Adjunct Law Prof Blog

Breaking News! 7th Upholds The Constitutionality of Wisconsin Budget Repair Bill

Wisconsin Educational Council v. Walker, ____F.3d___(7th Cir. Jan. 18, 2013), is an important case that you are going to hear more about. In a 74 page decision, the 7th Circuit upholds the constitutionality of Wisconsin Act 10, the so-called Budget Repair Bill, Download WEAC v Walker -- 7th Circuit Decision 

The major challenge was on equal protection grounds. Specifically, the statute creates two classifications of public employees; public safety employees and general employees whom the restrictive labor relations provisions apply to. The prohibition of payroll deductions was also challenged on First Amendment grounds. The court rejected each of these arguments. 

The court applied the rational basis standard of review and concluded that the statute did not create view point discrimination. The court reasoned that differring treatment could be justified on the greater consequences of public safety worker strikes. 

The court did acknowledge the unions' agrument that it was only those same public safety unions who supported Governor Walker for election. So much for view point discrimination. 

Mitchell H. Rubinstein

New Law School Proposed for South Texas

At least two Texas legislators, Rep. Eddie Lucio, III of Harlingen and Rep. Armando Martinez of Weslaco, have filed bills to establish a public law school in the Rio Grande Valley.  The two bills are similar to one another - the primary difference is that Lucio's bill would place the law school in the University of Texas System, while Martinez's bill would authorize the school to be created and operated by any willing and existing university system.

A law school in the fast-growing Rio Grande Valley has long been a goal for South Texas's legislative delegation.  While the need for a new law school in this national market is doubtful, the Rio Grande Valley is greatly underserved.  The nearest public law school to the Valley is the University of Texas at Austin some 300 miles away.  The Rio Grande Valley appears by far to be the largest region in the nation, measured by population, located so far from a public law school.  The two MSA's that make up the Valley have almost 1.2 million in population according to the last Census.

Texas created a public law school in the Dallas during the 2009 session - the University of North Texas Dallas (UNT-Dallas) College of Law is scheduled to open in the Fall of 2014.  With law schools facing declining enrollment in this tough job market, getting yet another law school opened in Texas looks to be an uphill battle this session.

The Texas Legislature meets for 140 days during odd-numbered years, called special sessions excluded.

Craig Estlinbaum

Who Is On Cain's Legal Team??

Cain appears to have a small and relatively inexperienced legal team. The Wall Street Journal Law Blog details his legal team here. 

Mitchell H. Rubinstein

Massachusetts school district to add Muslim holiday to calendar for the 2011-12 school year

According to the Boston Globe, Cambridge public schools will either close for Eid al-Fitr or Eid al-Adha, also known as the Festival of Sacrifice, depending on which holiday falls within the school year. If both fall within the school calendar, the district will close for only one of the days.  Cambridge would be the first school district in Massachusetts to close schools for a Muslim holiday. Cambridge School Committee member Marc McGovern, who pushed for the Muslim holiday in city schools, said he thinks people need to take a step back from what he called hysteria and the stereotypes of all Muslims as terrorists. 

Source: Boston Globe, 10/10/10, By Brock Parker

President Obama's Remarks at August 4, 2010 AFL-CIO Executive Board Meeting

A copy of the President's remarks to the AFL-CIO Executive Board on August 4, 2010 is available here. What I found most interesting was that Obama states that he still plans to pass the Employee Free Choice Act.

Mitchell H. Rubinstein

Copy of Court Decision Enjoining Enforcement of Parts of Arizona's Immigration Law

As most of you are know doubt aware, a portion of Arizona's Immigration Law was enjoined on preemption grounds. I thought readers would be interested in having a copy of that decision, U.S. v. Arizona, ___F.Supp.2d____(D. Az. July 28, 2010).

Mitchell H. Rubinstein

Do You Know Why BP Is Willing To Pay All Legitimate Claims? I Do.

BP has established a claims process and has repeatedly indicated in the news media that it will pay "all legitimate claims". Putting aside for the moment what a legitimate claim is, why would a company voluntarily offer to pay millions in damages? In fact, the damages may be so high that the stability of the company may be threatened. I believe that there are one or two reasons for this. First, the government may have indicated that it will assume payments after the damages reach a certain level. Second, and more likely, BP probably has insurance and it is the insurance carrier who will foot the bill. However, this bill may be even too large for the insurance carrier.

I have no inside information about any of this. However, I am surprised that I have not seen any discussion of this in the media. Perhaps this posting will help generate that discussion.

Mitchell H. Rubinstein

Senate To Vote On Smith Nomination

The Senate appears ready to vote on Patty Smith's nomination to be solicitor of labor. She is currently the NYS Commissioner of Labor. Her nomination has been held up for months. A New York Times article about her nomination is available here.

Mitchell H. Rubinstein

Unions Win Concessions On Health Care Reform

There is an interesting article in the Oct. 26, 2009 edition of The Hill entitled "Unions Win Concessions But Fight On" which is about the health care debate.  What are the "concessions" that organized labor wants? The article states as follows:

Reid has not given labor unions everything. But he has done enough to keep them from turning completely against the bill: including a version of the government-run health insurance program; raising the taxable level on high-cost insurance plans; and increasing the penalty for those companies that fail to provide health insurance to employees.

Keeping labor unions, a reliable Democratic-base group, on his side is an important accomplishment for Reid as he heads into a multi-week floor debate on the party’s biggest legislative priority. If unions were provoked to oppose the bill’s central provisions, it could tear apart the Senate Democratic Conference, pitting liberals against centrists.

Mitchell H. Rubinstein

Timeline Of Obama's Life

The New York Times ran an interesting Oct. 9, 2009 article about President Obama which is basically a timeline about his amazing success. That article is available here. Interestingly, it does not end with Obama's Nobel Prize. For those interested in Obama, it's worth a read.

Mitchell H. Rubinstein

Immigration Put On The Back Burner

The New York Times reported on August 10, 2009 that Immigration Reform must await 2010. That article is available here.
Why? Because of other concerns, including- surprise surprise healthcare reform. Interestingly, the President did not outline what his specific reforms are going to be.

Mitchell H. Rubinstein

Pope's June 29, 2009 Encyclical Supports Labor Unions

On June 29, 2009, the Pope issued an Encyclical where he strongly supports unions and the need for workers to receive decent wages. Download Encyclical - Caritas in Veritate

In the below passage, the Pope also stresses the importance of unions reaching out to other workers who may be less fortunate:

While reflecting on the theme of work, it is appropriate to recall how important it is that labour unions — which have always been encouraged and supported by the Church — should be open to the new perspectives that are emerging in the world of work. Looking to wider concerns than the specific category of labour for which they were formed, union organizations are called to address some of the new questions arising in our society: I am thinking, for example, of the complex of issues that social scientists describe in terms of a conflict between worker and consumer. Without necessarily endorsing the thesis that the central focus on the worker has given way to a central focus on the consumer, this would still appear to constitute new ground for unions to explore creatively. The global context in which work takes place also demands that national labour unions, which tend to limit themselves to defending the interests of their registered members, should turn their attention to those outside their membership, and in particular to workers in developing countries where social rights are often violated. The protection of these workers, partly achieved through appropriate initiatives aimed at their countries of origin, will enable trade unions to demonstrate the authentic ethical and cultural motivations that made it possible for them, in a different social and labour context, to play a decisive role in development. The Church's traditional teaching makes a valid distinction between the respective roles and functions of trade unions and politics. This distinction allows unions to identify civil society as the proper setting for their necessary activity of defending and promoting labour, especially on behalf of exploited and unrepresented workers, whose woeful condition is often ignored by the distracted eye of society.

There is a whole body of legal literature concerning Catholic labor theory. My colleague at St. John's Law School, David Gregory, has written several important articles in this area.

Mitchell H. Rubinstein 

Primer On Health Care Reform

On August 10, 2009, the New York Times ran an excellent article on health care reform where it summarized the key issues being debated across this country. That article is available here and is a must read. Among the issues it discussed are as follows:
1. The article quotes the President as saying that if you like your health care you can keep it. However, the Bill does not require employers to maintain current levels of health care.
2. With respect to a public plan, the article notes that the government already spends 2.5 trillion dollars on Medicare and Medicaid.
3. The article notes the disagreement over the cost.
4. With respect to euthanasia, the AARP states that is not part of the Bill. However, the legislation does instruct Medicare officials to propose ways to measure end of life care.
5. On coverage for abortion, it is a bit unclear where this stands.

Mitchell H. Rubinstein

What the Franken Victory Means

The AP ran an interesting July 2, 2009 story about the significance of Franken being seated as a U.S. Senator, available here.As they point out, 2 Democrats (Byrd and Kennedy) have been out for months. It will also give the Democrats 60 votes-which will give them carte blanche to pass legislation.

Mitchell H. Rubinstein

EFCA Card Check Compromise In The Works

Washington Roll Call reported on June 19, 2009 that an EFCA compromise is in the works and that there is already agreement with respect to the interest arbitration provisions in EFCA. Unfortunately, the article does not state what those compromises are. However, the article does expect that the revised Bill will come to a vote this summer.
My own view is that we are going to have labor law reform. I would be surprised if the card check provisions remain in the final Bill. I expect that they will be replaced with speedy election provisions. I believe the interest arbitration provisions will remain in the Bill-though perhaps they may be spread out over a longer period of time. Finally, I believe that the penalty portion of the Bill will pass unaltered.
This will be an interesting summer for those of us interested in labor law.

Mitchell H. Rubinstein

Executive Pay And Say To Play Rules

Overseer To Set Executive Pay At Rescued Companies is an important June 10, 2009 article from the NY Times. It reports that the Obama Administration has appointed a compensation czar to oversee executive compensation at firms which received stimulus funds. That is not surprising and has been in the works for a while. Much more importantly, the article also reports that Secretary Geithner wants publicly traded corporations to adopt “say on pay” legislation giving shareholders the ability to hold non-binding votes on compensation levels. As a Senator, Obama reportedly supported such legislation. 

Specifically, the Department of the Treasury is seeking legislation to authorize the Securities and Exchange Commission to require annual non-binding shareholder votes on compensation at all publicly traded companies.  I have included copies of Secretary Geithner's statement, the U.S. Department of Treasury's "Say on Pay" Fact Sheet and the Providing Compensation Committees New Independence fact sheet.

The Administration believes that such legislation is necessary to achieve the following five goals:

 First, compensation plans should properly measure and reward performance.Second, compensation should be structured to account for the time horizon of risks. Third, compensation practices should be aligned with sound risk management.Fourth, golden parachutes and supplemental retirement packages should be reexamined to align the interests of executives and shareholders.Fifth, transparency and accountability in the process of setting compensation should be promoted.

The legislation will build on Sarbanes-Oxley to regulate corporate behavior. This proposal does not just those corporations that participate in the so-called "TARP" program and were required to allow "say on pay" votes by shareholders this year.

The information provided is a bit vague, but it is apparent that this will become an important part of corporate and employment law.

Mitchell H. Rubinstein

Prof. Harris Confirmed As Deputy Secy of Labor

On May 21, 2009, the U.S. Senate confirmed New York Law School Professor Seth Harris to be Deputy Secretary of Labor which is the number 2 position in the department. Seth is a old college buddy of mine as well as a colleague at New York Law School. Congratulations Mr. Secretary. I could not think of a better choice. A summary of Seth's bio is available here. 

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

Breaking News Copies of Torture Memo's Available; ASIL Paper of Torture Memos

The American Society of International Law recently published a paper, as part of their Insight Series entitled "The Torture Memos and Accountability". It is written by Allen Weiner-a Stanford Law School Prof. It includes links to the memos in question, available here

The American Society of International Law or ASIL frequently publishes scholarly papers on timely topics. Researchers will find this article and its links of great interest and assistance.The author concludes that holding the attorneys criminally responsible will be difficult, but that they may be also be subject to prosecution in other countries. As the article states:

Nevertheless, attempting to hold OLC lawyers criminally responsible for the advice they gave in the memos could prove difficult. To convict a lawyer for conspiracy or aiding and abetting torture, it is likely that the prosecution would have to prove that the purpose of the lawyer’s advice was to facilitate conduct that the lawyer knew to be criminal. Where a lawyer gives advice in good faith, or that he believes is well-founded, “he cannot be held liable for an error in judgment.”[25] Criminal prosecutions of lawyers who play a role in advising clients who pursue criminal activity are accordingly quite rare. The government would have to prove, in any case against lawyers involved in formulating the OLC guidance, that they gave advice that they knew to be erroneous. In the absence of evidence demonstrating that the OLC lawyers who advised the CIA that the interrogation techniques were legal did not in fact believe that there was a plausible basis for this argument, it would be difficult to establish their criminal liability. Evidence of such belief – emails, meeting minutes, other officials’ testimony – may be quite difficult to adduce.

The difficulty in criminally prosecuting those connected to the CIA interrogations does not, of course, preclude other forms of accountability. . . .
 Finally, apart from the question of state responsibility on the part of the United States, it is possible that individual interrogators or lawyers may be subject to criminal prosecution outside the United States. Torture is an offense subject to universal jurisdiction, and under the Torture Convention, any state party may potentially prosecute acts of torture no matter where they have occurred. A decision not to prosecute in the United States – whether based on the availability of strong defenses under domestic law or on or policy considerations – does not preclude other states from exercising criminal jurisdiction. We have already seen the initiation of a criminal investigation in Spain of six U.S. Government officials – including two OLC lawyers – for torture that allegedly took place at the U.S. military facility at Guantanamo Bay, Cuba.[36] Individuals involved in either the design or execution of the enhanced interrogation program are accordingly vulnerable to arrest and prosecution if they travel outside the United States.

Mitchell H. Rubinstein

Possible Changes To Employee Free Choice Act

We have been extensively covering the Employee Free Choice Act. Readers will recall there are three basic parts to it:
1. Allowing for card check elections where a majority of workers sign cards;
2. Providing for interest arbitration of first contract disputes if the parties cannot agree;
3. Increasing fines when unfair labor practices are found.

The first two provisions are controversial and the first provision is real controversial. While the Employee Free Choice Act has the majority support of the both Houses and the President, it remains unclear whether it can survive a filibuster.   A May 6, 2009 New York Times article by Steven Greenhouse entitled Lines Shift A Bit On Senate Labor Bill indicates that compromise may be in the air.

Unfortunately, Mr. Greenhouse does not provide much detail about what those compromises may be. He states:

In a procedure similar to the early voting that precedes elections in many states, workers could sign cards and mail them to the National Labor Relations Board. If a majority mailed cards, the board would order the employer to recognize the union, as it now does when a majority of workers vote for a union through secret ballots.

I have no idea what this means and it sounds a lot like the current Bill. Stay tuned.

Mitchell H. Rubinstein

Senate Confirmation Hearings On Harris And Smith To Take Place On May 7th

Workplace Prof Blog has a interesting May 6, 2009 posting which announces that Prof. Seth Harris (Nominee Deputy Secy of Labor) and Patty Smith (Solicitor of Labor) confirmation hearings will be held on May 7th. As Professor Hirsch states:

Tomorrow (Thursday, May 7), the Senate Health, Education, Labor, and Pensions Committee will hold a hearing on President Obama's nominations of Seth Harris to serve as Deputy Secretary of Labor and Patricia Smith to serve as Solicitor of Labor.   The hearing will be at 10:00 am in Room 430 of the Dirksen Senate Office Building, and the public is welcome to attend.  You can also watch a video stream of the proceedings on the Senate HELP Committee's web site.

Best of Luck.

Mitchell H. Rubinstein