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.
Job Figures Show Improvement for New York Law Schools is an interesting April 18, 2014 NYLJ article
Read more: http://www.newyorklawjournal.com/id=1202651533889/Job-Figures-Show-Improvement-for-New-York-Law-Schools#ixzz2zXIRFu6O
As the article explains:
Members of the Class of 2013 from New York's 15 law schools are faring slightly better than their predecessors in finding jobs, and also better than their counterparts nationwide, according to entry-level employment data released last week by the American Bar Association.
The small boost came even though the nation's law schools graduated their largest class ever.
For the 5,009 graduates of New York's schools, 62.9 percent had found full-time, permanent jobs requiring bar passage as of Feb. 15, roughly a 3 percentage-point increase over last year. Nationwide, the 57 percent who secured such jobs was not much higher than 2012's 56.2 percent.
Mitchell H. Rubinstein
Thursday, April 17, 2014
Technology advances have changed the way law gets practiced and attorneys not keeping up with the changes are on a road to professional ruin. This at least is the conclusion a judicial panel reached at a recent LegalTech New York conference, reports Joe Dysart, ABA Journal. The judges' comments touched upon e-discovery, ethics and technology. One panelist, U.S. Magistrate Judge James C. Francis of New York's Southern District, summarized, "The absence of technical knowledge is a distinct competitive disadvantage."
Wednesday, April 16, 2014
Yes, it's true and it is by 15%. Story here. Brooklyn is not alone. As CNN reports:
A handful of other schools have cut tuition as well. The most prestigious school in this group is the University of Iowa, which reduced tuition by 16.4%. Others include the University of Arizona (11% in-state, 8% out-of-state) and Roger Williams University (18%). A few schools have really gone all out: Penn State cut tuition by nearly 50% for in-state students in the class of 2014, and the University of La Verne reduced tuition from $39,500 to $25,000 and completely did away with merit aid. (It's worth mentioning that the American Bar Association revoked La Verne's provisional accreditation in 2011; the school has since earned it back.)
Mitchell H. Rubinstein
Tuesday, April 8, 2014
Palladino v. CNY Centro, ___N.Y.3d___(April 8, 2014), is a major decision. In a 5-2 decision the New York Court of Appeals affirms the dismissal of a duty of fair representation case brought against a labor union that refused to take a discharge case to arbitration. Why, because each and every member of the union did not ratify the decision.
In so holding, the Court re-affirmed Martin v. Curran, 303 N.Y. 276 (1951) and quoted my article, Union Immunity from Suit in New York, 2 NYU J. L. & Bus. 641, 649 (2006). The Court correctly reasoned that NY still follows the common law which does not consider unincorporated associations to be juristic entities. Liability remains with the individual union members.
The Court noted the critisim that the Martin rule has received and the fact that it is virtually impossible for any labor union in New York to have common law liability.
The Court, however, noted that Plaintiff could have filed a DFR improper practice under the Taylor Law.
It is feels good to be cited by the Court of Appeals.
Mitchell H. Rubinstein
Monday, April 7, 2014
The Review of Litigation (Texas) is hosting a 1-hour seminar on April 10 titled, "Motions to Dismiss Under New Texas Rule 91a: Practice, Procedure and Review." Attendees will earn one hour of MCLE credit. Click on the link for contact information.
Tuesday, April 1, 2014
Brian Clarke (Charlotte) has written an extremely important and ultimately courageous post, "Law Professors, Law Students and Depression . . . A Story of Coming Out (Part 1)" at The Faculty Lounge on depression and anxiety's alarming incidence among attorneys. Clarke relates some truly disturbing statistics on depression and suicide in the legal profession (emphasis in original):
Lawyers, as a group, are 3.6 times more likely to suffer from depression than the average person. Of 104 occupations, lawyers were the most likely to suffer depression. (Both of these statistics are from a Johns Hopkins University study to which I cannot find a link).
Further, according to a two-year study completed in 1997, suicide accounted for 10.8% of all deaths among lawyers in the United States and Canada and was the third leading cause of death. Of more importance was the suicide rate among lawyers, which was 69.3 suicide deaths per 100,000 individuals, as compared to 10 to 14 suicide deaths per 100,000 individuals in the general population. In short, the rate of death by suicide for lawyers was nearly six times the suicide rate in the general population.
Clarke continues along this vein and introduces his own story fighting mental illness in this first in a three-part series on the subject.
Some states have added a mental health component to the continuing legal education requirements, and many state bar associations have established hotlines and resources for attorneys battling mental illness. The Texas Lawyers Assistance Program serves this latter function in Texas -- the Program's 24-hour hotline number is 1-800-343-8527.
Thursday, March 27, 2014
An NLRB Regional Director ("RD")in Illinois just directed an election in a unit involving college football players. Download Northwestern University RD Decision
The Regional Director held that football players who were given scholarships were employees and not students. The RD applied the common law right to control test.
Of significance is that the RD distinguished Brown University which held that graduate students were not employees. Rather, they were students. According to the RD, graduate assistant responsibilities were inextricabley related to there graduate studies. Additionally, unlike Brown, the RD concluded that the football players were not primarily students, the scholarship was not a core element of their degree, the academic faculty did not supervise the football players and the scholarship was not a form of financial aid.
Those of you who know me, know that I believe that Brown University was wrongly decided and that the Board erred in Brown by not applying the common law right to control test. However, Brown remains the law until it is over-ruled by the Obama Board (which I expect to happen), and I find the RD decision poorly reasoned and disingenous. The basis which the RD used to distinguish Brown make no sense.
The football players are enrolled in the college and they are getting a degree. No doubt they generate income for the college, but so do graduate assistants. The fact that they are not supervised by the academic faculty and that playing football is not financial aid is totally irrelevant. The football players all must be enrolled in the college and I believe the NCAAA even sets academic standards that they must meet.
I doubt however, that this case will be reversed on appeal. As I said, Brown was wrongly decided and this decision may give the Board the opportunity to over-rule it for once and for all.
Mitchell H. Rubinstein
Wednesday, March 26, 2014
South Texas Law Review has released its Volume 55, No. 1, which includes:
- A Comity of Errors: Treading on State Court Jurisdiction in the Name of Federalism, by Emily L. Buchanan;
- The Jurisprudence of Texas Supreme Court Justice Robert A. "Bob" Gammage: A Legacy ofCivil Rights and Liberties, by John C. Domino;
- Ethical Falsehood: Towards a Moral Values Paradigm in False-Speech Adjudication, by Daniel Ross Goodman;
- Challenging the Federal Prohibition on Gun Possession by Nonviolent Felons, by Conrad Kahn.
- Comment: Private Employers & Minority Preferences: Will Somthing Other Than a Remedial Justification be Sufficient, by Jill Hale;
- Comment: Texas' Iron-Clad Corporate Veil: Re-Examining Section 21.223 of the Texas Business Organizations Code, by Rachel Thompson; and
- Comment: Litigant Consent as a Constitutional Threat: Reconsidering the Jurisdiction of Magistrate Courts after Stern v. Marshall, by Lori Yount.
Tuesday, March 25, 2014
Two symposia, one hosted by the Texas Journal on Civil Liberties & Civil Rights, the other by the Virginia Law Review, will begin on March 28.
First, from the Texas Journal on Civil Liberties & Civil Rights website:
TJCLCR is partnering with the William Wayne Justice Center and The University of Texas School of Law's Civil Rights Clinic to present a conference that will examine the law as a tool to close the educational achievement gap, with a special focus on Texas. Closing the achievement gap requires a multi-faceted approach that addresses issues at the community, school, and policy levels. Aimed at education reformers, lawyers, educators, policy makers, scholars, and students, this conference will explore ongoing law-related efforts to close the achievement gap as well as possible future initiatives.
Agenda and registration information for this one-day symposium is here.
The Virginia Law Review will celebrate its 100th year with a symposium discussing "four of the most influential and thought provoking articles published in the Virginia Law Review." The four articles scheduled to be discussed are:
- Anthony J. Bellia, Jr. and Bradford R. Clark, The Law of Nations as Constitutional Law, 98 Va. L. Rev. 729 (2012);
- Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947 (1995);
- Ronald J. Gilson and Reinier H. Kraakman, The Mechanisms of Market Efficiency, 70 Va. L. Rev. 549 (1984); and of course,
- Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38 (1936).
Event details and registration information for this two-day symposium are here.
On April 4, 2014, The Scholar: St. Mary's Law Review on Race and Social Justice is hosting its Immigration Symposium 2014 titled, "Changing the Guard: Empowering Advocacy Through Education," at the Plaza Club in downtown San Antonio, Texas. I will be presenting a paper at this symposium, "Effective Plea Bargains for Noncitizens" The Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356 (2010), held defense attorneys must advise non-citizen clients about the deportation consequences associated with the noncitizen defendant's guilty plea. The paper addresses how this case and cases that followed have affected the plea bargain process in state and federal courts when the defendant is not a citizen. The other presentations are:
- Michelle Garza & Eric Tijerina–“Plight of Unaccompanied Minors Navigating the Immigration Court System and Forms of Relief for Them;”
- Joseph DeMott –“Basics of Immigration Law—Lessons Learned From 38 Years in the Trenches;”
- Angelica Jimenez & Laura Figueroa –“The Slow Yet Long Anticipated Death of DOMA;”
- Adriana Pinon –“Practicing Law in the ‘Constitution-Free Zone’: The Suspension of the Bill of Rights at America’s Borders;”
- Hon. Anibal Martinez & Hon. Craig Harlow –Federal Judicial Panel about Judicial Preferences "Viewing the Front Line from the Bench: What Judges Want Lawyers & Advocates to Know;"
- Jodi Goodwin –“Vacating In Absentia Orders via Motions to Reopen;”
- Roberto & Claudia Balli –“Sentencing Advocacy for Immigrants in Federal Court;” and
- Anne Olrich –“From Consultation to Contract.”
I am very honored to be included in this symposium.
Monday, March 24, 2014
The Hall Center for Law and Health and the Indiana Health Law Review are co-hosting a one-day symposium on March 28 titled, "Neuroscience and Law: Injury, Capacity and Illness." The symposium will be held at Wynne Courtroom and Atrium,Inlow Hall on the law school campus in Indianapolis. Topics include "Neuroscience 2.0 and Tort Law," "Child Contact Sports and Concussion," "Neuroscience and Mental Health Law," "Adolescence, Aging and Capacity," and "Predictive Testing, Decision Making and Ethics."
Acknowledgment: Sheila B. Scheuerman (Charleston) originally posted this item at TortsProf Blog.
Saturday, March 22, 2014
Campbell Law Review has announced a call for papers for its October 17, 2014, symposium, "One City at a Time: The Role and Increasing Presence of Chapter 9 Municipal Bankruptcies." The call for papers announcement is here. HT: Calling All Papers!
Friday, March 21, 2014
Yesterday, a unanimous Supreme Court of Illinois declared the state's eavesdropping law to be unconstitutional. The case is Illinois v. Melongo, No. 114852 (Ill., March 20, 2014).
The statute reads:
(a) A person commits eavesdropping when he:
(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication or (B) in accordance with Article 108A or Article 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended; or
(3) Uses or divulges, except as authorized by this Article or by Article 108A or 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device.
The defendant argued that the statute violated the first amendment both as to the recording provision in (1) and the publishing provision in (3), both facially and as applied. The court observed that the law's stated purpose was to protect conversational privacy. The law, however, "deems all conversations to be private and, thus, not subject to recording absent consent, even if the participants have no expectation of privacy." The court held that the statute, "burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy." Therefore, the recording provision violates the first amendment on its face. The court reached the same conclusion regarding 14-2(a)(1) in a different case presenting different facts the same day in Illinois v. Clark, No. 115766 (Ill. Mar. 20, 2014).
The State conceded that if the recording provision fails first amendment muster, the publishing provision must too fail, due to a U. S. Supreme Court decision on point. Bartnicki v. Vopper, 532 U.S. 514 (2001). In that case, "[t]he Court held that under the first amendment, the state may not bar the disclosure of information regarding a matter of public importance when the information was illegally intercepted by another party who provided it to the disclosing party. The Illinois court determined that because Melongo was in the innocent party's position due to 14-2(a)(1) being declared unconstitutional, a bar against publishing the recording subjected her to a, "naked prohibition against disclosure."
In a Chicago Tribune report on the case, Steve Schmadeke notes (link added):
The decision comes two years after a federal appeals court in Chicago found unconstitutional the law's ban on recording police officers in public. The 7th Circuit Court of Appeals ruling prohibited enforcement of that part of the law shortly before Chicago hosted the NATO summit in May 2012.
Thursday, March 20, 2014
Wednesday, March 19, 2014
Karen Sloan, National Law Journal, reports that Cleveland-Marshall will, "allow students who complete one year of studies but don't want to continue their l.egal educations to receive a master of legal studies degree." HT: Above the Law.
Monday, March 17, 2014
SMU's Journal of Air Law and Commerce is hosting its 48th Annual Air Law Symposium on April 3-4 at the Omni Mandalay Hotel in Las Colinas, Texas. Information on this symposium, including agenda and registration details, is found here.