Thursday, July 3, 2014
The 7th Circuit issued a recent decision addressing the definition of sexual activity under a criminal law statute. Some readers may find this blog posting (which discusses this case) of interest because of Judge Posner's statutory construction analysis.
Hat Tip: Melissa Baduria
Mitchell H. Rubinstein
Wednesday, July 2, 2014
Professor Bill Herbert (CUNY) writes to inform us of a call for papers by the National Center for the Study of Collective Bargaining in Higher Education. The conference will be held in April 2015. I have been to their conferences. It is one of the best interdisciplinary conferences. More details can be found in the announcement, here. Download Call For Papers and Proposed Workshops 2015 National Center Conference pdf
Mitchell H. Rubinstein
Tuesday, July 1, 2014
From the NKU Chase Law + Infomatics Institute website:
The Northern Kentucky Law Review and NKU Chase College of Law seek submissions for the fourth annual Law + Informatics Symposium on February 26-27, 2015. The conference will provide an interdisciplinary exploration of digital information in the courtroom, including the importance of insuring that such information is reliable, resilient, and uncompromised.
The symposium is an opportunity for academics, practitioners, consultants, and students to exchange ideas and explore emerging issues regarding digital forensics and the rules of evidence and discovery in criminal and civil cases.
The full release is here.
Suggested topics include digital forensics, constitutional issues, digital evidence in the courtroom, international and comparative law, e-discovery and emerging issues. The most immediate deadline is September 1, 2014 for abstracts.
In a major ruling, the NJ Appellate Division held that an employee who was going through a divorce stated a cause of action for marital status discrimination. Smith v. Millville, (June 27, 2014). As the court explained:
"Marital status" necessarily embraces stages preliminary to
marriage — one's engagement to be married. The term also covers
stages preliminary to marital dissolution — separation and
involvement in divorce proceedings. The apparent purpose of the
ban on marital-status-based discrimination is to shield persons
from an employer's interference in one of the most personal
decisions an individual makes — whether to marry, and to remain
This is an important issue. Law review commentary on this most important topic would be most welcome.
Mitchell H. Rubinstein
Monday, June 30, 2014
The Supreme Court just issued its 5-4 decision in Harris v. Quinn. The Court upholds Abood, a First Amendment decision which upheld agency fee statutory requirements. However, the court refuses to extend that precedent to the quasi-employees in Harris. Law review commentary would be most welcome.
Mitchell H. Rubinstein
Dan Markle at PrawfsBlawg, writes:
Every now and then, law reviews take heat for being not just turgid and boring but useless as well. Given that widespread lament, it's worth noting how frequently recent Supreme Court opinions have been drawing on law reviews -- and I'm not just talking about yesterday's cite to a certain Professor Elena Kagan.
Professor Markle goes on to list several cases with one or more law review cite.
Friday, June 27, 2014
New York's highest state court, the Court of Appeals, rejected the city's ban on sodas larger than 16 ounces yesterday. The case, New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, No. 134 (N.Y., June 26, 2014) begins:
We hold that the New York City Board of Health, in adopting the "Sugary Drinks Portion Cap Rule", exceeded the scope of its regulatory authority.
The New York Times' Michael M. Grynbaum has a story here.
Wednesday, June 25, 2014
Courts have regularly held that flying or tossed baseballs and broken bats entering the spectator area during competition are an inherent risk of the sport. Where spectators have been injured by such objects during competition, courts in subsequent litigation usually employ a limited duty rule applied to the ballpark operator. E.g., Edward C. v. City of Albuquerque, 241 P.3d 1086 (N.M. 2010) (deciding that "a spectator must exercise ordinary care to protect himself or herself from the inherent risk of being hit by a projectile that leaves the field of play and the owner/occupant must exercise ordinary care not to increase that inherent risk").
But what about flying hot dogs? A spectator at a Kansas City Royals baseball game alleged he sustained injuries to his eye when he was struck by a flying hot dog tossed by the Royals' mascot during a promotion. The jury found for the Royals, but yesterday, the Missouri Supreme Court reversed citing jury instruction error and remanded the case for a new trial. That court held:
In the past, this Court has held that spectators cannot sue a baseball team for injuries caused when a ball or bat enters the stands. Such risks are an unavoidable – even desirable – part of the joy that comes with being close enough to the Great American Pastime to smell the new-mown grass, to hear the crack of 42 inches of solid ash meeting a 95-mph fastball, or to watch a diving third baseman turn a heart-rending triple into a soul-soaring double-play. The risk of being injured by Sluggerrr’s hotdog toss, on the other hand, is not an unavoidable part of watching the Royals play baseball. That risk is no more inherent in watching a game of baseball than it is inherent in watching a rock concert, a monster truck rally, or any other assemblage where free food or T-shirts are tossed into the crowd to increase excitement and boost attendance.
Accordingly, Coomer’s claim is not foreclosed by the assumption of the risk doctrine.
The case is Coomer v. Kansas City Royals Baseball Corp., No. SC-93214 (Mo., June 24, 2014).
Sunday, June 22, 2014
On Tuesday, June 24, 2014 beginning at 10:00 a.m., House Republicans will hold their latest oversight hearing on the National Labor Relations Board. Titled “What Should Workers and Employers Expect Next from the National Labor Relations Board,” the hearing will feature three witnesses chosen by Republicans and one chosen by Democrats. AFL-CIO Associate General Counsel Jim Coppess will be the Democrats’ witness. For more information and to watch a webcast of the hearing go to:
Monday, June 16, 2014
In case you have not seen it, a lower court in California struck down, on constitutional grounds, several provisions involving teacher tenure. Vergara v. California (Calif Superior Court, June 10, 2014). Frankly, I have never seen such a poorly written decision. The decision appears to be drafted by a law student. It is written in conclusionary form and does not contain very much analysis which supports its conclusion.
Though this appears to be a political, rather than legal decision, it has caused much public debate.
Law review commentary would be most welcome.
Mitchell H. Rubinstein
Saturday, May 31, 2014
For those of you whom do not know, there is an extremely important public sector labor law case due out any day from the Supreme Court. It is Harris v. Quinn and it concerns the issue of whether employees could be compelled to pay union dues even though they choose not to join the union. An interesting LA Times article which summarizes the issues is available here.
Mitchell H. Rubinstein
Friday, May 30, 2014
Matter of Gascon, ___A.d. 3d ___(3rd Dep't. May 29, 2014), is an interesting case. As we all know, if an employee resigns, he is not eligible for unemployment. But, what if he or she resigns because of sexual harassment. Such employees would be eligible for unemployment. As the court stated:
Whether a claimant has left employment for good cause so as to qualify for unemployment insurance benefits is a factual issue to be resolved by the Board and its determination will be upheld if supported by substantial evidence (see Matter of Petrov [Bragard Inc.Commissioner of Labor], 96 AD3d 1339, 1339 ; Matter of Garside [Commissioner of Labor];, 73 AD3d 1420, 1420 ). Based upon claimant's testimony concerning various and continuing incidents of sexual harassment by the owner and, in particular, a final incident that precipitated her departure from employment, we find that the record contains substantial [*2]evidence supporting the Board's determination (seeMatter of Grace [Astrocom Elecs., Inc.—Commissioner of Labor];, 69 AD3d 1156, 1157 ; Matter of Braband [RF Tech.—Sweeney];, 239 AD2d 627, 628 ). Although the owner denied engaging in the conduct alleged by claimant, and the employer provided statements of other employees indicating that they had no knowledge of the allegations of sexual harassment, this evidence presented a credibility determination for the Board to resolve . .
Wednesday, May 21, 2014
The Committee on Academic Affairs and Licensing for South Carolina on Monday voted against the proposed sale of Charleston Law School to InfiLaw, a private, for-profit education concern. The final up-or-down vote will be made later by the state's Commission on Higher Education. The commission will consider the committee's decision in that final vote.
Friday, May 9, 2014
Tuesday, May 6, 2014
As readers to this blog and my friends all know, in 2011 my youngest daughter Linda (just 16 yesterday) received a Kidney donation which saved her life. The Kidney came from the National Donate Life organization from a child who died in a traffic accident. In New Jersey, where we lived, the affiliated organization is known as the New Jersey Sharing Network. We will always be greatful to this family.
Each year, my oldest daughter Mollie (just 18) serves as the Captain of Linda's Home Team (named by Linda) which participates in an annual run/walk and raises money through donations. You can learn more about the run/walk, which will be held on June 6, 2014 in Northern N.J., join our team or simply make a donation by clicking here. On this page, you will also see pictures of my two lovely daughters whom I am so proud of.
Please consider helping out. Any amount would be appreciated and 100% of your donation goes to a great cause.
Finally, if you cannot contribute consider becoming an organ doner. The easist way to do this is to contact your local DMV.
Wednesday, April 30, 2014
Tulsa Law Review has published its fourth issue dedicated to book reviews. The issue includes 25 book reviews. As far as I know, Tulsa is the one of just two student-edited law journal dedicating one issue each year to book reviews -- Michigan Law Review is the other (MLR's current book review issue is here). The book review has fallen into recent disfavor among student-edited journals, leading to commentary both in law reviews and in blogs. Tulsa Law Review is ably doing its part to stem or reverse this trend.
Acknowledgement: Daniella Citron (Maryland) at Concurring Opinions.
Tuesday, April 29, 2014
Tennessee v. Madden, No. M2012-02473-CCA-R3-CD (Tenn. Crim. App., March 11, 2014), involves a second degree murder prosecution in which the defendant was a Middle Tennessee State University ("MTSU") student and the victim was a member of the MTSU women's basketball team. During the case, the defendant moved to recuse the judge presiding because that judge had a "substantial and material connection" to MTSU. Defendant noted the judge had 205 Facebook connections to individuals at MTSU, including with the head women's basketball coach, a witness in the case. Defense counsel said he was not able to affirm whether the judge visited any particular Facebook pages. The judge unfriended "numerous" MTSU connections after counsel filed the recusal motion. The judge stated during the hearing, "[t]o be quite honest I didn't think my Facebook page was public" and that he originally believed defense counsel "hacked into my account or got somebody to pretend to be my friend and went through all that stuff."
The appeals court affirmed the trial judge's denial of the motion to recuse, but not without important comment. First, the appeals court described a heated exchange between the trial judge and the defense attorney that culminated with the judge, "chastis[ing] defense counsel for, among other things, "filing a motion that called into question the people's faith in the judicial system and 'dimishe[d] our entire court system." The court affirmatively stated it did not condone all that transpired below when the record showed defense counsel was merely advocating zealously for his client. The court, however, conclude the "defendant...failed to identify any concrete manner in which she was disadvantaged by any bias on the part of the trial court."
The appellate court added (internal citations omitted):
If the public is to maintain confidence in our system of justice, a litigant myst be afforded the "cold neutrality of an impartial court." The overall tenor of some of the questions asked and statements made by the trial court to defense counsel during the hearing concerning the defendant's recusal motion reveal that the trial judge was upset, perhaps because he felt that defense counsel had violated his privacy by visiting his Facebook page (and the pages of individuals listed as his "friends" on that page). However, the record reflects nothing other than zealous representation on the part of defense counsel.
...When engaging in physical and on-line contact with members of the community...judges must at all times remain conscious of the solemn duties they may later be called upon to perform. Perhaps someday, our courts will follow the lead of Maryland, which has concluded that its judges must accept restrictions on online conduct that might be viewed as burdensome to ordinary citizens and prohibits the "friending" of attorneys and witnesses likely to appear before a judge. In the meantime, judges will perhaps best be served by ignoring any false sense of security created by so-called "privacy settings" and understanding that, in today's world, posting information to Facebook is the very definition of making it public.
One judge concurring noted that a month earlier, the court held that a judge's Facebook friendship with a confidential informant did not require recusal where the record failed to show the length of the Facebook friendship or the extent or nature of their interaction. The concurring judge also wrote, "In this case, although one Facebook 'friendship' was sufficient to scruitinize the judge's impartiality, the record does not demonstrate more than a "virtual" acquaintance between the trial judge and the prospective witness." Judges should strongly consider whether or not such scrutiny is best left uninvited.
- Judicial Campaigns, Facebook and the Appearance of Impropriety
- Facebook Friendship Leads to Disqualification
- Judge is Disqualified After Sending Litigant a Facebook Friend Request
- Texas: Facebook "Friendship" Alone Does Not Require Recusal
- Extraneous Remarks Leads to Remand for Re-Sentencing
- Estlinbaum, Social Networking and Judicial Ethics
- Florida: Facebook Friendship Leads to Judicial Disqualification
- Social Networking Judges and Attorneys
- Judges and Facebook
Sunday, April 27, 2014
I am delighted to announce that Professor Mark Weber (DePaul Law School) just published another excellent paper on the IDEA. This one concerning the right to due process. The name of the paper is In Defense of IDEA Due Process. It is available for a free download here. The abstract provides:
Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker.
This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and that others are overstated. The system is generally fair to the various classes of parents, even if some parents are better able than others to use it effectively. Costs are remarkably low given the number of children receiving special education, and hearings and hearing requests have been in decline for years. Far from being futile, the due process hearing system is one in which parents win a significant percentage of cases. And far from being out of control, hearings are generally being managed effectively. The system could be rendered still more efficient with a few modest reforms of the special education statute and its interpretation.
Mitchell H. Rubinstein
Monday, April 21, 2014
Sometimes you cannnot make this stuff up. The NY Times reports that the Boy Scouts revoked the charter of an affiliate who refused the fire a Scout leader because he was gay. As the article states:
The Boy Scouts of America, whichvoted last year to allow gay scouts but not openly gay scout leaders, has revoked the charter of a church-sponsored troop here for refusing to fire its adult gay scoutmaster.
The decision, which one gay rights organization said was a first since the policy change last year, essentially bars the Rainier Beach United Methodist Church and its 15 scouts from using logos, uniforms or names associated with the Boy Scouts as long as the scoutmaster and Eagle Scout Geoffrey McGrath, 49, remains in charge.