Wednesday, April 8, 2015
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.
Thursday, April 2, 2015
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 forbes.com, 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.
Wednesday, April 1, 2015
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
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.
HT: Lawrence Solum, Legal Theory Blog.
- What is (should be) the scope and limitation of the power to search cell phones and/or computers?
- What is (should be) the scope and limitation of police power to track suspects?
- What is (should be) the scope and limitation of governmental power to collect DNA?
Click here for more information.
Tuesday, March 24, 2015
South Texas Law Review's "Symposium: Bankruptcy Best Practices from the Bench and Bar," held in October 2013, is now in print:
- "A Survey of Sanctions in Bankruptcy Courts: The Fifth Circuit and Beyond (Robin Russell)
- "A Debtor's Duty to Update the Court" (Amy Catherine Dinn)
- "Chapter 7 Debtor's Duty to Cooperate with the Trustee (Rhonda R. Chandler, Lauren M. Virene)
- "Keeping Things In-House: Increasing Scrutiny of the Chapter 7 Trustee's Selection of Counsel" (Spencer D. Solomon)
- "Removal of teh Trustee From Office Under Sec. 324 of the Bankruptcy Code" (Vianey Garza)
- "An Ethics Review of Issues in Seeking to Represent Debtors and Committee: Professionals' Solicitation of Clients in Bankruptcy" (Patrick L. Hughes)
- "Ethical Considerations When Litigating Against a Pro Se Debtor" (Ashley Gargour)
- "Dual Representation Can Lead to a Duel with Your Clients" (Karmyn Wedlow, Jennifer Buchannan)
Thursday, March 19, 2015
Professor Mark Weber has just posted an interesting article on SSRN which will appear in Boston College Law Review. The abstract provides as follows:
American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent before they will remedy disability discrimination. These intent requirements have come into the law almost by accident: through a statutory analogy that appears apt but is in fact false; by continued repetition of language pulled from an obsolete judicial opinion; and by doctrine developed to avoid a conflict with another law when the conflict does not actually exist. Demanding that section 504 and Americans with Disabilities Act claimants show intentional discrimination imposes a burden found nowhere on the face of those statutes or their interpretive regulations.
This Article spells out the reasons not to impose any intent requirement either for liability or for monetary relief in section 504 and ADA cases concerning reasonable accommodations. It makes the uncontroversial point that no intent requirement applies to ADA employment cases, then explains that the same conclusion ought to apply to cases under the ADA’s state and local government provisions and section 504. It rebuts an analogy to caselaw under Title VI and Title IX of the Civil Rights Act that some courts use to support an intent requirement. It then identifies and corrects the reasoning of cases relying on the inappropriate analogy, those that rest on the obsolete precedent, and those that refuse to apply a full range of remedies for fear of conflict with the federal special education law.
This Article breaks new ground in the scholarly discussion of the disability discrimination laws by placing into context and critiquing the infiltration of intent requirements into cases brought under the provisions that bind state and local government and federal grantees. It relies on a contextual reading of the decisions of the Supreme Court, on the history of the ADA, and on policy considerations that ought to determine liability and remedies for unintentional disability discrimination.
The paper can be downloaded from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2579263
Mitchell H. Rubinstein
Thursday, March 12, 2015
Graduate Assistants at NYU have been on strike for awhile. An article discussing the strike and NYU's recent threats from Inside Education can be found here.
As readers to this blog as well as my former students all know, in Brown University, the NLRB held that Graduate Assistants were not employees; rather they were primarily students and therefore not protected under the NLRA.
This issue is again pending before the NLRB and I would not be surprised if the Obama Board reverses the Bush Board's Brown decision. But, we will have to wait and see.
Mitchell H. Rubinstein
Wednesday, March 11, 2015
Here are upcoming symposia in the next few weeks that may be of interest to readers.
- March 13, DePaul Law Review, Chicago IL, "The UAS Dilemma: Unlimited Potential, Unresolved Concerns." More information.
- March 18, Creighton Law Review, Omaha NE, "Ethics and Electronics: Navigating Legal Ethics and New Technology." More information.
- March 20, Georgia Law Review, "Financial Regulation: Reflections and Projections." More information.
- March 20, LaVerne Law Review, Ontario CA, "Water: Crisis, Law & Culture." More information.
- March 20, Mississippi College Law Review, Jackson MS, "Ten Years Later: The Effects of Tort Reform in Mississippi." More information.
- March 27, Memphis Law Review, Memphis TN, "In re: Valor: Policy and Action in Veterans Legal Aid." More information.
- March 27, Ohio Northern Law Review, Ada OH, "New Solutions to Old Problems: A Practical Look at the Rebirth of Rehabilitation in the Criminal Justice System." More information.
- March 30, New York Law School Law Review, New York City, "Women in the Legal Profession: Leadership from Law School to Practice." More information.
- April 3, Idaho Law Review, Moscow ID, "Privacy in the Age of Pervasive Surveillance." More information.
- April 17, Northern Illinois Law Review, DeKalb IL, "Medical Marijuana Legalization, A Growing Trend: Social, Economic and Legal Implications." More information.
Tuesday, March 10, 2015
There is a very interesting op ed article in the March 9, 2015 Washington Post written by a law professor that those interested in legal education should read. Law schools are in a death spiral. Maybe now they’ll finally change.
In this article, Professor Brown discusses how law schools are declining, how they put too much emphasis on U.S. News and World Reports rankings and the terrible job market new lawyers face. Professor Brown also questions the value of faculty scholarship and student edited law reviews. As Professor Brown states:
Legal scholarship is in a terrible state, with counter-intuitive incentives for faculty. Status comes with publishing, but more publishing means less teaching and interacting with fewer students. In the legal academy, second- and third-year law students select which law professors’ articles to publish; while my second and third years are brilliant, they cannot select for quality the same way experts would. But even if you think the student-run system is fine, the value of legal scholarship, which is rarely read, has its skeptics, among them Chief Justice John Roberts. Scholars at the University of Florida argue in a recent study that very few articles are cited for their ideas. This broken system is also subsidized disproportionately by the tuition dollars of poorer law students.
Questioning the value of legal scholarship is heresy inside the legal academy – which is why I am grateful that I have tenure. Law schools are run by the faculty for the faculty. A former colleague once put it like this: “If we could run this law school without students, this place would be perfect.” He happened to be the dean. Such a system is unlikely to be changed from within.
But while faculty cannot be terminated, their summer research stipends can be. Other disciplines require faculty to obtain external funding to support their work. Law schools should take a similar approach. For all who argue that legal scholarship has merit, let the market decide. This won’t solve all of a law school’s financial woes, but it could be a place to start right now. My 20 years as a legal academic causes me to predict that no serious change will occur until a cataclysmic event occurs. My prediction: In three years, a top law school will close. Then watch how quickly things change.
Mitchell H. Rubinstein
Recovery for emotional harm in tort is a dicey proposition for any plaintiff. Court traditionally have cast a sharp eye to these claims and have erected procedural and substantive barriers against recovery. The rationale supporting these barriers is that emotional injury is "less susceptible to objective medical proof" than is physical injury. The Restatement (Third) of Torts adopts these distinctions between physical and emotional harm by requiring emotional harm be "serious" before any recovery for emotional injury may be had.
These barriers to recovery act as a check against claim's perceived subjective nature and resistance to objective proof. In a recent article, however, Professor Betsy Grey (Arizona) argues that advances in neuroscience have blurred the lines between emotional and physical harm and render emotional harm objectively measurable, at least in some circumstances. The article is "The Future of Emotional Harm," forthcoming in Fordham Law Review. This is the abstract:
Why should tort law treat claims for emotional harm as a second-class citizen? Judicial skepticism about these claims is long entrenched, justified by an amalgam of perceived problems ranging from proof difficulties for causation and the need to constrain fraudulent claims, to the ubiquity of the injury, and a concern about open-ended liability. To address this jumble of justifications, the law has developed a series of duty limitations to curb the claims and preclude them from reaching the jury for individualized analysis. The limited duty approach to emotional harm is maintained by the latest iteration of the Restatement (Third) of Torts. This Article argues that many of the justifications for curtailing this tort have been discredited by scientific developments. In particular, the rapid advances in neuroscience give greater insight into the changes that occur in the brain from emotional harm. Limited duty tests should no longer be used as proxies for validity or justified by the presumed untrustworthiness of the claim. Instead, validity evidence for emotional harm claims—like evidence of physical harm—should be entrusted to juries. This approach will reassert the jury’s role as the traditional factfinder, promote corrective justice and deterrence values, and lead to greater equity for negligent infliction of emotional distress (NIED) claimants. The traditional limitations on tort recovery, including the rules of evidence and causation, are more than adequate to avoid opening the floodgates to emotional distress claims.
This article article makes clear that expert testimony regarding neuroscience may soon be (or already is) coming to the civil courtrooms in the various states. Whether you agree, disagree or reserve judgement on her conclusions, Professor Grey's article represents a treasure trove of resources on these scientific advances and a good reference for lawyers, judges or students searching for a point of entry on the subject.
Monday, March 9, 2015
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. 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.
- Eric Jaffe, "The five key moments from Amtrak's Supreme Court hearing," The Atlantic CityLab (Dec. 12, 2014).
- Greg Stohr, "Supreme Court questions law that helped Amtrak run on time," BloombergPolitics (Dec. 8, 2014).
- Patti Goldman, "Supreme Court case concerning Amtrak contains hidden twist," EarthJustice Blog (Dec. 8, 2014)
- Stephen Wermiel, "SCOTUS for law students: Non-delegation doctrine returns after long hiatus," SCOTUSblog (Dec. 4, 2014).
Edit to add:
- Lyle Denniston, "Opinion analysis: Deciding — without deciding finally," SCOTUSblog (Mar. 9, 2015).
 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).
Thursday, March 5, 2015
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.
Wednesday, February 25, 2015
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
Monday, February 9, 2015
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
Friday, February 6, 2015
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 ; Matter of Andrews [A.C. Roman & Assoc.—Commissioner of Labor], 118 AD3d 1216, 1216-1217 ). 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 ). Accordingly, substantial evidence supports the Board's decision and we decline to disturb it.
Mitchell H. Rubinstein
Wednesday, February 4, 2015
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 ). "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 ). "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 , cert. den. 132 S. Ct. 255 ); 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 ; 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 ; 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 ; 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 ).
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 ).
Mitchell H. Rubinstein
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.
Monday, January 26, 2015
Friday, December 19, 2014
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.