Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Monday, March 9, 2015

Separation of Powers and the Non-delegation Doctrine

Department of Transportation v. Association of American Railroads, No. 13-1080 (March 9, 2015) is one of those administration law cases that to the casual observer at first glance looks complicated, technical and, to be honest, boring.  The case exists because in 2008, Congress granted Amtrak and the Federal Railroad Administration joint authority to issue "metrics and standards" relating to Amtrak's scheduling and performance.  The Association ("AAR") challenged this authority in this case because the metrics and standards imposed adversely affects their members' freight business interests.  Normally, this is the type case I would not even read.  I'm sure glad I did.

The AAR argued Congress violated separation of powers rules by delegated this rule-making authority to Amtrak -- a private entity.  The Court of Appeals held for AAR on both issues -- that Amtrak was a private entity and that the Congress's delegation of authority violated separation of powers.  The Supreme Court reversed that first finding today and held unanimously that for separation of powers purposes, Amtrak is a government entity[1].  The Court remanded the case to the Court of Appeals for further consideration in light of this holding. 

Justice Kennedy wrote the opinion joined by seven other Justices, including Justice Alito, who concurred.  Justice Kennedy acknowledges that further litigation will determine whether Amtrak's role in setting rail regulations passes constitutional muster.  Justice Thomas concurred in the judgment only.  Justices Alito wrote about the implications for the Amtrak legislative and regulatory scheme now that Amtrak is held to be a governmental entity for these purposes.  These issues include the oath or affirmation requirement in Art. IV, cl. 3; the commission requirement in Art. II, Sec. 3, cl. 6; the scope of the relatively obscure non-delegation doctrine and whether Amtrak's legislative and regulatory scheme violates separation of powers. 

Justice Thomas goes further -- his concurring opinion is a lengthy and powerful commentary on the  separation of powers doctrine's history and purpose.  He concludes his opinion this way:

In this case, Congress has permitted a corporation subject only to limited control by the President to create legally binding rules. These rules give content to private railroads’ statutory duty to share their private infrastructure with Amtrak. This arrangement raises serious constitutional questions to which the majority’s holding that Amtrak is a governmental entity is all but a non sequitur.  These concerns merit close consideration by the courts below and by this Court if the case reaches us again. We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.

This case is going back to the Court of Appeals and may be satisfactorily resolved there or below, but the Court's decision and opinions today set the stage for a possible major showdown on separation of powers and the Court's non-delegation doctrine. 

For Background:

Edit to add: 

Craig Estlinbaum

[1] The Court previously held Amtrak to be a "Government actor" for First Amendment purposes in Lebron v. National R. R. Passenger Corp., 513 U.S. 374 (1995).

March 9, 2015 in Administrative Law, Constitutional Law, Interesting Cases, Recent Developments, Supreme Court | Permalink | Comments (1)

Thursday, March 5, 2015

Two Symposia

There are two symposia of potential interest tomorrow:

In New York City, Fordham Law Review hosts "Fighting Corruption in America and Abroad," a one-day symposium.  The full schedule is here.

In Gulfport, Florida, tomorrow, Stetson Law review hosts, "Inequality, Opportunity and the Law of the Workplace."  There is more information here.

Craig Estlinbaum

March 5, 2015 in Conferences, Faculty | Permalink | Comments (0)

Wednesday, February 25, 2015

Attorney Strike


Several years ago, I published a short article where I explained that attorneys are employees too and are entitled to the same protections as everyone else. You can download a copy of that article at no charge here.

The reality is that there are very few attorney labor unions. Frankly, there should be much more because many attorneys work under deplorable conditions. In early February, attorneys at MFY Legal Services went on strike. Their strike was recently settled

I bring this to you attention as another example of the importance of unions to the working people of this country which include attorneys. 

Mitchell H. Rubinstein

February 25, 2015 in Labor Law | Permalink | Comments (4)

Monday, February 9, 2015

How Much Is An Adjunct Worth?


We all know that adjuncts are underpaid-grossly underpaid. But, how much are we worth? Certainly, most would agree that law school and med school profs should be paid more than college profs because the tuition is much higher. But, what are college adjuncts worth? What are law school adjuncts worth?

A Feb. 9, 2015 Inside Higher Education article discusses a proposal of the SEIU, a union, that profs get paid $15,000 per course. The article states that many view this as shocking:

Most observers agree that adjunct instructors deserve better pay, but what about $15,000 per course? The Service Employees International Union shocked even some adjunct activists last week when it announced that figure as a centerpiece of its new faculty advocacy campaign. But while union leaders admit the number is bold, those involved in the campaign say adjuncts might as well aim big, since they have little to lose. They also say they hope the $15,000 figure will force a national conversation about just how colleges spend their money, if not on middle-class salaries for instructors.

I do not find this shocking at all. In most law schools, FT faculty teach 2 classes a semester. While the amount they make varies widely, many schools start them out in the $140,000 range and it goes up from their. They also get benefits, an office a research budget.

So, if you pay an adjunct $15,000 per course, that comes to $60,000 per year. That is still a bargain-a big bargain for universities. Yes, I know most adjuncts do not do research-though some do and I do, but is research worth close to $100,000 per year.

Now, I now the numbers would be a bit different for colleges because college profs tend to teach more classes. However, it is submitted that adjuncts are grossly underpaid in colleges as well. 


Maybe some day, colleges and grad schools will recognize if you pay adjuncts a decent wage, they will get a better employee, a motivated employee. Guess who benefits? The students!!! But since when is this about the students???

Think about it.

Mitchell H. Rubinstein 


February 9, 2015 in Adjunct Information in General, College Professors | Permalink | Comments (1)

Friday, February 6, 2015

Despite Failure to Call In, Claimant Is Entitled To Unemployment

Matter of Pratt (Cellular Sales) v. Commissioner of Labor, ____A.D.3d___(3d Dep't. 2015), is an interesting Unemployment decision. I bring it to the readers' attention because it demonstrates how, courts, in my view, often tip the balance in favor of the discharged employee. We all know that an employee is not eligible for unemployment for misconduct, but what is misconduct? The court explains:

The employer contends that claimant engaged in disqualifying misconduct by failing to abide by its call in policy prior to being absent for two consecutive shifts and that this amounted to a resignation under the provisions of the employee manual. Initially, we note that whether an employee's actions rise to the level of disqualifying misconduct for unemployment insurance purposes is a factual issue for the Board to resolve and its determination will be upheld if supported by substantial evidence (see Matter of Cardenas [Metropolitan Cable Communications, Inc.—Commissioner of Labor], 118 AD3d 1234, 1234-1235 [2014]; Matter of Andrews [A.C. Roman & Assoc.—Commissioner of Labor], 118 AD3d 1216, 1216-1217 [2014]). Here, claimant stated that he was unaware of the employer's call in policy and did not contact his supervisor prior to his absences on August 20 and August 21 because he thought that this had been taken care of when he reported to his supervisor that he was locked out of the system, at which point he could not perform any work. In view of this, as well as the absence of any indication that claimant had time or attendance problems in the past, the Board could reasonably conclude that claimant did not engage in disqualifying misconduct (see Matter of Jaiyesimi [ISS Action Inc.—Commissioner of Labor], 114 AD3d 983, 984 [2014]). Accordingly, substantial evidence supports the Board's decision and we decline to disturb it.

Mitchell H. Rubinstein

February 6, 2015 in Employment Law | Permalink | Comments (0)

Wednesday, February 4, 2015

Dismissed Medical Student Unsuccessfully Sues His Medical School

Sarwar v New York Coll. of Osteopathic Med. of N.Y. Inst. of Tech. 2015 NY Slip Op 30128(U) (Nassau Co. 2015), is an interesting decision.  Download Sarwar v. NY College of Osteopathic Medicine, 2015 NY Slip Op 30128 (Nassau Co. 2015) 

Though the decision is written in a somewhat conclusionary fashion, it does hold that the plaintiff is time barred because he did not commence within the time frame permitted by Article 78. The court also discussed the deference due to the school, stating:

"Strong policy considerations militate against the intervention of courts in controversies
relating to an educational institution's judgment of a student's academic performance" (Matter oj Susan M v. New York Law School, 76 N.Y.2d 241, 245 [1990]). "Courts retain a restricted role" in dealing with and reviewing controversies involving institutions of higher learning. (Maas v. Cornell Univ., 94 N.Y.2d 87, 92 [1999]). "CPLR aiiicle 78 proceedings are the appropriate vehicle because they insure that the over-all integrity of the educational institution is maintained". Id. Although couched in the complaint herein in terms of breach of contract and unjust enrichment, plaintiffs complaint is in fact a challenge to defendant's academic and administrative decisions, and consequently the redress for his dismissal was an Article 78 proceeding, instead of this plenaiy action (Keles v. Trustees of Columbia Univ. in the City of NY, 74 A.D.3d 435 [1st Dept. 2010], Iv. app. dsmd 16 N.Y.3d 890 [2011], cert. den. 132 S. Ct. 255 [2011]); Padiyar v. Albert Einstein Coll. of Medicine of Yeshiva Univ., 73 A.D.3d 634 [1st Dept. 2010], Iv. app. den. 15 N.Y.3d 708 [2010]; Gary v. New York Univ., 48 A.D.3d 235 [1st Dept. 2008]; Frankel v. Yeshiva Univ., 37 A.D.3d 760 [2d Dept. 2007], lv. app. den. 9 N.Y.3d 802 [2007]; Bottalico v. Adelphi Univ., 299 A.D.2d 443 [2d Dept. 2002]; Diehl v. St. John Fisher
Coll., 278 A.D.2d 816 [4th Dept. 2000], Iv. app. den. 96 N.Y.2d 707 [2001]; 1\1elvin v. Union Coll., 195 A.D.2d 447 [2d Dept. 1993]).
Furthermore, as the limitations period for commencement of an Article 78 proceeding is
within four months after the determination to be reviewed becomes final and binding (CPLR 217; see Padiyar, supra, and Bottalico, supra), any claim plaintiff might have had is time-barred (Padiyar, supra; Frankel, supra; Bottalico, supra). This finding of untimeliness applies to plaintiffs breach of contract claim as well as the claim for unjust enrichment. (Kickertz v New York Univ., 110 A.D.3d 268, 276-277 [1st Dept. 2013]). Under these circumstances, conversion by this Cowt of this action to a special proceeding is not available (Keles, supra), and the complaint must be dismissed.
For the record, this is not a case where plaintiff alleges that defendant failed to comply
with its own obligations as specifically set forth in the school's bulletins, circulars, student
handbook and regulations (cf. Clogher v. New York Med. Coll., 112 A.D.3d 574, 576 [2d Dept. 2013]). Nor is it a case where arbitrary action taken against a student was predicated upon grounds unrelated to academic performance (cf. Matter of Rizvi v. New York Coll. of Osteopathic Medicine of N. Y. Inst. of Tech., 98 A.D .3d 1049 [2d Dept. 2012]). Nor yet is this a case where dismissal is premature (Eidlisz v. New York Univ., 15 N.Y.3d 730 [2010]). 
Plaintiff does not allege that any specific policy, rule, guideline or regulation was
violated by defendant (Ga1y, supra). Instead, he suggests that religious discrimination played a role in his dismissal, although any claim for religious discrimination under the state Human Rights Law would be untimely under the three-year limitations period for discriminatory practices (CPLR §214(2); Murphy v. American Home Prods. Co1p. , 58 N.Y.2d 293, 239 [1983]).

Mitchell H. Rubinstein

February 4, 2015 in Education Law | Permalink | Comments (0)

Denver: Crimmigration Symposium

On February 6-7, the Denver Law Review is hosting a two-day symposium, "CrImmigration: Crossing the Border Between Criminal Law and Immigration Law."  Registration information and the speaker's schedule is here.

Craig Estlinbaum

February 4, 2015 in Conferences, Faculty, Criminal Law, Law Review Articles | Permalink | Comments (0)

Monday, January 26, 2015

"Information for Submitting Articles to Law Reviews & Journals"

Profs. Rostron and Levit's comprehensive guide, "Information for Submitting Articles to Law Reviews & Journals," has been updated for 2015.

H/T: Brian Leiter's Law School Reports.

Craig Estlinbaum

January 26, 2015 in Law Professors, Law Review Articles | Permalink | Comments (0)

Friday, December 19, 2014

Judge Edwards on Law Reviews

The Virginia Law Review has published "Another Look at Professor Rodell's Goodbye to Law Reviews" by Judge Harry Edwards (D. C. Circuit) in its November 2014 issue.   Michael Dorf (Cornell) added his thoughts here.

Craig Estlinbaum

December 19, 2014 in Judges, Law Professors, Law Review Articles | Permalink | Comments (0)

Friday, December 5, 2014

NY Times Labor Reporter Steve Greenhouse Takes Buyout

Politico reports that NY Times Labor Reporter Steve Greenhouse took a buyout.

As the article states:

Steven Greenhouse, the labor correspondent for the New York Times, took a buyout this week. That decision immediately reduced by 50 percent the number of reporters at major U.S. newspapers who cover labor full-time—even as the dismal situation of the American worker becomes a central preoccupation for American politicians and policymakers. 


To some extent, labor reporters are falling victim to the very same workplace trends they cover. “Newspapers are under the gun financially,” observes Greenhouse, “and they’ve laid off a lot of workers.” Editors, he said, don’t view labor as “the sexiest beat.”

Labor coverage’s decline—like that of labor unions—long predates print journalism’s circulation slide. At Newsweek, for instance, as long ago as 1985, covering labor was no more than an entry-level job. Bob Cohn (today president and chief operating officer at the Atlantic, then my fellow grunt at Newsweek) became labor and workplace correspondent at the tender age of 22. Back then, he and I would swap wisecracks about what a backwater the beat had become.

Read more:

I only met Steve, who is a trained lawyer himself, a few times. Congratulations Steve! Hopefully, the NY Times will recognize the importance of hiring a new labor reporter.

Mitchell H. Rubinstein

December 5, 2014 in Labor Law, News | Permalink | Comments (3)

Thursday, November 13, 2014

Law Review Companions

Mary Whisner at Legal Scholarship Blog has updated a links collection for law review companions at domestic law schools.  Whisner describes the list as a "work in progress," and requests additions.

Craig Estlinbaum

November 13, 2014 in Law Review Articles | Permalink | Comments (0)

Wednesday, November 12, 2014

Indiana Supreme Court Upholds Right To Work Law

The Indiana Supreme Court upheld the law’s constitutionality in a 5-0 decision in Zoeller, et al. v. Sweeney, et al., (Nov. 6, 2014). The decision reverses a lower court decision that previously declared the law unconstitutional. 

Indiana’s Right to Work law prohibits employers from requiring union membership or the payment of dues as a term or condition of employment. A knowing or intentional violation of the law subjects the violator to a Class A misdemeanor.

Mitchell H. Rubinstein

November 12, 2014 in Interesting Cases, Labor Law | Permalink | Comments (0)

Thursday, November 6, 2014

Texas Bar Results

The Texas Board of Law Examiners released results for the July 2014 bar exam yesterday.  A summary:

  • 77.1% overall pass rate;
  • 80.9% pass rate for first-time takers from Texas law schools;
  • 38.9% pass rate for repeat takers from Texas law schools;
  • Baylor had the highest overall pass rate at 90.7, followed by Texas (87.7%) and Houston (85.1%);

This is the complete summary.  Contratulations to the newest Texas attorneys!

Craig Estlinbaum

November 6, 2014 in Bar Association Matters, Lawyers | Permalink | Comments (0)

Wednesday, November 5, 2014

Lahav: The Jury and Participatory Democracy

Alexandra D. Lahav (Connecticut) has posted The Jury and Participatory Democracy at SSRN.  The essay, a contribution to a symposium on the civil jury, has been published by William & Mary Law Review.  The abstract:

Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch.

Craig Estlinbaum

November 5, 2014 in Civil Procedure, Conferences, CLE, Law Review Articles, Litigation | Permalink | Comments (0)

Tuesday, November 4, 2014

Connecticut: Privacy Symposium

The Connecticut Law Review will host its Fall Symposium on November 14, 2014, at the law school.  The symposiuim is titled "The 50th Anniversary of Griswold v. Connecticut, Privacy Laws Today."  The description reads:

Connecticut Law Review presents a symposium every fall to discuss an opportune topic of law. This year, the symposium will address the 50th anniversary of the Supreme Court's decision in Griswold v. Connecticut, exploring the history of the right of privacy through the present day. There will be three main topics discussed: the history of the right to privacy, privacy as sexual autonomy, and privacy as reproductive freedom. The keynote address will be provided by Professor Reva Siegel of Yale Law School.

The website says the symposium is free for those who RSVP by November 10.

Craig Estlinbaum

November 4, 2014 in Conferences, Faculty, Constitutional Law, Law Review Articles | Permalink | Comments (0)

Monday, November 3, 2014

Pryal: A Manifesto for the Freelance Academic

Katie Rose Guest Pryal, Clinical Assistant Professor of Law at UNC-Chapel Hill, has written "A Manifesto for the Freelance Academic" at Vitae.  The subtitle is "Five principles to guide you in a career without a university employer."  At universities today, an increasingly large percentage of classes are taught by adjunct or untenured professors, and this trend is not likely to change soon -- Professor Pryal says as much in her essay. 

Pryal's SSRN page is here and her webpage is here.  As To Kill A Mockingbird remains among my favorite novels, I look forward to reading this essay soon.

Craig Estlinbaum

November 3, 2014 in Adjunct Information in General, Blogs, Faculty, College Professors | Permalink | Comments (0)

Friday, October 31, 2014

Strippers Are ‘Employees' Under Nevada Wage Law

Sometimes you cannot make these cases up. Dancers who perform at a Nevada strip club are employees, not independent contractors, and therefore are covered by the state's minimum wage law, the Nevada Supreme Court rules in a unanimous opinion (Terry v. Sapphire/Sapphire Gentlemen's Club, Nev., No. 59214, 10/30/14).

A copy of this decision can be found on the Nevada Supreme Court's web site, here. In a 20 page decision, the Court applies the economic realities test that is also applied in FLSA cases.

Mitchell H. Rubinstein

October 31, 2014 in Employment Law | Permalink | Comments (1)

Student Loan Forgiveness

Students may find this site of interest.


Hat Tip: Lori Youngston

October 31, 2014 in Colleges, Law Students | Permalink | Comments (0)

Monday, October 27, 2014

Ward Farnsworth at Volokh Conspiracy

Ward Farnsworth will be guest-blogging at The Volokh Conspiracy in the coming days regarding is new book, "Restitution: Civil Liability for Unjust Enrichment"  He posted his first substantive contribution, "Restitution law: Interesting and useful to the few who understand it" earlier today.  I have been teaching Damages at South Texas since 2004 and the chapter on Resitution is one of my favorites.  I am looking forward to his contributions at TVC and to reading the book.

Craig Estlinbaum

October 27, 2014 in Blogs, Faculty, Books, Remedies | Permalink | Comments (0)

Thursday, October 23, 2014

Effective Plea Bargains for Noncitizens

I have posted Effective Plea Bargains for Noncitizens on SSRN.  Here is the abstract:

In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise non-citizen clients regarding the deportation risks associated with a guilty plea. The Court held in that case that a defendant's guilty plea may be involuntarily made when defense counsel fails to advise the client about those deportation risks. Trial judges accepting guilty pleas from criminal defendants have a duty to confirm the defendant makes the plea voluntarily and intelligently. Judges make this determination through the plea colloquy -- a series of admonishments and questions with the pleading defendant done prior to accepting the plea. Padilla at a minimum requires trial judges to inquire whether or not the defendant is a non-citizen, and if so, whether the defendant has received the correct advice regarding the guilty plea's immigration consequences. The judge's failure to do so may result in a conviction tainted by ineffective assistance or supported by a plea not voluntarily and intelligently made.

This Article suggests trial judges should take affirmative steps prior to accepting a non-citizen's plea to reveal whether counsel has provided relevant and correct immigration advice to the defendant. Part I discusses Padilla's facts, rationale and holding, Part II discusses the requirement for a voluntary and intelligently made guilty plea in modern plea bargain jurisprudence and Part III discusses the process for obtaining post-conviction relief for Sixth Amendment violations under Strickland v. Washington's ineffective assistance standard. Part IV closes by discussing best practices for trial judges and counsel to safeguard a non-citizen's rights while developing a record that anticipates post-conviction Sixth Amendment claims.

I presented this paper at an immigration law symposium hosted by The Scholar: St. Mary's Law Review on Race and Social Justice in April.  The students and faculty hosting the event were top notch and I appreciated greatly the chance to meet and work with them all.

Craig Estlinbaum

October 23, 2014 in Conferences, Faculty, Constitutional Law, Criminal Law, Law Review Articles | Permalink | Comments (0)