Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Thursday, July 26, 2007

Mediation Confidentiality

2distcalif_2  Wimsatt v. Superior Court, 152 Cal. App. 4th 137 (Cal. Ct. App., 2007), is an important decision where a California state appellate court held that mediation confidentiality barred discovery of mediation briefs and e-mails. The plaintiff had sought this information in connection with a malpractice action against his former lawyer. The plaintiff had alleged that the attorney breached his fiduciary duty by submitting unauthorized material during mediation. Relying on California law, which provided that mediation was confidential, the court held that the plaintiff was not entitled to this disclosure. Interestingly, the court did expressly stated that it was not recognizing a mediation privilege, but instead was recognizing mediation confidentiality.

Surprising there has actually been a number of cases in California, which the court reviews, concerning mediator confidentiality. The decision is lengthly and well written. It also cites to a number of law review articles concerning this topic.

For mediation to have any chance of working, the parties must be able to speak frankly. Confidentiality encourages such frank communications. I believe the court got it right. Though this case had nothing to do with labor relations, the same principles should apply to a labor mediation.

Mitchell H. Rubinstein   

July 26, 2007 in Interesting Cases, Labor Law, Law Review Ideas, Recent Developments | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 24, 2007

Injured Ex-Cowboy, Chad Hennings, Not Entitled to Workers Compenation Benefits

In  Gulf Insurance Co. v. Hennings (Texas App. Dist. 2007), a Texas state appellate court, in a case of first impression, held that a former Dallas Cowboy ,who unquestionably was injured while playing, was not entitled to Workers Compensation benefits. This decision was based upon a provision in the Texas Workers Compensation statute which provides:

A professional athlete employed under a contract for hire or a collective bargaining agreement who is entitled to benefits for medical care and weekly benefits that are equal to or greater than the benefits provided under this subtitle may not receive benefits under this subtitle and the equivalent benefits under the contract or collective bargaining agreement. An athlete covered by such a contract or agreement who sustains an injury in the course and scope of the athlete's employment shall elect to receive either the benefits available under this subtitle or the benefits under the contract or agreement.

After Chad Hennings, who was a defensive lineman for the Dallas Cowboys, was terminated he accepted benefits under the collective bargaining agreement which amounted to approximately $87, 000 in severance pay and $225,000 under an injury protection clause.

Hennings argued unsuccessfully that because his medical benefits were limited by his contract to the term of [his] contract as the Club physician may deem necessary, the medical benefits provided by the contract were not equal to or greater than medical benefits as a matter of law. The majority, however, viewed this simply as an election of remedies type of case, reasoning:

  Hennings received $225,000 in "injury protection benefits" and medical expenses of $38,921.98 by virtue of his contract with the Dallas Cowboys and a collective bargaining agreement under the National Football League. Having received those benefits, he cannot now recover workers' compensation benefits as well.

This decision generated a dissent which would have allowed Hennings to collect because the contract was of limited duration.

Unfortunately, both the majority and dissenting opinion are very poorly written and reasoned. It is surprising that the court, which afterall was an appellate court, did not detail its reasoning, particularly since it acknowledged that a question of first impression was involved. 

In a July 23, 2007, Texas Lawyer article about this case (available here), Hennings vows to appeal. 

I do not know enough about Workers Compensation benefits to know whether this type of statute is unique to Texas law. What I do know is that every state has a Workers Compensation statute and the whole purpose of Workers Compensation is to eliminate a tort suit against employers in exchange for an administrative process which allocates benefits. If Hennings is not covered by Workers Compensation, he normally could sue his employer in tort.

However, my guess is that since there is some type of injury benefits clause under the NFL-Players collective bargaining agreement, he might not be able to sue since the terms and conditions of his employment are subject to the collective bargaining agreement. Because those benefits were not that high, Hennings was seeking Workers Compensation.   

Mitchell H. Rubinstein

July 24, 2007 in Recent Developments | Permalink | Comments (0) | TrackBack (0)

Thursday, July 19, 2007

FRCP Amendments-Stylistic or Substantive Change?

Dorf Columbia Law School Professor Michael Dorf, wrote an interesting July 18, 2007 article for Find Law entitled "Meet the New Federal Rules of Civil Procedure: Same as the Old Rules?" In this article he outlines the amendments to the FRCP which are scheduled to take effect this December. The FRCP has been extensively overhauled, but the intent was simply to make the rules simpler. With one minor exception, no substantive changes were intended. As Professor Dorf explains, however, these amended rules may wind up making certain changes:

Nonetheless, the increased clarity that the new Rules provide for civil procedure novices may come at the cost of decreased clarity for experienced practitioners. As I explain below, it may not be possible to re-write the law without changing its meaning, and if it is possible, then there is no clear point to the change. Whether the re-styled Rules lead to greater clarity or greater confusion will ultimately depend on how much common sense the courts use in interpreting them.

A copy of the proposed amended rules is available here. Prof. Dorf also follows up with his article on his blog which is available here.

Mitchell H. Rubinstein

July 19, 2007 in Legal Research, Recent Developments | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 18, 2007

House Passes Public Safety Employer-Employee Cooperation Act

On July 17, 2007, the House passed H.R. 980, the Public Safety Employer-Employee Cooperation Act of 2007 passed the House of Representatives with a bipartisan 314-97 vote. A You Tube video of several Members of Congress speaking in support of this Bill can be found here. Additional information can also be found from the House-Labor Committee web site which is available here.

I previously wrote about this Bill on June 30, 2007 after it was approved by a House Congressional Committee. That posting is available here. Basically, this Bill would extend collective bargaining rights to all public health and safety employees. As I previously wrote, some 20 states do not fully recognize the right of collective bargaining and two states prohibit safety employees from engaging in collective bargaining. I also previously indicated that I did not believe that President Bush would sign this Bill even if it also passes in the Senate.

Mitchell H. Rubinstein 

July 18, 2007 in Recent Developments | Permalink | Comments (1) | TrackBack (0)

Thursday, June 28, 2007

Parents Involved v. Seattle School Dist.; Supreme Court Majority (5 Justices) Adopt Colorblindness Constitutional Standard

Court_front_med_2 Parents Involved in Community Education v. Seattle School District No. 1, 551 U.S. ___(June 28, 2007), decided on the last day of the Supreme Court's October 2006 term is a 185 page decision which actually involves two cases. One case is from Seattle which never operated a segregated school system, but used a racial classification to decide "tiebreaker" applications to certain High Schools. The other case is from Kentucky which was under a consent decree until 2000 when the court found that the vestiges of prior segregation were eliminated. Like the Seattle school district, the Kentucky school district used a students race to rule on student transfer requests.

In Seattle, an organization (Parents Involved) and in Kentucky a parent of a student (Joshua) filed suit under the Equal Protection clause. In the Seattle case, the school district obtained summary judgment and that decision was affirmed in a lengthly decision by the 9th Circuit. In the Kentucky case, the school district prevailed below. Interestingly, the 6th Circuit decision in the Kentucky case was quite brief. The U.S. Supreme Court reversed both decisions.

Chief Justice Roberts, who wrote the judgment of the Court, stated that racial classifications are reviewed under strict scrutiny. Although remedying the effects of past intentional discrimination may be a compelling state interest, that standard did not apply here with respect to Seattle and the Kentucky case desegregation decree was dissolved. Very significantly, the Chief Justice Roberts distinguished Grutter v. Bollinger 539 U.S. 306 where student body diversity was held to be a compelling state interest in the context of higher education. This was because the diversity interest in Grutter did not focus on race alone, but also included other facts such as whether students overcame personal adversity or a family hardship.

Additionally, the means employed (racial classifications) only were of limited effect in achieving the schools objective. In Seattle, only a small number of students shifted. Similarly, in Jefferson County Kentucky, the use of racial classifications had only a minimal effect on school diversity. Classification and assigning school children on the basis of race "is an extreme approach" and requires more than an "amorphous end" to justify it. Both school districts also failed to demonstrate that they seriously considered methods other than explicit racial classifications to achieve their stated objective.

Additionally, the method used to determine racial diversity was illegitimate because there was no tie into the level of diversity necessary to achieve pedagogical benefits. Very significantly, Chief Justice Roberts' plurality rejected the idea that "racial balancing" was a compelling state interest and held that such "racial proportionality" was unconstitutional. As the Chief Justice stated:

This working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent. We have many times over reaffirmed that racial balance is not to be achieved for its own sake.

The Court's plurality decision is a giant step to requiring colorblindness with respect to all racial classifications. This is because to satisfy the strict scrutiny standard, the racial classification must be based upon past discrimination-a situation which we are moving further and further away from as society matures; or to meet diversity in higher education under a broad standard that does not just consider race. There must be some tie to educational value. Additionally, the plurality squarely rejects any notion of racial proportionality. "At the heart of the constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of racial, religious, sexual or national class."

Chief Justice Roberts even quotes with approval from the oral argument from Brown v. Board of Education for the proposition that:

We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.

At the end of Chief Justice Roberts 41 page plurality decision is also states: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

That statement together with others led Justice Breyer's 4 Justice dissent to state that the plurality was adopting a colorblindness standard. Additionally, Justice Thomas in his concurring opinion expressly adopted colorblindness and further stated that "[w]hat was wrong in 1954 cannot be right today." Moreover, he ended his opinion with Justice Harlan's famous Plessy v. Ferguson dissent. Most importantly, Justice Thomas expressly states Chief Justice Roberts' plurality decision adopted colorblindness.

Interestingly, I did not see in Chief Justice Roberts opinion an express discussion of colorblindness, though I agree that he is adopts this standard at least where there is no history of past discrimination. One must question why the Chief Justice did not expressly state that he was adopting a colorblind standard. I can only conclude that this is because the notion of colorblindness has deeply divided this country because with it most affirmative action programs will not survive constitutional scrutiny.

This is the first time that a majority of the Supreme Court has adopted colorblindness as constitutional doctrine. Therefore, this is a watershed constitutional law decision with respect to Equal Protection under the law.

Justice Kennedy's opinion was the swing vote. He did not adopt either Chief Justice Roberts' analysis nor Justice Breyer's analysis set forth in the 4 Justice dissent. Like all of the Justices, he would apply strict scrutiny. As part of this burden, the School Districts must establish how decisions based on race were made. The School Districts failed to meet this threshold mandate. Justice Kennedy pointed to factual discrepancies. For example, in the Kentucky case, there was no explanation as to why the guidelines at issue did not apply to kindergartens. There explanation as to why these racial classifications were necessary was also broad and they did not identify who made the decisions and how it was determined which of the two similarly situated children will be subjected to race based decision making. Seattle failed to explain why it simply characterized students as "white" and "non-white" when consideration is given to the fact that fewer than half of the students enrolled were white.

Justice Kennedy expressly rejected the notion of colorblindness and views that doctrine as merely an aspiration. "In the real world, it is regrettable to say, it cannot be a universal constitutional principle."

Justice Stevens wrote a relatively short dissent to express his views and he joined in the lengthly dissent by Justice Breyer. Stevens states that it is a cruel irony that the Chief Justice relies on Brown v. Board of Education. A rigid adherence to strict scrutiny, according to Stevens, "obscures Brown's clear message."

Justice Breyer wrote the dissent joined by three other Justices (Stevens, Souter and Ginsburg). He drew a distinction between school districts being required to adopt desegregation plans and where they voluntary chose to do so. The dissent also provides detailed factual and statistical analysis to support its conclusion that school districts need flexibility to prevent "the growing resegregation of public schools."

Breyer believes that the constitution permits the use of race-conscious criteria in limited ways to achieve "positive race-related goals, even when the Constitution does not compel it." He would accord school administrators deference in this type of decision making and pointed to numerous laws where Congress has approved of race-conscious statutes. Breyer does not state whether he believes that Chief Justice Roberts adopted a "colorblind" standard. Instead, he notes that he has found no cases that support Justice Thomas' colorblind approach.

Justice Breyer further states that context matters when reviewing raced-based governmental action. Remarkably, he states that "it would be surprising if the law required an identically strict legal test for evaluating the constitutionality of race-based criteria as to each of them," thus implying that a different test may apply when dealing with diversity. Though Breyer believes in a lesser form of strict scrutiny in such circumstances, he goes on and applies the existing strict scrutiny analysis to the facts and opines that the School Districts did not act in an unconstitutional manner.

Breyer does not see a difference in the term "diversity" from "racial balancing." Three interests justified the racial classification; the historical and remedial element; an educational element and a democratic element-that children need to "work and play together." The compelling interest here is the effort to eradicate the remnants, not of societal discrimination, but of primary and secondary school segregation. Breyer also cites to a number of decisions which have approved of race-conscious measures to combat segregated schools. According to Breyer' s dissent, diversity, is a compelling state interest in public schools even more so than in higher education.

This decision did not directly deal with affirmative action or employment discriminatation. However, it can be expected to directly effect affirmative action cases. Under this decision, it is doubtful that any voluntary affirmative action plan will survive where the employer has not been guilty of past discrimination. However, we will have to wait and see how the lower courts interpret this decision.         

This decision is one of the longest I have ever read and it reminds me of the Bakke decision of some 30 years ago. There is something in this decision for everyone to pull from. Frankly, the decision is simply too long. The decision is too long to read in one sitting and too long to correctly analyze in a lawyer's brief. That invites lawyers, professors and students to take short cuts. In the future, I can only hope that the Court becomes more aware of the fact that "less is often more." 

I have tried to keep this review relatively brief with that same hope in mind (less is more). I would be interested in hearing what others think of this decision. 

Mitchell H. Rubinstein    

   

 

June 28, 2007 in Discrimination Law, Education Law, Labor Law, Recent Developments, Schools | Permalink | Comments (2) | TrackBack (0)

DWI-Intoxication-refers to alcohol and not drugs

Nysctappeals In People v. Litto, ___N.Y.3d ___ (June 27,2007), New York's highest court issued a critically important criminal law decision concerning DWI. The Court of Appeals held that the phrase driving while intoxicated" in Vehicle and Traffic Law Sec. 1192(3) refers "to a disordered state of mind caused by alcohol, not by drugs."

The facts of this case were extreme. A 19 year old defendant sprayed "Dust Off" into his mouth while driving. This is an aerosol product commonly found in many cleaning products. Forty-five seconds he got into an accident killing one of his passengers and seriously injuring two others.

The Court undertook an extensive analysis of this statute and concluded that it was aimed at preventing the use of alcohol and that the legislature intended that alcohol to be treated differently than drugs. The chemical that was involved in the "Dust Off" was not on the list of controlled substances so defendant was not charged with a violation of another section of Vehicle and Traffic Law Sec. 1192 which prohibits driving while under the influence of alcohol or drugs.   

On the one hand, the statute uses the term "intoxication" and one could argue that term should encompass drugs. On the other hand, the legislative history seems to be clearly directed at drinking while driving. In the end, the result depends upon what the role of courts are? Do they interpret statutes in light of everyday life (so called activists judges) or do they strictly interpret the statute as originally written. The judges on the Court of Appeals took the later approach.

I found this case to involve a very complicated legal issue and I am a bit surprised that it did not generate at least one dissenting opinion. Personally, I believe that the constitution is a living document and it, as well as statutes that were passed pursuant to a legislature's constitutional authority, needs to be interpreted as such.

This defendant is not out of trouble. He remains indicted on far more serious counts of vehicular manslaughter as well as violations of several other penal law provisions. Perhaps, this had something to do with the decision of the court.

Mitchell H. Rubinstein   

June 28, 2007 in Recent Developments | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 6, 2007

Mandatory Sick Leave Benefits

A NBC Affiliate in Dallas is repoting a story entitled "Sick-Leave Law In Effect In San Francisco" that San Francisco passed a local law which requires business to provide PAID sick leave time off for most workers. This article reports that this local law requires that employees earn one hour of sick leave for every 30 hours worked regardless of their immigration status or the number of hours they put in each week.

This is just another example of the emerging importance of state law in labor and employment law matters.

Mitchell H. Rubinstein

June 6, 2007 in Recent Developments | Permalink | Comments (0) | TrackBack (0)

Sunday, June 3, 2007

Genetic Engineering And Discrimination-Proposed Federal Legislation

Sonia Miller, in a May 29, 2007 article in the New York Law Journal entitled "Genetic Engineering: In Pursuit of Perfection" discusses genetic engineering and federal legislation that has been proposed. Ms. Miller writes:

Genetic engineering capabilities, in fact, are reconfiguring the science of human existence. The benefits of human re-engineering and corrective genetic therapies are expected to obliterate disease and disabling traits, enhance life and improve society.

However, as a double-edged sword, this same innovation has the possibility of creating new genetics-based economic communities, social prerequisites and unique legal challenges.

The legislation is  known as the Genetic Information Nondiscrimination Act of 2007 (H.R.493, S.358).  It would would  prohibit discrimination on the basis of genetic information with respect to health insurance and employment, and extend medical privacy and confidentiality requirements. The article outlines existing case law involving claims of employment discrimination, claims under HIPPA and protections under state law.

Sonia Miller is the Principal of the S.E. Miller Law Firm and president of Converging Technologies Bar Association. Frankly, I never heard of this bar association. It appears to be a private bar organization that is not directly affiliated with a traditional bar association. However, several important and distinguished individuals have affiliated with this organization.

The law certainly needs to catch up with modern science in this area. Additionally, this is an area of law that is developing and needs to be watched carefully.

Mitchell H. Rubinstein


June 3, 2007 in Discrimination Law, Legal News, Recent Developments | Permalink | Comments (0) | TrackBack (0)

26 Supreme Court Cases Expected To Be Decided This Month

The LA Times is has an excellent Article summarizing the 26 U.S. Supreme Court cases that are expected to be decided this month.David G. Savage, Times Staff Writer in his June 2, 2007, article predicts a number of 5-4 decisions. He summarizes some of the important pending cases as follows:

  High schools and free speech: Do students have a right to hold up signs at school-sponsored events that carry messages that offend the principal? A case from Alaska involves a student and his banner promoting "Bong Hits 4 Jesus," but a ruling could broadly rewrite the free-speech rules in schools across the country. (Morse vs. Frederick)

•  Car searches: Is a passenger legally "seized" when police pull over the driver? No, said the California Supreme Court. The ruling in favor of the passenger from Northern California could be important for those charged with a crime who want to challenge the stop as illegal. (Brendlin vs. California)

•  School recruiting: Do coaches have a free-speech right to contact student athletes from other schools, or do state athletic associations have the authority to penalize high school teams for recruiting? (Tennessee Secondary School Athletic Assn. vs. Brentwood Academy)

•  Union fees: Does a teachers union have a right to use dues money for political purposes unless a teacher objects? (Washington vs. Washington Education Assn.)

•  Home-care workers: Are the tens of thousands of employees who provide companionship services in the homes of the elderly and infirm entitled to minimum wage and overtime pay? (Long Island Care at Home vs. Coke)

•  Credit reports: When must insurers notify consumers they were charged higher rates because of a poor credit rating? (Safeco vs. Burr)

•  Investor suits: How much evidence of fraud is needed before investors can sue a company for their stock losses? Wall Street and the Bush administration want to make it harder for these suits to go forward. (Tellabs vs. Makor)

•  Initial public offerings: Can 10 of the largest investment banks be sued under antitrust laws on allegations of rigging the price of stock offerings during the boom of the late 1990s? (Credit Suisse vs. Billing)

Interestingly, the Article leave out one of the most important cases-that involving the Seattle School's practice of assigning students on the basis of race.

As one can see, labor and employment issues continue to present novel and interesting issues that take up alot of the Court's docket.

Mitchell H. Rubinstein

June 3, 2007 in Recent Developments | Permalink | Comments (0) | TrackBack (0)

Monday, May 28, 2007

Cause of Action For Conversion of Kidney Organ?

2nd20circ100 We all know about the unfortunate shortage of donated organs in this country. What if a kidney organ intended for donation by the family into a family friend is implanted in someone else? While that's a nice tort law school class hypo and  possible law review article, this has actually happened. Colavito v. New York Organ Doner Network, __F. 3d __ (2d Cir. May 21, 2007).

As summarized in the opinion, this case is actually a Second Circuit decision issued after the New York Court of Appeals issued an opinion which was certified to it earlier. The New York Court of Appeals held that a cause of action for conversion was possible, at least in theory, but in this case the organs were not compatible.

This case raises a host of public policy questions which were not fully answered  (such as whether public policy allows donors to pick recipients, whether public policy permits holding doctors and donor networks liable for mistakes and what type of standard (malpractice, negligence etc. is applied to these types of questions)) by the Second Circuit because the donated kidneys were not compatible.

Remarkably, I have not seen this case addressed in the media. I could not think of a more important issue that deserves public scrutiny.

Mitchell H. Rubinstein   

May 28, 2007 in Law Review Ideas, Oddly Enough, Legal, Recent Developments | Permalink | Comments (0) | TrackBack (0)

Sunday, May 27, 2007

U.S. Supreme Court proposes revisions to its rules

The U.S. Supreme Court issued a May 14, 2007 Press Release where it outlines proposed revisions to its rules. An excerpt from the Court's press release states:

The Supreme Court of the United States today announced it will entertain public comment on proposed revisions to its rules of procedure. The modifications under consideration include several minor alterations. The more substantial revisions include a change from page limitations to a word count similar to the 1998 Amendment to the Federal Rules of Appellate Procedure. See Rule 33. Changes to Rule 25 revise the briefing schedule and require an electronic version of merits briefs be transmitted to the Clerk. Rule 37 revisions require an amicus curiae to notify counsel of record of intent to file an amicus curiae brief at the petition stage, and to electronically transmit every amicus curiae brief in a case scheduled for oral argument. Also, amicus curiae supporting a petitioner at the petition stage will be required to file within 30 days after the case is placed on the docket, and no extensions will be allowed.

A copy of the proposed rules can be found here. Comments must be received by the Supreme Court no later than June 4, 2007.

Mitchell H. Rubinstein

May 27, 2007 in Recent Developments | Permalink | Comments (0) | TrackBack (0)