questions than it answers and I am sure that we are going to see more cases addressing this important issue.  Download Inadvertent Disclosure

Law review commentary would be most welcome.

MItchell H. Rubinstein

June 23, 2011 in Articles, Law Review Ideas, Litigation | Permalink | Comments (0)

Thursday, June 16, 2011

Cyberbullying and Intentional Infliction of Emotional Distress

The New York Law Journal published on Feb. 9, 2011, an excellent article on Cyberbullying and Intentional Infliction of Emotional Distress,  Download OUTSIDE COUNSELCyberbullying and Intentional Infliction ofEmotional The article provides in part:

Cyberbullying typically takes place when at least one individual uses technology to harm or threaten another. Some conduct has become so commonplace that a whole new parlance has developed to describe a variety of cyberconduct. The conduct may take the form of "cyberstalking" (following victims when they go online), "impersonation" (hacking into a victim's computer or creating fictitious profiles including pretending to be the victim, signing the victim up for e-mail lists such as junk mail or pornography, or performing illegal or immoral acts in the name of the victim), "denigrating" or "dissing" (spreading untrue gossip or rumors about a person), "sending malicious code" (forwarding the victim a computer virus), and "outing" (sharing intimate information about the victim with others without the victim's consent).2Extreme cyberbullying can lead to actions seeking civil redress based on the tort of intentional infliction of emotional distress and even criminal prosecution. In Kaisman v. Fernandez,3 it was alleged that defendants caused plaintiff's name to be improperly linked to pornographic websites on certain Internet search results. In an illustrious case in Missouri, the mother of a 13-year-old girl, who did not get along with another 13-year-old girl named Megan Meier, set up a fictitious social network profile of an actual 16-year-old boy, contacted and initially flirted with Megan, but ultimately told her that "he" no longer liked her and that the world would be a better place without her. Thereafter, Megan committed suicide and criminal prosecution against the mother of the other girl ensued.Many states have passed legislation relating to cyberbullying, but for the most part, this legislation relates to criminal penalties or prohibitions concerning school-related activities. This article will examine how civil theories and in particular the tort of intentional infliction of emotional distress may apply in cyberbullying situations.

I am sure we are going to see more of this. 

Mitchell H. Rubinstein

June 16, 2011 in Articles, Law Review Ideas | Permalink | Comments (0)

Monday, June 13, 2011

New York Wage Notice, Tips and Independent Contractor Legislative Changes

Joseph P. Furfaro and Risa M. Salins recently published an excellent article entitled New State Laws Cover Wage Notices, Tips, Independent Contractor Status (New York Law Journal Feb. 4, 2011)  Download Wage theft article 

The article discusses several recent legislative enactments in New York, including the Wage Theft Protection Act, S. 838, which is basically imposes  a notice and written wage statement requirement, The Hospitality Industry Minimum Wage Order which deals with tip credits for minimum wage purposes, New York State Construction Industry Fair Play Act, S. 5847-F, which creates a rebuttable presumption in favor of employee status for individuals performing services for construction industry contractors.

Mitchell H. Rubinstein

June 13, 2011 in Articles, Employment Law, Law Review Ideas | Permalink | Comments (0)

Saturday, June 4, 2011

Software to Replace Lawyers? It's true.

Armies of Expensive Lawyers , Replaced By Cheaper Sofware is an interesting March 4, 2011 New York Times article. It is about how "e-discovery" can be used to find documents with key words or phrases. This cuts down dramatically on lawyer time. This can save the client a significant amount of money. E discovery is also much quicker. The  article states:

But that was in 1978. Now, thanks to advances in artificial intelligence, “e-discovery” software can analyze documents in a fraction of the time for a fraction of the cost. In January, for example, Blackstone Discovery of Palo Alto, Calif., helped analyze 1.5 million documents for less than $100,000.

Some programs go beyond just finding documents with relevant terms at computer speeds. They can extract relevant concepts — like documents relevant to social protest in the Middle East — even in the absence of specific terms, and deduce patterns of behavior that would have eluded lawyers examining millions of documents.

“From a legal staffing viewpoint, it means that a lot of people who used to be allocated to conduct document review are no longer able to be billed out,” said Bill Herr, who as a lawyer at a major chemical company used to muster auditoriums of lawyers to read documents for weeks on end. “People get bored, people get headaches. Computers don’t.”

This raises a host of legal issues. Is e discovery sufficient? With respect to a lawyer who engages in e-discovery as opposed to regular discovery, is he or she breaching the standard a care? What if something is missed or a mistake occurs?

Law review commentary on the litigation issues raised by e discovery would be most welcome. 

Mitchell H. Rubinstein


June 4, 2011 in Law Review Ideas, Lawyers, Litigation | Permalink | Comments (2)

Tuesday, May 31, 2011

Cause of Action For Reverse Discrimination Stated Against NYC Department of Education

United States v. New York City Dep’t of Educ., ____F.3d____ (2d Cir. May 5, 2011), is an interesting case. The Second Circuit held, with one judge concurring in the judgment, that a group of primarily white male custodial employees has stated a valid  “reverse discrimination” claim under Title VII, § 703, based on a voluntary settlement agreement entered into by the New York City Department of Education and the federal government.  The agreement awarded retroactive seniority to a group of minority custodial employees who are African-American, Hispanic, Asian and female. The decision is the first to apply Ricci v. DeStefano, 129 S. Ct. 2658 (2009), to a reverse-discrimination challenge to a Title VII settlement agreement.

The case dealt with hiring employees based upon the results of a test. Miniorities had not done as well on this test as white applicants and eventually a settlement agreement was entered into which awarded retroactive seniority to minority applicants. The court stated that  the agreement’s retroactive seniority provisions would violate Title VII’s disparate treatment prohibition unless NYCDE could mount an affirmative defense showing that the settlement agreement: (1) amounted to a valid affirmative action plan; or (2) was justified in order to remedy a disparate impact violation. It rejected the affirmative action defense because NYCDE was providing a prospective benefit to specific individuals rather than a defined group.

As to the second defense, the court noted that Ricci controlled. ”[W]e hold that, under Ricci, a  ’strong basis in evidence’ of non-job-relatedness or of a less discriminatory alternative requires more than speculation, more than a few scattered statements in the record, and more than a mere fear of litigation, but less than the preponderance of the evidence that would be  necessary for actual liability.”

The court added, “This is what it means when courts say that the employer must have an objectively reasonable fear of disparate-impact liability.” It cautioned that as part of the test the employer must demonstrate its action is “necessary” to avoid disparate impact liability.

Mitchell H. Rubinstein

May 31, 2011 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Saturday, May 14, 2011

Former teacher did not enjoy constitutionally protected right of privacy from public disclosure of fibromyalgia


Matson v. Board of Educ. of the City of New York, ____F.3d____ (2d Cir, Jan. 11, 2011), is an interesting case. The Second Circuit held that a former teacher failed to state a valid cause of action under § 1983 for violation of her right to privacy based on the school district publicly disclosing that she suffers from fibromyalgia. The court concluded that the teacher does not enjoy a constitutionally protected privacy right with respect to that particular medical condition, which, though serious, was not equivalent to HIV/AIDS or transsexualism, which would carry a social stigma if disclosed. The teacher also did not allege sufficient facts to suggest that disclosure of her fibromyalgia had exposed her to discrimination or intolerance.

The dividing line between what is and ehat is not actionable is a fluid one and I do not believe that there is alot of case law on point. Law review commentary would be most welcome. 

May 14, 2011 in Education Law, Employment Discrimination, Law Review Ideas | Permalink | Comments (1)