Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Sunday, November 23, 2008

DA in Cheney-Gonzales Shouts At Judge And Bangs On Table

The ABA Journal Daily News ran a brief Nov. 21, 2008 story that the DA, yes the DA himself, shouted at the Judge during a Cheney-Gonzales court proceedings. An AP article contains more details about this case and the DA's behavior.
I have no idea whether V.P. Cheney and former Atty General and Texas Supreme Court Judge Gonzales did any thing wrong. What I do know is that the DA acted inappropriately which leads me to believe that something about this case is starting to smell. We will have to wait and see if I am correct.

Mitchell H. Rubinstein

November 23, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Friday, October 17, 2008

U. S. Supreme Court vacates Sixth Circuit in Ohio's Help America Vote Act case

This morning, the United States Supreme Court vacated the Sixth Circuit's earlier 9-6 en banc decision entering a temporary restraining order directing the Ohio Secretary of State to take specific steps to update the state's voter database to meet Help America Vote Act (HAVA) requirements.  The Supreme Court's short per curiam decision is here.

Secretary Brunner challenged both the lower court's jurisdiction as well as their decision on the merits.  The Supreme Court, however, did not reach the merits, deciding the case instead on the standing issue. The Court wrote, "Respondents, however, are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce HAVA in an action brought by a private litigant to justify the issuance of a TRO."  The court cited two cases to support this conclusion -- Gonzaga Univ. v. Doe, 536 U. S. 273, 283 (2002) (holding no private right exists to enforce the Family Educational Rights and Privacy Act through Section 1983), and Alexander v. Sandoval, 532 U. S. 275, 286 (2001) (holding no private right of action exists to enforce disparate-impact regulations created pursuant to Title VI of the Civil Rights Act of 1964).

This is a major decision in a closely watched case as Ohio is a key battleground state in what could once again be a very close presidential election.   

Craig Estlinbaum

October 17, 2008 in Interesting Cases, Legal News | Permalink | Comments (0) | TrackBack (0)

Saturday, September 20, 2008

The Importance of Technology To Legal Practice

Via BlackBerrys and backup systems, attorneys working through Gustav  is an interesting September 3, 2008 National Law Journal article which demostrates how technology has changed law firm and corporate practices. It discusses how law firms were able to continue to operate through backup systems and blackberrys even though they may have had to leave their offices. This would not have been possible 15 years ago. As the article states:

Courts, law firms and law schools in New Orleans, Baton Rouge and the vicinity implemented their emergency procedures before the storm and have been regularly posting updates on their Web sites. Backup computer servers were used to ensure that e-mail could still be used, lawyers relied on their BlackBerrys to continue communicating with clients, and law students could access their school's Web site for regular updates from their dean.

"Everyone is safe, everyone is sound, everyone is well and that's really the most important," Howard Shapiro, who heads the New Orleans office of New York's Proskauer Rose, said of his staff.

Shapiro, who was in Jackson, Miss., on Tuesday, said he was able to use the contact information his firm prepared ahead of the storm to ensure that all of the 23 employees in New Orleans were accounted for. The office, which relocated to a new downtown location in August, was still in lockdown mode Tuesday afternoon, but many lawyers worked from remote locations, he said.

"Nobody stopped working because our e-mail system and e-communication server never went down," Shapiro said. "All our client communications remained intact."

Mitchell H. Rubinstein

September 20, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 2, 2008

Did Wal-Mart Violate Federal Election Laws In Advocating Against Employee Free Choice Act??

The August 14, 2008 Wall Street Journal Law Blog ran an interesting story entitled Did Wal-Mart Violate Federal Election Laws? Labor Groups Want to Know. The Wall Street Journal Proper ran a similar story available here.

Wal-Mart organized company meetings to warn its store managers that if the Democrats win in November, the Employee Free Choice Act is likely to be enacted which Wal-Mart opposes-anyone want to guess why? Apparently, they are using corporate money for these meetings which are apparently unlawful. As the article states:

The labor groups — including American Rights at Work, the AFL-CIO and WakeUpWalMart.com — are filing the letter with the FEC, asking the Commission to determine whether the company “made prohibited corporate expenditures” by organizing meetings across the country to warn employees that a Democratic president would back legislation known as the Employee Free Choice Act, which the company opposes. Both labor and business agree the legislation would make it easier for the labor movement to organize more workers.

Sen. Barack Obama co-sponsored the legislation, which also is known as “card check,” and has said he would sign it into law if elected president. Sen. John McCain, the likely Republican presidential nominee, voted against the legislation last year. Companies aren’t permitted under federal election law to expressly advocate to hourly employees the election or defeat of specific candidates.

Wal-Mart spokesman David Tovar said the company’s policies are clear and that anyone representing the company and telling associates how to vote were “wrong and acting without approval.” He said: “We welcome the FEC looking into this, because we are confident they will find what we have known all along, that we did nothing wrong.”

Mitchell H. Rubinstein

September 2, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Sunday, August 24, 2008

Sitting State Supreme Court Justice Ordered Not To Issue Opinion

Justices Tell Colleague Not to Publish His Opinion. Unprecedented? is a very interesting August 22, 2008 Wall Street Law Journal Blog story. Remarkably, the Mississippi Supreme Court ordered another sitting Justice, Justice Oliver Diaz not to publish his dissent with the majority decision. He did, however file it separately and it is available here from the Folo blog.

At the beginning of his dissent, Justice Diaz notes that this action may be unprecedented in American jurisprudence. This certainly appears to be unconstitutional as a violation of separation of powers and this constitutional law issue warrants law review commentary.

Mitchell H. Rubinstein

August 24, 2008 in Law Review Ideas, Legal News | Permalink | Comments (0) | TrackBack (0)

Friday, August 22, 2008

Should The Spread of AIDS Be Criminal?

The New York Times ran a very interesting August 8, 2008 article entitled Seeking Better Laws on H.I.V. It reports on a international conference on AIDS that called for the decriminalization of laws involving the spread of AIDS. As the article states:

  Criminalization is a poor tool for regulating H.I.V. infection and transmission,” Edwin Cameron, a justice of the Supreme Court of Appeals in South Africa, said in a plenary session.

“Let one of the conference outcomes be a major international push-back against misguided criminal laws and prosecutions,” said Justice Cameron, who is himself infected.

Citing cases in Texas, Zimbabwe, Sierra Leone, Bermuda and Switzerland to illustrate the “folly of criminalization,” the judge said, “There is no public health rationale for invoking criminal law sanctions against those who unintentionally transmit H.I.V. or expose others to it.”

Justice Cameron said he understood that society feared the deadly virus and that public officials might want to invoke laws to counter those who recklessly passed it to others.

But, he said, “Criminalization is warranted only where someone sets out, knowing he has H.I.V., to infect another and succeeds.”

Mitchell H. Rubinstein

August 22, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Thursday, August 14, 2008

Happy Birthday Social Security

The Social Security Act turned 73 on August 14, 2008. Happy birthday! Today more than 43 Americans take advantage of Social Security and the system never missed a payment.

Social Security has transformed the United States. Today it is considered one of the three parts of worker retirement; the other two being personal savings and pension plans. Social Security is, of course, much more than just retirement income. It provides health insurance to the disabled and the elderly. It also provides benefits to disabled and to the poor.

I cannot image a working world without Social Security. It is hard to believe that it is only 73 years old.

Mitchell H. Rubinstein

Hat Tip: AFL-CIO Blog

August 14, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Monday, August 11, 2008

Leading Union Avoidance Practitioner Loses Law License

Workplace Prof Blog reported on August 11, 2008 that one Stephen Cabot, a leading Philadelphia labor lawyer known for his expertise in "union avoidance," has lost his license to practice law for cheating his old firm. According to the Philadelphia Business Journal he was not actually disbarred, but surrended his license. The refrence news paper story is available the Philadelphia Business Journal.

Like Professor Secunda, I believe that is is going to be interesting to see if Mr. Cabot can keep doing his antics without a law license. His anti-union web site describes himself as a former leading labor lawyer.

Mitchell H. Rubinstein

August 11, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Becker-Posner Blog Debate Gay Marriage

On August 10, 2008 the Becker-Posner Blog debated Gay Marriage. Judge Posner's article is entitled The Economics of Gay Marriage--Posner and Professor Becker's article is entitled Should Gay Marriages be Allowed? Becker

Judge Posner

Judge Posner does not take a position on whether can marriage should be permitted. Instead, he offers a historical overview and some very interesting economic analysis. Most interesting is his claim that only 2% of males are gay and 1% of females are gay. Where does he get that from?? As Judge Posner states:

What are likely to be the consequences of gay marriage? If few homosexual couples take advantage of the right to undertake such a marriage, the consequences, at least in the short run, will be slight, especially since the right will be recognized in only a few states for the foreseeable future. But even if all states recognized gay marriage and the Defense of Marriage Act were repealed, the consequences would be small simply because the homosexual population is small and many homosexual couples will not bother to marry; many heterosexual couples nowadays do not bother to marry, especially if they don’t plan to have children, and a higher percentage of heterosexual than homosexual couples do not plan to have children. The much-bandied-about figure that 10 percent of the population is homosexual is false; it is based on a misinterpretation of Kinsey's data. The true figure is about 2 to 3 percent for men and 1 percent for women.

My qualification "in the short run" was intended to leave open the question whether widespread recognition of gay marriage, and thus the legitimating of homosexual relationships, might either increase the number of homosexuals or undermine heterosexual marriage. I do not think either consequences is likely. Sexual preference seems pretty clearly to be genetic or otherwise innate rather than chosen on the basis of social attitudes toward particular sexual practices. Despite greatly increased tolerance of homosexual behavior in many countries (including the United States) in recent decades, there is no evidence that I am aware of that the number of people who prefer homosexual to heterosexual sex has grown. Homosexuals are more open about their sexual identity and this creates an impression that there is more homosexuality than there used to be--and there may indeed be more homosexual behavior. But the preference appears to be unchanged.

Professor Becker

Professor Becker basically supports gay marriage. He has an interesting idea. He proposes that marriage be done by contract between two consenting adults whether they are gay or straight. This would take the state out of it.

In my view, this is an interesting idea, but it is not going to take the state out of it because the enforcability of these contracts would depend upon whether or not public policy will permit gay marriage. 

This certainly makes for interesting reading.

Mitchell H. Rubinstein

August 11, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Saturday, August 9, 2008

Owner Arrested Over Failure To Pay Workers' Compensation Insurance Premiums

Here is a new one. Steven Greenhouse of the New York Times reports in an August 8, 2008 article entitled "Bronx Nursing Home Owner Is Arrested Over Workers’ Compensation" that a nursing home owner was actually arrested and charged with a felony for not paying Workers' Compensation Insurance. The article reports that this is not the owner's only problem. He has been involved in a bitter labor dispute with 1199 SEIU for failing to pay health and  benefits as well as multiple unfair fair labor practices under the NLRA. This is the first time I have heard of someone actually being arrested. As the article states: 

Mrs. Sieger, 55, the president and chief executive of the 400-bed nursing home, has come under heavy fire recently from state lawmakers and labor leaders because 220 of the nursing home’s workers have been on strike since February.

Officials from 1199 S.E.I.U. United Healthcare Workers East said the main reason for the strike was that Mrs. Sieger had failed to pay $2 million into the nursing home’s health and benefit fund, causing the workers to lose their health insurance.

Mr. Cuomo said the Kingsbridge Heights home, at 3400 Cannon Place in the west Bronx, had gone without workers’ compensation coverage for 13 months — from May 31, 2007, through June 26, 2008.

“Today’s arrest should send a strong message: Employers who think they can wait until they get caught before getting workers’ compensation insurance are in for a rude awakening,” Mr. Cuomo said in a statement. “Any employer trying to cheat workers and the state by failing to have workers’ compensation insurance will be held accountable by my office.”

Mitchell H. Rubinstein

August 9, 2008 in Employment Law, Legal News | Permalink | Comments (0) | TrackBack (0)

Monday, August 4, 2008

Juror pay in Minnesota is slashed 50% to $10 Because of Budget Problems

Juror pay in Minnesota is slashed is an interesting July 22, 2008 National Law Journal article. The article reports that because of budget cuts, juror pay is being reduced from $20 per day to $10 per day.

This is ridiculous. Jurors in Minnesota, as well as in most other parts of the country are grossly under paid. Additionally, the amount of money that will be saved by this cut is peanuts. This cut demonstrates an utter disrespect for the service of jurors and the legal system. Any wonder why so many do anything they can to get out of jury service??

Don't we as a society want to encourage jury service??

Mitchell H. Rubinstein 

August 4, 2008 in Legal News | Permalink | Comments (1) | TrackBack (0)

Thursday, July 31, 2008

Casualties of War

Casualties of War is an interesting July 1, 2008 article from the American Lawyer (registration required). It is about some of the difficulties our wounded veterans returning from Iraq face. The article discusses how a number of major law firms are offering pro bono services for our vets. As the article states:

Disabled veterans face a blizzard of paperwork when they return home, and, until recently, little legal support. But as the toll from Afghanistan and Iraq mounts, more lawyers are stepping in to help.

Mitchell H. Rubinstein

July 31, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Saturday, July 12, 2008

NY Times Reporter Linda Greenhouse Retiring To Become Law Professor At Yale Law School

2691 Decisions is an interesting July 13, 2008 NY Times article by Linda Greenhouse, who served as the Times Supreme Court reporter for 30 years. Greenhouse is retiring to become a law school professor at Yale Law School. This article traces her wonderful career and discusses some of her views about the political nature of the Supreme Court which she terms being a "follower:" 

In fact, it is most often the Supreme Court that is the follower. It ratifies or consolidates change rather than propelling it, although in the midst of heated debate over a major case, it can often appear otherwise. Without delving into the vast political science and legal academic literature on this point, I’m simply offering my empirical observation that the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.

I never met Ms. Greenhouse, but she will be missed.

Mitchell H. Rubinstein 

July 12, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2008

9th Circuit Chief Judge Kozinski Maintains a Porn Site??

Dan Slater, on his Wall Street Law Blog,  wrote an interesting story entitled Judge Kozinski on His Porn Site: “It’s part of life.” It reports on a LA Times article which exposed a web site maintained by the Judge. The Judge claims that he thought that site was private. Mr. Slater summarizes the article as follows:

Kozinski, 57, acknowledged in an interview with the LAT that he had posted the materials, which included a photo of a naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he defended other sexually explicit content as “funny.”

He said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, Kozinski, who pointed out that he never used appeals court computers to maintain the Web site, blocked public access to the site.

Mr. Slater then goes on to quote from the LA Times article which interviewed ethics expert Stephen Gillers who indicated that the Judge may have to recuse himself from certain cases because the public may question is objectivity.

I believe Professor Gillers is wrong-very wrong. While not condoning what Kozinki did, there is no indication that he did anything unlawful or even unethical. If a judge gets a speeding ticket, does that mean that they cannot adjudicate one?? I hope that our politically correct world does not interpret the cannon of judicial ethics as suggested by Professor Gillers.

The LA Times article is available here.

Mitchell H. Rubinstein 

June 12, 2008 in Legal News | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 3, 2008

Tavern On The Green Pays Millions To Settle EEOC Lawsuit

Steven Greenhouse wrote an interesting June 2, 2008 New York Times article entitled Tavern on the Green Pays $2.2 Million to Settle Bias Claim.  It quotes an EEOC news release which states: “engaged in severe and pervasive sexual, racial and national origin harassment of female, black and Hispanic employees.” The article continues:

The federal commission said the sexual harassment had included graphic comments and demands for sexual acts, as well as groping of women’s buttocks and breasts. [See update.]

When the commission filed the lawsuit last September, it also said a top manager had engaged in severe harassment of black employees and had harassed Hispanic employees, sometimes addressing them as “ignorant immigrants” and ridiculing their accents.

This case demonstrates that the EEOC sometimes actually does something. Unfortunately, they do not do the "right thing" often enough.

Mitchell H. Rubinstein

June 3, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Monday, May 26, 2008

Colorado To Consider Ban On Affirmative Action

This November voters in Colorado will have the opportunity to consider a ban on affirmative action known as the Colorado Civil Rights Initiative which is actually a proposed amendment to the state constitution. If enacted this amendment would prohibits preferences based on race, gender, national origin, color and ethnicity in state hiring, contracting and education.

The May 20, 2008 Denever Post has an article which provides more details about this proposed amendment, available here.

Mitchell H. Rubinstein

May 26, 2008 in Discrimination Law, Legal News | Permalink | Comments (0) | TrackBack (0)

Friday, May 23, 2008

Harvard Law Faculty Articles to Be Free Online

Harvard Law Faculty Articles to Be Free Online is an important May 12, 2008 National Law Journal Article. As its title implies, all of Harvard Law faculty's publications will be available on line. It is about time. I expect all law schools will follow shortly. Most of us do not get paid for writing law reviews anyway. One of the primary responsiblity of professors is to well, teach. The internet now makes it much easier for the public to read faculty publications-particularly if they are released on Google.

I assume this new policy applies to law review articles, but not to text books which are copyrighted by the publisher.

Mitchell H. Rubinstein   

May 23, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2008

New York Lawyers Sue Atty General and Comptroller Over Pension Probe

Courroompictureviabrainden If you live in New York, you must be aware of the alleged pension scam where by several lawyers were put on the payroll of school districts in order to be eligible for a public pension. The only problem is that they did not work for the school district. New York Newsday has extensively reported on this issue. One such article is available here

Now, a May 16, 2008 New York Law Journal article entitled Lawyers Fight Back Over Pension Probe is reporting that some of the lawyers, in turn, have sued the AG and the Comptroller by claiming that they are acting in excess of their jurisdiction and that their pension plans vested under the NYS constitution. There 52 page complaint is available here. As the article states:

Their suit contends that the actions of Mr. Cuomo and Mr. DiNapoli "are contrary to the law, threaten to, and in some cases already have, improperly deprived or divest individuals of contract and property rights recognized and protected by the New York State Constitution and statute, and trammels the rights granted individuals by the Fifth and Fourteenth Amendments to the United States Constitution."

The action, Swergold v. Cuomo, 3897-08, seeks a declaratory judgment prohibiting Mr. Cuomo and Mr. DiNapoli from investigating the pension fund and striking the names of members they deem ineligible for benefits. It also asks that class action status be granted to the plaintiffs and other attorneys who may face a challenge to their public pension eligibility based on the part-time work they performed for government entities.

The suit was filed in Albany Supreme Court.

This lawsuit does not directly involve many of the named attorneys uncovered by Newsday. However, the underlying investigations were likely caused by those incidents which these plaintiffs complain of. Look for the suit to go no where.

Mitchell H. Rubinstein

[via google images, esl.vc.ca]

May 15, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Brooklyn Judge Files 10 Million Dollar Lawsuit Against Daily News and Attorney

The May 5, 2008 New York Law Journal is reporting that a Brooklyn State Judge has filed a 10 million dollar defamation law suit against an attorney and the Daily News. That article, which is not particularly well written, is available here.  I bring it to your attention because it is not every day that a sitting judge files a lawsuit.

Mitchell H. Rubinstein

May 15, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Monday, May 12, 2008

Handwritten 2 Page Document Held To Be A Binding Employment Contract

Jury awards $10.5 million on handwritten contract is an interesting April 21, 2008 Associated Press article. A jury awarded 10.5 million dollars for breach of a 2 page handwritten employment contract which also stated "The parties will complete formal contracts as soon as possible but this is binding." Thus far, the issue of this contract's validity has involved 6 years of litigation. As the article states:

A trial judge barred the contract claim, but West won $1.5 million from a federal jury in 2005 for his six months of work. IDT appealed, and the judge vacated the verdict in 2006.

West appealed, and the 3rd U.S. Circuit Court of Appeals said his contract claims could be considered by a jury, but did not restore the monetary award. The second trial began a month ago.

"This has been more than a six-year battle with two appeals and two trials," Pollack said.

The seven-person jury unanimously found that West proved the two pages constituted a contract, and that West met his obligations, but that IDT breached the contract.

Mitchell H. Rubinstein

May 12, 2008 in Employment Law, Legal News | Permalink | Comments (0) | TrackBack (0)