Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, July 3, 2015

New York City’s Office of Administrative Trials and Hearings is seeking individuals to serve on its Contract Dispute Resolution Board panels

New York City’s  Office of Administrative Trials and Hearings [OATH} is accepting applications from qualified persons who would like to serve on Contract Dispute Resolution Board (CDRB) panels.
Each CDRB panel consists of an OATH ALJ, as chair, a representative of the Mayor’s Office of Contract Services, and a third member selected from a pre-qualified roster of individuals, established and administered by OATH, who has appropriate expertise and is unaffiliated with the City.
Mitchell H .Rubinstein

July 3, 2015 in Lawyer Employment, Lawyers | Permalink | Comments (1)

Thursday, July 2, 2015

Captains Are Not Supervisors

The Board recently held in Cook Inlet Tug & Barge, Inc., 362 NLRB No. 111 (2015),  that captains of tugboats are not supervisors.  Despite arguments by the company that the captains are supervisors because they exercise assignment authority on the boat, the Board found that any instructions given by the captains were not the result of “independent judgment” and therefore could not be an “assignment in the statutory sense.”  Instead, the alleged assignments by the captains were “ad hoc instructions,” such as closing a hatch, that naturally arise out of having one deckhand accompany a captain on a boat.

As you could expect, Member Miscimarra dissented, asserting that the captains were “ultimately accountable for everything that happens on [the boats].”

 This case may have implications in other industries.

Mitchell H. Rubinstein



July 2, 2015 in NLRB | Permalink | Comments (1)

Saturday, June 27, 2015

New Edition of Randall & Randall The Discipline Book

The Randalls just updated their treatise entitled  The Discipline Book.  The 2015 edition is available in both a softcover and an e-book format.

The URL is

Both versions are now 458 pages to accommodate the softcover book format. The authors substituted summaries for the "full text" of the decisions set out in the earlier editions and added new case material. There are "links" to full text of in the e-book version and "text" URLs in the softcover version.

This book remains "the" treatise on public sector employee discipline in New York State and I could not imagine any employer or union side practice without it. The book outlines the Civil Service Law, Section 75 cases, Education Law 3020-a cases as well as a whole host of other cases. It is basically an A-Z book on discipline.

This years edition is quite easy to utilize in that the table of contents is updated. Additionally information, including instructions about purchasing it, can be found in the link above.

Mitchell H. Rubinstein 

June 27, 2015 in Book Reviews, Books | Permalink | Comments (0)

Wednesday, May 27, 2015

Labor Art Exhibition

St. Louis labor lawyer Bruce Feldacker is a collector of labor art. His collection is described here.  From May 24, 2014 through August 2, 2015, his collection will be on display at the Cedarhurst Museum in Mt. Vernon, Illinois. Details are available by clicking  Download Press Release Labor Art Exhibit-1_1

If your in the area this summer, for those interested in labor history, this looks like a wonderful thing to do.

Mitchell H. Rubinstein


May 27, 2015 in Labor Law, Misc., Non-Legal | Permalink | Comments (0)

Wednesday, May 13, 2015

Goldman and Reyes: Competitive Keyword Advertising and Legal Ethics

I am fascinated how new technology challenges existing legal and judicial ethics rules and canons.  An article forthcoming in University of Illinois Law Review, written by Eric Goldman and Angel Reyes, III titled, "Regulation of Lawyers’ Use of Competitive Keyword Advertising" addresses just such an issue.  Here is the abstract:

Lawyers have enthusiastically embraced search engine advertisements triggered by consumers’ keywords, but the legal community remains sharply divided about the propriety of buying keyword ads triggered by the names of rival lawyers or law firms (“competitive keyword advertising”). This Essay surveys the regulation of competitive keyword advertising by lawyers and concludes that such practices are both beneficial for consumers and legitimate under existing U.S. law - except in North Carolina, which adopted an anachronistic and regressive ethics opinion that should be reconsidered.

The article is available at SSRN here.  Josh King, blogging at Socially Awkward, describes competitive keyword advertising this way: "1.  “Buy” the name of your competitor from Google.; 2.  When potential clients search Google for that competitor, your ad appears.  3.  Profit!!"  That's easier to understand, I guess, though I imagine there must be something more between steps 2 and 3.

Eric Goldman has written a shorter essay about legal ethics and competitive keyword  advertising in Forbes.  Florida has issued an ethics opinion approving the practice -- North Carolina contra.

Hat Tip to Carolyn Elfant at My Shingle, who offers her own take on the practice.

Craig Estlinbaum

May 13, 2015 in Ethics, Law Review Articles, Technology | Permalink | Comments (0)

Tuesday, May 12, 2015

Chemerinsky on the Uniform Bar Exam

In an LA Times editorial yesterday, Erwin Chemerinsky, Dean of Cal-Irvine Law, urges California to adopt the standardized Uniform Bar Exam.  New York has recently done the same.

Craig Estlinbaum

May 12, 2015 in Bar Association Matters, Law Review Ideas, Law Students, Lawyer Employment, Lawyers | Permalink | Comments (0)

Monday, May 11, 2015

Book Review Highlight; Clark, Cross-Examination Handbook

Professors Clark, Dekle, Sr. and Bailey just published the second edition of Cross Examination Handbook.  We reviewed the first edition of this book and this edition is even better. 

I have cross examined thousands of witnesses over my 29 years of labor litigation. I can say without qualification that cross examination is particular skill which is not easily mastered. Even the most experienced lawyers often have difficulty mastering this skill.

As the title implies, this book is a handbook. It is a how too book and is designed to teach the student how to impeach a witness and how utilize a witnesses prior inconsistent statements as well as a host of of other issues. It provides concrete strategies for overcoming obstacles students and lawyers commonly face in cross examination.  

This book should be required reading in any class on trial advocacy and many lawyers should maintain a copies in their library as well.

Mitchell H. Rubinstein  

May 11, 2015 in Book Reviews | Permalink | Comments (0)

Book Review Highlight Berger, Trial Advocay

Professors Berger, Mitchell and Clark recently published the 4th edition of Trial Advocacy

As the title states, this book focuses on trial advocacy. It is designed to help students learn to "think like lawyers." It focus on trial preparation and management.  The book itself is divided into  14 chapters. Each chapter covers a separate trial subject area—persuasion, jury selection, opening statement, objections, etc.  Each chapter presents a theoretical and practical approach to the particular skill that is the subject of that chapter, provides illustrations of practice as applied to hypothetical situations, and offers a series of practical and strategic pointers in the subject area.  Most of the assignments involve role play.

We have reviewed this book before and quite simply, the authors have "done it again." Professors looking to review a book on Trial Advocacy cannot do much better than this one. Additionally, the book is so well written, that practicing attorneys would likely find this book useful as well.

Mitchell H. Rubinstein


May 11, 2015 in Book Reviews | Permalink | Comments (0)

Wednesday, May 6, 2015

Savannah: Walking Dead Symposium

Alfred Brophy  at The Faculty Lounge has posted information about a call for papers for Savannah Law Review's September 15-16, 2015, symposium, "The Walking Dead."  From Brophy's post:

The Walking Dead Colloquium will provide a forum to discuss the “shadowy” legal interpolation of the dead on the living and explore both its positive and negative ramifications in an effort to strike a pluralistic balance between the law of past, present, and future.  Thematic examples may include legal recognition of the dead’s wishes affecting real property and intellectual property; regulation of pandemics from yellow fever to Ebola; constitutional analysis relying upon views of the dead—the Framers—versus a “living” Constitution; and other myriad examples of the dead influencing law: the death penalty; desecration laws; the Right to Die Movement; posthumous evidentiary privileges; wrongful death and rights of survivorship; regulation of corpses, organ donation, and burials; stigma harms to real property inhabited by ghosts; and post-apocalyptic justice.

The information also appears at  Calling All Papers!.

Craig Estlinbaum

May 6, 2015 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Tuesday, April 28, 2015

Judge Admonished for Facebook Post

Monday, April 27, 2015

Roberts Court at 10: The Fourth Amendment

On September 29, 2005, The United States Senate confirmed then appellate court judge John Roberts to be Chief Justice of the United States.  The current October 2014 Term for that court marks the tenth term completed with Roberts at the helm.  We can therefore expect a flurry of ten year reviews this summer and beyond.  The Constitutional Accountability Center has posted "Roberts at 10: Roberts and the Fourth Amendment:  A Mostly Pro-Government Vote with Some Important Exceptions" at the CAC's website.  The paper is authored by Briane Gorod.

Craig Estlinbaum

April 27, 2015 in Constitutional Law, Criminal Law, Supreme Court | Permalink | Comments (1)

Friday, April 17, 2015

Judge's Facebook Comments Raise Ethics Questions

From the ABA Journal earlier this week:

A judge in Louisville, Kentucky, says he was cautioning parents about racial stereotypes when he criticized a victim-impact statement on Facebook.

[The judge}...didn’t identify the crime victims by name when he wrote about the statement, which claimed that a home invasion and robbery had left a young girl with a fear of black men, the Courier-Journal reports in a story reprinted by USA Today.  The girl was 3 years old at the time of the crime, committed by two African-American men, in March 2013.

The ABA Journal's story goes on to provide comments from law professors Ronald Rotunda (Chapman), Jeffrey Shaman (DePaul) and Charles Gey (Indiana) on the ethics considerations rising from the judge's Facebook comments

The use of social media by judges is fraught with ethical traps.  Whether the judge's comments in this case cross the line or not will depend on the facts and the specific language in Kentucky's judicial ethics canons.  Kentucky, as it happens, is one of the few states with a judicial ethics opinion regarding a judge's social media participation

The National Center for State Courts has compiled a list of states that have, through their respective advisory or ethics committees, issued judicial ethics opinions relating to judges using social media.

See Also:

Craig Estlinbaum

April 17, 2015 in Ethics, Judges | Permalink | Comments (0)

Thursday, April 16, 2015

E-Discovery, the Fourth Amendment and New Technology

I am always amazed at the ways new technologies raise into Fourth Amendment questions.  Monday, Michael Rich (Elon) posted "Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment." on SSRN as yet another example of a new technology giving rise to real Fourth Amendment issues.  The article is forthcoming in the University of Pennsylvania Law Review.  Here is the abstract:

At the conceptual intersection of machine learning and government data collection lie Automated Suspicion Algorithms, or ASAs, algorithms created through the application of machine learning methods to collections of government data with the purpose of identifying individuals likely to be engaged in criminal activity. The novel promise of ASAs is that they can identify data-supported correlations between innocent conduct and criminal activity and help police prevent crime. ASAs present a novel doctrinal challenge, as well, as they intrude on a step of the Fourth Amendment’s individualized suspicion analysis previously the sole province of human actors: the determination of when reasonable suspicion or probable cause can be inferred from established facts. This Article analyzes ASAs under existing Fourth Amendment doctrine for the benefit of courts who will soon be asked to deal with ASAs. In the process, the Article reveals how that doctrine is inadequate to the task of handling these new technologies and proposes extra-judicial means of ensuring that ASAs are accurate and effective.

For lawyers (and judges, too), it is very difficult to stay current on new technology -- and naturally even more difficult to imagine the ways this technology intersects our cases.  With this in mind, consider Jeff Bennion's excellent essay at Above the Law yesterday, "Litigators Who Don’t Know Enough About E-Discovery Should Be Afraid, Very Afraid."  This essay considers a proposed California ethics rule (or opinion) on the attorney's duties relating to technology.  Bennion makes a keen observation that it is increasingly impossible for attorneys to avoid technology issues compared to the ease with which attorneys can avoid certain types of cases (say, criminal cases) or matters (say, drafting wills):

The difference is that e-discovery can creep into any field of litigation. You don’t work on a products liability case and suddenly find yourself surrounded by the world of holographic wills. You don’t work up a partnership dispute case and suddenly find yourself having to prepare child custody declarations. But if your case involves parties or witnesses who text, Facebook, e-mail, or have information on computers, you can find yourself surrounded by boring and horrible questions about things like clawback agreements and native files and load files and computer forensics and preservation holds, and the like. Suddenly lawyers who still use WordPerfect are forced to be technology experts.

(Full Disclosure:  I still use WordPerfect).  What does this mean for adjunct professors (or even tenured professors)?  When I was in college, I remember a professor assigning an essay where a meaningful portion of the grade was grammar and spelling.   Obviously, there were complaints from most (read: all) of us, but his reasoning made sense, and I'm paraphrasing -- Good grammar and correct spelling are too important to be left to the English Department.  Well, maybe in law schools, how law and technology intersect is too important to be left to ... well I don't know who, but hopefully you get the point.  It is probably not necessary for every law professor to be a tech wizard, but it is absolutely necessary for professors to provide every student in every class the opportunity to learn that the days when attorneys could wear their neo-luddite credentials as a badge of honor are dwindling if not already long, long gone.

Craig Estlinbaum

April 16, 2015 | Permalink | Comments (0)

Friday, April 10, 2015

Duke Adjunct Receives Distinguished Teaching Award

Professor Paul Caron who owns the law professor blog network that hosts this blog and is the editor of Tax Prof Blog recently sent me a note to inform me that Daniel Bowling, III received a distinguished teaching award

While congratulations are certainly in order for Professor Bowling, this does not surprise me. In fact, I am a bit surprised that Paul even sent me this link to post. 

In the 2 laws schools that I have taught in (St. John's and New York Law School), students consistently have told me that they get more out of classes taught by adjuncts because of their focus on practice. Readings taken out of text books that merely survey the law are not that useful. It would be much more useful if professors would focus on a particular jurisdiction where, as a practical matter, most students will wind up working.

But, most professors can't because most law school professors never practiced or practiced for less than 5 years. This, of course, is nothing new and a problem with legal education today.

Now, there are exceptions, particularly in specialized areas of law such as tax and the FRCP where you could learn something immediately useful. There, are of course, many wondeful FT professors as well.

Am I biased. You bet I am. I am an adjunct.

Mitchell H. Rubinstein 


April 10, 2015 in Adjunct Information in General, Adjuncts in the News | Permalink | Comments (2)

Thursday, April 9, 2015

New Immigration Clinic at South Texas

South Texas College of Law is opening a new immigration clinic the school announced earlier this week.

The General Immigration Clinic’s mission is to work with the region’s legal service network to provide pro bono legal assistance to unaccompanied minors, adults, and families, and to build on its existing program to expertly educate and train students in immigration law.

The clinic, part of the College’s Randall O. Sorrels Legal Clinics, will focus on helping immigrants with basic benefits such as naturalization and green cards as well as Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) cases. South Texas already is home to the Asylum and Human Trafficking Clinic, which handles more complex immigration issues.

The clinic will handle 450-720 clients per year with 10-12 students participating each semester.  This clinic is funded in part by a significant grant from Houston Endowment.

Craig Estlinbaum

April 9, 2015 in Law Schools | Permalink | Comments (0)

Wednesday, April 8, 2015

Elhauge: Contrived Threats v. Uncontrived Warnings

Einer Elhauge (Harvard) has posted "Contrived Threats v. Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail" on SSRN.  The article is forthcoming in University of Chicago Law Review.  This is the abstract:

Contractual duress, unconstitutional conditions, and blackmail have long been puzzling. The puzzle is why these doctrines sometimes condemn threatening lawful action to induce agreements, but sometimes do not. This article provides a general solution to this puzzle. Such threats are unlawfully coercive only when they are contrived, meaning the threatened action would not have occurred if no threat could be made. I show that such contrived threats can be credible because making the threat strongly influences whether the threatened action occurs. When such threats are uncontrived warnings, meaning the threatened action would have occurred even if no threat could be made, they are not coercive and can only benefit the agreeing parties. However, sometimes (as with blackmail) agreements produced by uncontrived warnings are also unlawful on the different grounds that they harm third parties. The contrived-threat test explains why the Medicaid defunding threat in Obamacare was unconstitutional and why (in the pending Supreme Court case) interpreting Obamacare as threatening to withhold tax credits from States that do not create insurance exchanges should either be rejected under the canon of avoidance or result in constitutional invalidation of that threat.

Craig Estlinbaum

April 8, 2015 in Constitutional Law, Contract Issues, Law Review Articles | Permalink | Comments (0)

Fifth Circuit: Arbitrator's Attorney's Fee Award Reinstated

The Fifth Circuit Court of Appeals reversed a District Court judgment and reinstated an arbitrator's attorney's fees award last week.  The case is Campbell Harrison & Dagley v. Hill, No. 14-10631 (5th Cir., April 2, 2015).

The underlying claim is an attorney's fees dispute that arose after Hill terminated two law firms' litigation services.  The contract between the Hill and each law firm provided for a hybrid-fee agreement with an hourly rate plus a contingency.  Hill later settled his underlying case for "approximately $188 million," and Hill refused to pay the two law firms.  The law firms sued Hill for their unpaid fees.

After the district court referred the case to arbitration as provided by the contract and after a nine day hearing, the arbitrator rejected Hill's defenses and awarded the two firms over $3.3 million in hourly fees plus their 15% contingency -- an additional $25 million.  The firms moved the district court to confirm the award; Hill moved to vacate on evident partiality, unconscionability and public policy grounds.  The district court vacated the contingency portion for unconscionability.

The Fifth Circuit noted the highly deferential consideration given to an arbitrator's award under Texas law.  "Under Texas law," the court wrote, "review of an arbitration award is so limited that an award may not be vacated even if there is a mistake of fact or law."  Further, the court cautioned that a court may not substitute its judgment for the arbitrator's simply because it would have reached a different decision.  The only grounds for vacation an arbitration award are corruption, fraud, evident partiality or the arbitrator exceeding its powers.  An award may also be vacated on common law grounds of "manifest disregard of the law, gross mistake and an award that violates public policy."  In reversing the award, the Fifth Circuit held the district court improperly substituted its judgment for that of the arbitrator.  The panel reversed the district court, rendered judgment on the arbitrator's award and remanded the case to the district court to determine pre-judgment interest.

Craig Estlinbaum


April 8, 2015 in Arbitration Law, Legislation | Permalink | Comments (0)

Thursday, April 2, 2015

That Bob Dylan Moment

Al Kooper's story about how he came to play on Bob Dylan's iconic song, "Like a Rolling Stone," remains among my favorite stories in music.  Kooper, the story goes, was in the studio as Dylan and his band recorded that song, but was not schedule to play.  Kooper took advantage of an opportunity to play and ultimately, his work became a signature feature in the song.  Kooper, in his singular style, related this story on the Martin Scorsese documentary "No Direction Home." 

Today at, John Greathouse relates Kooper's story and asks, "Did You Miss Your Bob Dylan Moment?"  Honestly, I until reading Greathouse's article, I never fully grasped the valuable life lesson lurking within Kooper's anecdote.  This is recommended reading.

Craig Estlinbaum

April 2, 2015 in Articles, Music | Permalink | Comments (0)

Wednesday, April 1, 2015

Call For Papers“Creating Excellence in Learning and Teaching for Today’s Law Students.”

Arizona Summit Law School will be celebrating its 10th Anniversary with a conference entitled “Creating Excellence in Learning and Teaching for Today’s Law Students.” Additional information can be found by clicking  Download Call for Papers-Presentations 1 page

Hat Tip: Professor Marren Sanders

Mitchell Rubinstein

April 1, 2015 | Permalink | Comments (0)

Kerr: Kant, Evidence and 18th Century Bulgaria

Orin Kerr has posted "The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria" at SSRN.  Kerr's short essay, a response to Chief Justice Roberts' 2011 critique of law reviews, is forthcoming in The Green Bag.  This is the abstract:

In 2011, Chief Justice Roberts commented that if you "pick up a copy of any law review that you see," "the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I'm sure was of great interest to the academic that wrote it, but isn't of much help to the bar.” No such article exists, of course -- until now. This short essay explains why, in all likelihood, Kant’s influence on evidentiary approaches in 18th-century Bulgaria was none.


Craig Estlinbaum

HT: Lawrence Solum, Legal Theory Blog.

April 1, 2015 in Law Professors, Legal Humor | Permalink | Comments (3)