Tuesday, May 7, 2013
Justices Will Not Review Ruling Shielding Retirees' Health Care Benefits
Monday, May 6, 2013
Texas: February 2013 Bar Results Are In
The bar exam results are in for the February 2013, exam and congratulations are in order to Texas's newest attorneys. The overall pass rate for this exam was 74.18%, with the breakdown among Texas law schools (for first time takers) and other test-taker categories being as follows:
- Baylor 95.56%
- Texas Tech 95.45%
- Out of State Licensees 90.32%
- Houston 89.66%
- Texas Wesleyan 88.68%
- Texas 86.36%
- South Texas 85.22%
- St. Mary's 75.00%
- Overall Pass Rate 74.18%
- S.M.U. 73.08%
- Thurgood Marshall 66.67%
- Out of state law schools 65.78%
- All Repeat Test Takers 63.58%
- Other categories 55.56%
King; Enforcing Effective Assistance after Martinez
Professor Nancy J. King (Vanderbilt) has posted her essay, "Enforcing Effective Assistance after Martinez" on SSRN. Here is the abstract:
This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the states to explain why, even if federal habeas grants increase, state courts and legislatures are unlikely to respond by invigorating state collateral review. The Essay concludes that alternative means, other than case-by-case postconviction review, will be needed to ensure the provision of effective assistance.
This Essay is forthcoming in the Yale Law Journal.
Sunday, May 5, 2013
NLRB Petitions Supreme Court to Review Ruling on Recess Appointments
As expected, the NLRB filed petition asking the U.S. Supreme Court to review a recent DC Circuit decision which held unconstitutional President Obama's January 2012 recess appointments to the board (NLRB v. Noel Canning Div. of Noel Corp., petition filed 4/25/13).
The petition asserts that the decision of the District of Columbia Circuit (705 F.3d 490 (D.C. Cir. 2013), "would dramatically curtail the scope of the President's authority under the Recess Appointments Clause" of the U.S. Constitution if the appeals court ruling is allowed to stand.
Mitchell H. Rubinstein
Saturday, May 4, 2013
2013 NYU Annual Conference on Labor June 6-7
By far, one of the best labor conferences in the country-and I have been to many conferences-is the annual NYU Labor Conference. Details and registration material can be found by clicking Download LABOR CENTER -- 2013 NYU ANNUAL CONFERENCE ON LABOR It is run by Professor Sam Estreicher who is one of the most well known scholars in the country.
For the last several years this conference has been co-sponsored by St. John's Law School and the Cornell ILR School. It goes without saying that the topics are interesting-this year the focus is on the FLSA-and CLE credit is awarded.
So why is this conference different?? It is different because most substantive topic discussions involve academics and practicing lawyers. And it is not just any practing labor lawyer or any labor professor. This conference regularly attracks the most established lawyers and professors. Just take a glance at who is speaking this year. I save the material handed out because it is so useful.
So, if you have some time, you may want to consider attending this conference.
Note, although it is held over 2 days, you can choose to attend only one day. You also cannot beat the cocktail receiption.
Mitchell H. Rubinstein
Friday, May 3, 2013
New In Print: Law Review Reviews
Fordham Law Review's April 2013, issue includes a symposium on the goals of antitrust. Barak Orbach (Arizona) contributed the Forward. The April 2013, California Law Review includes "Property's Constitution," by James Y. Stern (Virginia) and From Independence to Politics in Financial Regulation," by Stavros Gadinis (Berkeley). The current issue of the Columbia Journal of Gender & Law includes a Symposium Honoring the Advocacy, Scholarship and Jurisprudence of Justice Ruth Bader Ginsburg.
The March 2013, Columbia Law Review includes "In Defense of Big Waiver," by David J. Barron (Harvard) and Todd D. Rakoff, (Harvard) and "Technological Innovation, International Competition and the Challenges of International Income Taxation," by Michael J. Graetz (Columbia) and Rachael Doud (Yale '12). The Winter 2013, Houston Law Review includes articles by Alexia Brunet Marks (Colorado), Stacey A Tovino (UNLV) and Fredrick E. Vars (Alabama).
Legal history buffs may want to check out the Fall/Winter 2013 Rutgers Law Journal, which includes Symposium: The Constitution and the Sectional Conflict. The current issue of the Saint Louis Law Review includes the symposium, "Invisible Constitutions: Culture, Religion and Memory."
The Texas Tech Law Review's Fall 2012 issue includes the Sixth Annual Criminal Law Symposium: Sixth Amendment, including panel articles on confrontation, the right to counsel at trial, and the right to counsel before trial. As of this writing, this edition is not available online at the law review's website.
The March 2013, Cornell Law Review includes "Accepting the Limits of Tax Law and Economics," by Alex Raskolnikov (Columbia), "The Regulator Effect in Financial Regulation," by Jonathan R. Macey (Yale) and "The Social Production of National Security," by Aziz Z. Huq (Chicago).
Some other recently released symposium issues of note are UC Davis Law Review and "The Daubert Hearing: From All the Critical Perspectives;" The University of Chicago Law Review and "Immigration Law and Institutional Design;" Washington University Global Studies Law Review and "Global Nuclear Energy Law and Regulation;" and Georgetown Journal of Law & Public Policy and "Hyper Partisanship and the Law."
The April 2013, Duke Law Journal includes "Delegating Up: State Conformity With the Federal Tax Base," by Ruth Mason (Connecticut) and the lecture, "Exit, Voice and Disloyalty," by Heather K. Gerken (Yale). The current Oregon Law Review (Vol. 91, No. 4) includes a symposium on issues relating to marijuana legalization and the war on drugs.
Thursday, May 2, 2013
Recent Massachusetts Supreme Judicial Court Decision Interprets a Landlord’s Indemnification Rights under a Commercial Lease
A recent decision by the Massachusetts SJC provides a short master class on indemnification provisions in a commercial lease. (For those interested, a link to the oral argument can also be found here.) While I do not focus on real estate in my practice or teaching, a lease is a contract like any other, so it seemed worthwhile to review this decision.
The case involved a long term commercial lease in downtown Boston. The lease started in 2006, and two years later (2008 was not exactly a great real estate market) the tenant suspended its business operations and stopped paying rent, causing the landlord to declare a default, terminate the lease and seek to re-let the premises. The landlord ultimately filled the space almost two years later, albeit at a lower overall rent, but for a new lease term that went beyond the term of the terminated lease. The landlord then sought to recover its lost rent for this period (including the period following the original lease term) from the original tenant (and its guarantor).
The lease contained a general indemnification clause requiring the tenant to indemnify the landlord against “all loss of rent and other payments which Landlord may incur by reason of such termination during the remainder of the term." The lease did not grant the landlord a liquidated damages remedy or any other remedy apart from indemnification.
In a colorful opinion, citing Oliver Wendell-Holmes (citing Lord Coke), the Court ruled that Massachusetts law does not permit the landlord, absent an express lease provision, to recover lost rent for time periods outside of the original lease term. Distinguishing this case from a 1905 decision cited by a lower court in this proceeding, the SJC held that a landlord cannot recover for post-termination damages under an indemnification clause in a lease until the end of the period specified in the lease, when the amount of indemnification is uncertain, unless the indemnification clause specifically provides that damages may be recovered earlier. The Court sympathized with landlord’s argument that being required to wait until the end of the lease term to enforce an indemnity could be prejudicial in various ways, including that the tenant may be long gone by that point and any adjudged amount may prove uncollectible. However, the Court refused to adopt an exception to this common law rule, reasoning that landlords are in the best position to assess this type of risk and therefore should be required to state so in their leases. The Court stated that “a landlord left without an adequate remedy following breach … has only itself to blame for entering into a lease that fails to provide such a remedy.”
The Court also rejected the landlord’s argument that it was entitled to recover "benefit of the bargain" damages in the event of termination of the lease following a breach. The Court followed the long-standing common law that once a landlord terminates a lease, the tenant is no longer obligated to pay the rent, and, unless the lease provides otherwise, the landlord is not entitled to post-termination damages.
This case emphasizes the importance of carefully drafted remedy provisions in any commercial documents. Parties should not place their faith on courts to help them recover damages for which they did not negotiate, and would be well-advised to review their lease forms in light of this decision.
Adjunct Law Professor of Corporate Mergers and Acquisitions
New England School of Law
Tuesday, April 30, 2013
Unsucessful Law Professor Job Applicant Loses Discrimination Case
(Dobkin v. Univ. of Iowa, Iowa Ct. App. No. 2-1096/12-1012, 2/13/13) is an interesting case. The court held that the lower court properly denied admission of an article from a law journal newspaper written by a witness for the age-protected job applicant who was denied an employment offer at the law school, despite contentions that opinions contained in the article were based on empirical evidence and that the law school “opened [the] door” for the article's admission, where the article was inadmissible hearsay with no applicable exception.
One of these days law schools are going to start to get hit for institutional age discrimination.
Mitchell H. Rubinstein
Surprise, Surprise A Boss Who Exposes Himself Faces Sexual HarassmentSometimes you just cannot make these cases up. An emergency medical technician claiming her supervisor exposed his testicles after she told him he "didn't have any balls" can proceed with a sexual harassment claim against her former boss under California law. Angel v. Am. Med. Response West, ___F. Supp. 2d____(E.D. Cal. 4/25/13).
A supervisor allegedly unzipped his pants and pulled out his testicles during an argument with plaintiff at work. The court concluded that the single incident was sufficiently severe to support the action.
MItchell H. Rubinstein
Saturday, April 27, 2013
Workers Memorial Day 2013
Matt Pelletier writes to tell us about Workers Memorial Day which is on April 28, 2013. He published a tribute page which is full of interesting information about OSHA. I did not know anything about Workers Memorial Day. He describes it as follows:
Workers memorial day is a commemoration day that is celebrated in the U.S and abroad each year on April 28th. It is meant to remember those who have been killed or left disabled as a result of an injury suffered at work. It’s an opportunity to recognize the preventable nature of most workplace accidents and bring greater awareness to safety campaigns and legislation.
His web page is certainly worth reading.
Mitchell H. Rubinstein
Extraneous Facebook Remarks Leads To Remand For Re-Sentencing
Debra Cassens Weiss at ABA Journal has this report about a strange federal child pornography case in Connecticut where the appeals court has remanded the case back to the trial court for re-sentencing. From the story:
...[U.S. District Judge] Eginton justified his decision to impose the longer sentence by referencing “Facebook, and things like it, and society has changed.” He speculated that the proliferation of Facebook would spur an increase in child pornography, and said he hoped Facebook founder Mark Zuckerberg was “enjoying all his money because … he’s going to hurt a lot of people,” the appeals panel said.
The appellate court remanded for a new sentencing hearing, stating, "“It is plain error for a district court to rely upon its own unsupported theory of deterrence at sentencing, especially where, as here, that theory has little application to the actual facts of the case itself."
Friday, April 26, 2013
Thank you for the introduction and opportunity, Mitchell. I look forward to participating in this blog and contributing on topics relating to corporate law, mergers & acquisitions and technology deals. These are areas that I teach and also where I practice, so I will aim to look at issues presented in these areas from both points of view.
New In Print: Law Review Reviews
The Denver University Law Review (Vol. 89, No. 4) has published papers from the 19th Annual Rothgerber Conference - "Toward A Constitutional Right of Access to Justice: Implications and Implementations," with a focus on access to the courts and medical marijuana, among other things.
The April 2013, Harvard Law Review includes " The Problem of Resource Access," by Lee Anne Fennell (Chicago), a book review by David A. Strauss (Chicago) plus student notes and recent cases. The Winter 2013, Harvard Journal of Legislation includes papers by Senator Jeanne Shaheen on fililbuster reform, Senator Olympia J. Snowe on legislative effectiveness in the 112th Congress, and Rep. Louise Slaughter on the Genetic Information Non-Discrimination Act. The edition also includes a short symposium on Government Outsourcing and Privatization.
Alabama Law Review (Vol. 64, No. 3) includes Meador Lecture Series papers by Robert C. Ellickson, "The Law and Economics of Street Layouts: How a Grid Pattern Benefits a Downtown," and Brian Leiter (Chicago), "The Boundaries of the Moral (and Legal) Community." The Nov-Dec. 2012 San Diego Law Review includes the 2012 Editors' Symposium: "The Philosophical Foundations of Intellectual Property."
The March 2013 issue of Law and Contemporary Problems (Duke, faculty edited) includes the symposium, "A Global Perspective on Sentencing Reform." The Winter 2013 issue of the Indiana Law Journal leads with "Procedural Fairness in Election Contests," by Joshua Douglas (Kentucky).
Volume 2013, No. 1, Wisconsin Law Review includes, "colloquium essays address[ing] the role of empirical research in identifying, measuring, and clarifying crucial issues of service delivery, resource allocation, and access to justice in American law and society." Participating essayists are Jane H. Aiken (Georgetown) & Stephen Wizner (Yale), Catherine R. Albiston (Berkeley) & Rebecca L. Sandefur (Illinois), Anthony V. Alfieri (Miami), Jeanne Charn (Harvard) & Jeffrey Selbin (Berkeley), and Scott L. Cummings (UCLA). Meredith J. Ross (Wisconsin) contributed the Introduction to the Colloquium.
The New York Law School Law Review, Volume 57, Number 4, released this week and includes the symposium, "Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination."
Thursday, April 25, 2013
Discussing Under the Radar Supreme Court Cases
The Atlantic has posted a feature that asks several leading attorneys, journalists, scholars and judges, "What's the Most Important Supreme Court Case No One's Ever Heard Of?" It's an interesting read.
Superman Copyright Litigation Comes to Close, Maybe
Jan Wolfe, The AmLaw Litigation Daily, reports that U.S. District Judge Otis Wright II, issued a summary judgment order last week bringing to a close litigation initiated a decade ago by the heirs to Superman's co-creator, Jerry Siegel, to reclaim copyright to the iconic (and lucrative) character.
Apprarently, in 1938, Seigel and his co-creator, Joe Schuster, sold the Superman character to Detective Comics for $130. Over the years, the buyer's successors have paid pension and compensation under different agreements, however, in this particular litigation, Siegel's heirs sought to reclaim the copyright under the so-called "termination rights" provision of the Copyright Act. Judge Wright's order brings this effort to a close it appears.
The case is Laura Seigel Larson v. Warner Bros. Entertainment, Inc., Case No. 2:04-cv-08776-ODW(RZx), in the United States District Court for the Central District of California.
To Mirandize Or Not To Mirandize
Whether or not authorities are duty bound to read the alleged Boston Marathon bomber, Dzhokhar Tsarnaev, his Miranda rights (and the consequences, if any, of their failure to do so) has been a hot topic in the news and blogosphere in recent days. I have been following the story as closely as I can and though I would post some of the most informative and interesting news and opinion pieces on the subject here:
- Adam Goodman (Harvard Law Student), "How the Media Have Misunderstood Dzhokhar Tsarnaev's Miranda Rights" (The Atlantic).
- Erwin Chemerinsky (UC-Irvine Law), "Dzhokhar Tsarnaev Has Rights" (Los Angeles Times).
- Akhil Reed Amar (Yale Law), "What If Dzhokhar Tsarnaev Decides Not to Talk?" (Slate).
- Eric Posner (Chicago Law), "The New Law We Need in Order to Deal With Dzhokhar Tsarnaev" (Slate).
- Jeffrey Rosen (George Washington Law), "Do You Have the Right to Remain Silent? The Obama administration's radical view of Miranda rights was in place well before Boston" (The New Republic).
- Roger Pilon (Cato Institute), "The Constitution Ensures A Fair Trial For Dzhokhar Tsarnaev, But Miranda Has a Public-Safety Exception" (Forbes).
- Real Clear Politics, "Dershowitz: Authorities Will "Regret" Not Reading Boston Bomber His Miranda Rights" (video).
- Bloomberg Editorial, "Dzhokhar Tsarnaev’s Rights, and the Public’s" (Bloomberg View).
- Doug Mataconis, "Dzhokhar Tsarnaev, Miranda, And The Public Safety Exception" (Outside the Beltway).
- Tom McCarthy, "Lindsey Graham: don't read suspect Miranda rights if arrest is made" (The Guardian).
Thiere are surely many more well-reasonsed commentaries on this subject - please feel free to add or link to them in comments. As an aside, I predict a healthy increase in law review submissions by professors, practicing attorneys and students addressing the public safety exception to Miranda v. Arizona, in the coming months.
Wednesday, April 24, 2013
Connecticut: Recovering Attorney's Fees in Multiple Contract Deal Gone Wrong
Often complex business deals are built upon multiple contract which taken together lead to a single business transaction. When and to what extent may a prevailing party in an American Rule jurisdiction collect attorney's fees from the breaching party when that single business transaction goes wrong and some but not all contracts contributing to the transaction include a provision for recovering attorney's fees? The Supreme Court of Connectucut, in a case of first impression, tackled that very question Tuesday in Total Recycling Services of Conn., Inc. v. Connecticut Oil Recycling Services, LLC., No. 18823, 2013 WL 1500840 (Conn. April 23, 2013).
Total Recycling originates from the sale of an oil recycling business expressed by the parties in three contracts - an equipment contract, a goodwill contract and a noncompete contract. The goodwill and noncompete contracts included a provision entitling the defendant to attorney's fees if the plaintiff breached the agreement -- the equipment contract did not.
Disputes arose between the parties with the plaintiff and defendant filing claims and counterclaims against one another. The plaintiff prevailed on its unjust enrichment claim only while the defendant prevailed on claims that plaintiff breached the contracts, though damages were assessed only as to the equipment contract. The trial court denied defendant's claim for attorney's fees because the contract upon which defendant recovered damages did not include an attorneys fees recovery provision, a reasoning later rejected by the intermediate appellate court.
On remand, the trial court denied the attorney's fees claim because the defendant failed to apportion attorneys fees among the three contracts. The intermediate appellate court affirmed the denial on those grounds. The Supreme Court certified this question: "Did the Appellate Court improperly affirm the judgment of the trial court denying the defendant's motion for contractual attorney's fees?" The Supreme Court answered this question affirmatively and remanded for further proceedings.
The Supreme Court held, "when certain claims provide for a party's recovery of contractual attorney's fees but others do not, a party is nevertheless entitled to a full recovery of reasonable attorney's fees if an apportionment is impractical because the claims arise from a common factual nucleus and are intertwined." The court concluded that defendant should not be required to apportion attorney's fees between the goodwill and noncompete contract claim, for which attorney's fees were recoverable, and the equipment contract, for which attorney's fees were not recoverable, because the claims involved the same transaction, the same parties, the same conduct and the same time frame. Under these circumstances, the court concluded apportioning attorneys fees among and between the contracts was not practicable.
Tuesday, April 23, 2013
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
Roberts on Effective Plea Bargaining Counsel
Jenny Roberts (American) has posted "Effective Plea Bargaining Counsel" on the Social Science Research Network. The article appears to have been accepted for later publication by the Yale Law Journal. This is the abstract:
Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court - recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials - ruled in favor of Frye and Cooper.
If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel? If so, is it possible to define the contours of such a right? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention.
In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel. Any right to effective bargaining should be judged - as other ineffective assistance claims are judged - by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals.
The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation. While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel. After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?
Roberts' article highlights proposed professional and ethical norms relating to plea bargaining. The Padilla, Frye and Cooper trilogy have opened the door for courts to closely scruitinize trial counsel's plea negotiations in subequent post-conviction proceedings. The highlights important considerations for defense counsel desiring to negotiate the best possible plea while simultaneously securing the plea's finality against post-conviction challenges. This article is recommended reading.
Sunday, April 21, 2013
Welcome Guest Blogger-Dimitry Herman
I am delighted to introduced Dimitry Herman, New England Law School Adjunct Law Professor and practicing attorney, as a guest blogger. His bio is as follows:
Dimitry Herman is the founder and managing partner of Herman Law. Dimitry has over 15 years’ experience serving as outside general counsel to growing technology companies and as deal counsel for venture capital investments, corporate M&A, licensing and strategic alliances and other corporate deals. Dimitry’s primary industry focus is on internet, advertising, social media, loyalty and gaming sectors, with a “minor” in clean-tech and automotive technologies. Dimitry is an active member of Boston’s entrepreneurial community, serving as a judge and advisor in business plan competitions at Harvard and MIT and a mentor with the MIT Venture Mentoring Service (VMS). He was a member of the National Venture Capital Association (NVCA) model legal documents drafting committee, which today has become the accepted form of early stage venture capital deal documents for many leading east and west coast venture capital funds. Dimitry is an active member of the Boston Bar Association and served as the Co-Chair of the Mergers and Acquisitions Committee of the BBA in 2009-2010. He is also adjunct professor of law with the New England School of Law located in Boston, where he has taught Corporate Mergers & Acquisitions since 2005.
In 2011, Dimitry was selected as one of the top 20 startup lawyers in Massachusetts in a survey conducted by ChubbyBrain. Prior to founding Herman, Dimitry was a partner at Hinckley Allen, and was associated with Bingham McCutchen and WilmerHale. Dimitry received his law degree from Columbia University Law School and his undergraduate degree from Colgate University. Dimitry is fluent in Russian.
Please join me in welcoming Dimitry.
Mitchell H. Rubinstein