Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, October 12, 2016

Supremes Grant Cert In Case That Has Implications For Summary Judgement Motions In Discrim Cases

The Supremes recently granted cert in  Zigler v. Turkmen, which involves pleading discriminatory intent. Though not an employment law case, intent and pleading issues are an important issue in employment discrimination cases-particularly in the summary judgement stage after Twombly and Iqbal. From Scotusblog, via Workplace Prof Blog, the issue in the case includes:

"whether the Court of Appeals erred in finding that Respondents' Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal, and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar's liability, but fall short of stating plausible claims."

Mitchell H. Rubinstein

Hat Tip:   Workplace Prof Blog

October 12, 2016 in Discrimination Law, Employment Discrimination, Employment Law, Supreme Court | Permalink | Comments (1)

Tuesday, March 29, 2016

Breaking News. Supreme Court Affirms Friedrichs By An Equally Divided Court

Earlier today, the Supreme Court issued its decision in Friedrichs v. California Download Friedrichs Teachers Assoc., 578 U.S. ___(2016), where the Court issued a one-line opinion stating that "The Judgement is affirmed by an equally divided Court."

This means that the Abood decision stands and the agency fee statutes which have been enacted in several states remain constitutional. 

However, the battle is not over. You can expect another case to be filed after the election. No matter where you stand on this issue, this makes the upcoming Presidential election even more important. 

How long might it take for this issue to reach the Supreme Court again? No one knows for sure, but my guess is about 3 years and it will take about 4 years for a decision to be issued. But, then again the Court can deny cert. 

In Friedrichs, the complaint was filed on April 30,2013, the District Court granted the PLAINTIFFS MOTION for judgement on the pleadings on behalf of the DEFENDANT on Dec. 5, 2013, the 9th Circuit summarily affirmed on Nov. 18, 2014, the Supremes granted cert. on June 30, 2015 and the decision was issued on March 29, 2016. 

So that adds up to almost exactly 3 years. But, a Supreme Court Justice is likely not to be appointed until after the election say April 2017 and that is how I came up with this time frame. Of course, if Judge Garland is actually appointed to the Court this term, the time frame may be closer to 3 years than 4 years. 

Mitchell H. Rubinstein

March 29, 2016 in Public Sector Labor Law, Supreme Court | Permalink | Comments (0)

Monday, April 27, 2015

Roberts Court at 10: The Fourth Amendment

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

Craig Estlinbaum

April 27, 2015 in Constitutional Law, Criminal Law, Supreme Court | Permalink | Comments (3)

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)

Tuesday, November 26, 2013

Harvard Law Review's Supreme Court Issue

Harvard Law Review has released its Annual Supreme Court Review.  This is the table of contents:

  • Forward, Equality Divided, by Reva B Siegel (Yale);
  • Comment, Beyond the Discrimination Model on Voting, by Samuel Issacharoff (NYU);
  • Comment, Windsor and Brown: Marriage Equality and Racial Equality, by Michael J. Klarman (Harvard);
  • Comment, License, Registration, Cheek Swab: DNA Testing and the Divided Court, by Erin Murphy (NYU).

The issue also includes the section on the Term's leading cases plus court statistics.  This is a link to the issue. There are also links at the HLR website to online responses to the Isaacharoff, Klarman and Murphy comments as well.

Craig Estlinbaum

November 26, 2013 in Law Review Articles, Supreme Court | Permalink | Comments (0)

Thursday, October 17, 2013

Haw: Delay and Scientific Uncertainty

Rebecca Haw (Vanderbilt) has posted, "Delay and its Benefits for Judicial Rulemaking Under Scientific Uncertainty" on SSRN.   This is the abstract:

The Supreme Court’s increasing use of science and social science in its decision-making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be be responsive, but not reactive, to new scientific findings and theories, a difficult balance for lay justices to strike. This Article argues that the Court uses delay — defined as refusing to make or change a rule in light of new scientific arguments at time one, and then making or changing the rule because of the same arguments at time two — as a tool to improve decision-making amidst scientific uncertainty.

Using the Court’s antitrust jurisprudence as an example, this Article shows that delay can have a salutary effect on rule-making because it allows the Court to use academic consensus (that either develops or matures between times one and two) as a signal of scientific reliability. As a conservatizing device, delay operates in the common law tradition, but it also avoids some of the failures associated with traditional common law features like stare decisis and incrementalism. The Article concludes by contrasting Supreme Court decision-making with an area of law where delay is impractical or undesirable. In toxic tort litigation, where the goals of deterrence and compensation preclude the use of delay in the face of new scientific arguments, the law pays the price in uncertainty and error.

This article is forthcoming in the Boston College Law Review.

Craig Estlinbaum

October 17, 2013 in Law Review Articles, Supreme Court | Permalink | Comments (0)

Tuesday, October 8, 2013

Sisk: Strict Construction and Soverign Immunity

Gregory C. Sisk (St. Thomas MN) has posted, "Twilight for the Strict Construction of Waivers of Federal Sovereign Immunity," on SSRN.  This paper surveys recent Supreme Court cases which mark a shift in interpretive approach to statutory language waiving soverign immunity.  On first review, this strikes me to be an important paper that thoroughly analysis recent developments in the Court's soverign immunity construction and jurisprudence.  Here is the abstract:

The Government of the United States has long benefited from two canons of statutory construction that tip the scales of justice heavily in its direction in civil litigation by those seeking redress of harm by that government: First, the federal government’s consent to suit must be expressed through unequivocal statutory text. Second, even when a statute explicitly waives federal sovereign immunity for a subject matter, the traditional rule has been that the terms of that statute “must be construed strictly in favor of the sovereign.” The restrictive effect of these rules has made a distinct difference in cases that truly matter to the lives and well-being of ordinary people.

Since the dawn of the new century, however, the Supreme Court’s increasingly common encounters with waivers of federal sovereign immunity are also becoming more conventional in interpretive attitude. During the first eleven years of the twenty-first century, the Court turned a deaf ear to the government’s plea for special solicitude in the substantial majority of instances and frequently declared that the canon of strict construction was unhelpful or ill-suited. In four sovereign immunity cases decided in the 2012 Term, the Court continued to evidence a commitment to text, context, and legislative history, unblemished by any presumption of narrow construction. Notably during oral arguments in this most recent term, multiple members of the Court openly challenged the government’s reach for broader immunity.

In these recent decisions, the Court increasingly accepts a dichotomy between the threshold question of whether sovereign immunity has been waived (requiring a “clear statement” by Congress) and the inquiry into how the statutory waiver should be interpreted in application (with the canon of strict construction fading away as a viable tool for statutory interpretation).

This paper is shown to be accepted for publication by North Carolina Law Review.

Craig Estlinbaum

October 8, 2013 in Law Review Articles, Legislation, Supreme Court | Permalink | Comments (0)

Monday, September 23, 2013

Supreme Court Links To Nowhere

Adam Liptak has an interesting essay in today's New York Times about ill-fated hyperlinks in online United States Supreme Court opinions and discusses possible solutions.

Craig Estlinbaum

September 23, 2013 in Legal News, Legal Research, Supreme Court | Permalink | Comments (0)

Tuesday, May 21, 2013

Supreme Court Takes Government Prayer Case

Thirty years ago in Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court held in a divided opinion that opening legislative sessions with prayer did not violate the Establishment Clause.  But can the government open such legislative sessions with prayers exclusively with one faith?  The Supreme Court will decide this question next term in Town of Greece v. Galloway.  Last May, the Second Circuit held in the case that the town's practice to begin council sessions with prayer exclusively of the Christian faith violated the Establishment Clause.  Lyle Denniston at SCOTUSblog described the key holding in the circuit court's decision to be:

The Circuit Court stressed that it was not ruling that a local government could never open its meetings with prayers or a religious invocation, nor was it adopting a specific test that would allow prayer in theory but make it impossible in reality.

What it did rule, the Circuit Court said, was that “a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion, violates the clear command of the [First Amendment's] Establishment Clause.”

It emphasized that, in the situation in Greece, New York, the overall impression of the practice was that it was dominated by Christian clergy and specific expressions of Christian beliefs, and that the town officials took no steps to try to dispel that impression.

Since the Court announced the decision to grant certiorari earlier today, the case has generated substantial buzz in the press, print and online, and promises to a significant and closely watched decision in the October 2013 term.

Craig Estlinbaum

May 21, 2013 in Constitutional Law, First Amendment, Interesting Cases, Religion, Supreme Court | Permalink | Comments (0)

Monday, February 11, 2013

Justice Thomas Speaks


Supreme Court watchers know that Justice Thomas does not speak in Court. If he wants to say something, he asks the other Justices to ask a question. However, recently he said something in open Court. What did he say you might ask? He attempted to crack a joke! A New York Times article discussing Justice Thomas is available here

Mitchell H. Rubinstein

February 11, 2013 in Supreme Court | Permalink | Comments (0)

Thursday, October 25, 2012

Supreme Court To Address Affirmative Action In College Admissions

View this photo
Colleges Value Diversity, but will the Court is an interesting Oct. 6, 2012 article from the New York Times. It previews the Fischer case pending before the Supreme Court. This will be the Court's 4th affirmative action decision in the context of higher education. The plaintiff, a white applicant, claims that race should not have been used as a factor in admissions. As the article states:

To further its aim of having a student body that is “meritorious and diverse in a variety of educationally relevant ways,” the university admits the rest of its students through individual assessments, with race being one in a long list of factors, including grades and activities. Many worry that the court will use this case, Fisher v. University of Texas, to overturn a 2003 decision, Grutter v. Bollinger, which allowed colleges and universities to advance “racial diversity” as a valid goal for their institutions and for society, as long as they did not make race the determining factor in admissions. Justice Sandra Day O’Connor wrote in Grutter, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”

In the years since that ruling, there has been widespread, ambitious and valuable experimentation to ensure that all racial, ethnic and socioeconomic groups have equal access to higher education and that colleges and universities serve broader public goals. Many of these experiments could be threatened by a ruling in Ms. Fisher’s case that prohibited using race in any manner.

This program seems to be designed as suggested by Justice Powell's decision in Bakee which was not supported by a majority of the Court. 

Mitchell H. Rubinstein


October 25, 2012 in Supreme Court | Permalink | Comments (0)

Wednesday, July 18, 2012

Supremes Grant Cert In Case Involving Faragher Affirmative Defense

Ball v. Vance is the name of the case. 

Issue: Whether the “supervisor” liability rule established by Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

This is an important case to watch. For any of my students still looking for a paper topic, this is a great one.

Mitchell H. Rubinstein

July 18, 2012 in Employment Discrimination, Supreme Court | Permalink | Comments (0)

Thursday, June 28, 2012

Breaking News!! Supreme Uphold Most of Obamacare!

The decision, which is 193 pages long is here. I have not had time to read it and I cannot imagine that the newspapers that are commenting on it had time to read it either. The individual mandate was upheld, but not on the basis of the Commerce Clause. Rather, it was based upon the power of Congress to tax. The Court appears to have struck the provision which expanded Medicaid. 

Mitchell H. Rubinstein 

June 28, 2012 in Supreme Court | Permalink | Comments (0)

Tuesday, February 21, 2012

Supremes Issue Important Public Policy Decision

Marmet Health Care v. Brown, 565 U.S. ___ (Feb. 21, 2012), is an interesting case. In a relatively short Per Curiam opinion, the Court reverses the decision of the Supreme Court of Appeals of West Virginia which held that that under the FAA all predispute arbitration agreements that apply to claims alleging personal injury or wrong death against nursing homes were unenforcable. 

The Court held that the West Virgina court misread the Supreme Court decisions under the FAA and that "[w]hen this Court fulfilled its duty to interpret federal law, a state court may not contradict or fail to implement the rule so established." 

What might be of most interest to scholars and lawyers is the Court's statement that the FAA "reflects an emphatic federal policy in favor of arbitral dispute resolution." (citations omitted).

Mitchell H. Rubinstein

February 21, 2012 in Arbitration Law, Supreme Court | Permalink | Comments (0)

Thursday, August 25, 2011

Supreme Court Justices Writing Style

Supreme Court

Keep The Briefs Brief is an interesting May 20, 2011 article from the New York Times. It outlines some of the Justices writing styles and is worth a read.

Mitchell H. Rubinstein

August 25, 2011 in Supreme Court | Permalink | Comments (0)

Thursday, July 14, 2011

What is Justice Stevens Up To?

Justice Stevens Is Off The Bench But Not Out Of Opinions is an interesting May 30, 2011 article from the New York Times. The article describes how Justice Stevens, now 91, is still active; he is writing a book and has commented on some controversial Supreme Court cases.

What I find most interesting is that for the first time in my memory we have three living retired Supreme Court justices; Stevens, O'Conner and Souter. Supreme Court followers will want to read this piece.

Mitchell H. Rubinstein

July 14, 2011 in Supreme Court | Permalink | Comments (0)

Friday, July 8, 2011

Chief Justice Roberts Comments On Legal Scholarship Today

I am delighted to see that Chief Justice Roberts recently commented on contempory legal scholarship. The American Constitution Society Blog provides a picture of Chief Justice Roberts and summarizes his speech as follows:

Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he is on the same page with Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit, who believes there is a great “disconnect between the academy and the profession.”

Roberts continued, “Pick up a copy of any law review that you see, and 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.”

A law professor responded   "more often than not, published law review articles offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decision-making on how law develops in the courtroom.”

Chief Justice remarks are right on point. The legal academy focus on theory and is largely composed of professors who never practiced law. Law schools look to hire someone with a JD/Ph.d from Ivy league school and give little weight to litigation or other legal experience. My own law review scholarship has been crticized by some as "practice orientated." Law review scholars often cite each other and some do not even cite cases. 

Everyone I talk with about this agrees that there is too much focus on theory. But when are the law schools going to change? Unfortunately, I do not see change happening. 

Mitchell H. Rubinstein


July 8, 2011 in Law Professors, Law Review Articles, Law Review Ideas, Law Schools, Supreme Court | Permalink | Comments (25)

Monday, February 14, 2011

Justice Thomas Keeps His Silence

Supreme Court

It has been 5 years since Justice Thomas asked a lawyer a question during oral argument as outlined in this New York Times article. I do not view this as something positive. Oral argument is the time that Justices can challenge arguments made in briefs. It also provides an opportunity for lawyers to clarify any confusion and answer questions. Many cases, and perhaps all cases in the Supreme Court, are complex. To me, this simply is Justice Thomas' way of making his mark on the Court.

Mitchell H. Rubinstein 

February 14, 2011 in Supreme Court | Permalink | Comments (0)

Tuesday, January 11, 2011

Supremes Hold That Residents Must Pay FICA Taxes Even Though They Are Students-What Does This Mean For Labor Law?


I bring Mayo Foundation v. U.S., 562 U.S.___(Jan. 11, 2011), to your attention because of its possible effect on labor law. The Court held that medical residents must pay FICA taxes. The IRS Code provides that taxes must be paid on "wages." Wages are defined to encompass all remuneration for employment. Employment, in turn is defined as "any service, of whatever nature, performed . . . by an employee for the person employing him. Slip Op. at 2. 

The IRS issued a regulation in 1951 which stated that students were exempt from taxation if their work was "incident" to pursuing a course of study. In 2005, the IRS issued another regulation which stated that if an individual is normally slated to work more than 40 hours per week, then the work is not incident to pursuing a course of study.

In a 15 page opinion, the Court (7-0), with Justic Kagan not participating, upheld the IRS rule, relying on Cheveron deference.

So, what does this mean to the pending NLRB case which will reexamine the 2004 Brown decision? That is of course, difficult to say. Like the IRS, the NLRA is silent. The NLRA does not specifically state whether students are within the definition of the term employee. Therefore, it should be up to the NLRB to determine what this silence means. Does it mean that students are exempt? or does it mean that they should be included?

Given the purposes of the NLRA and how the NLRB (with Supreme Court approval) in cases like Town and Country broadly defined the term, it seem to be that the NLRB should reverse the Brown case and conclude that students should be included within the definition of employee under the Act. Stated another way, given the statutory and remedial purposes of the Act, the Act's silence should not be interpreted to exclude any group from its protection. 

Mitchell H. Rubinstein 


January 11, 2011 in Labor Law, Supreme Court | Permalink | Comments (0)

Thursday, November 11, 2010

Is the Roberts court moving to the right?

Supreme Court
 Under Roberts, Supreme Court Has Edged to the Right is an interesting July 24, 2010 New York Times article. I thought it would be appropriate to bring it to your attention now that a new term of the Supreme Court has started. According to the author, Adam Liptak, the addition of Kagan will not make much of a difference. As the article states:


In those five years, the court not only moved to the right but also became the most conservative one in living memory, based on an analysis of four sets of political science data.

And for all the public debate about the confirmation of Elena Kagan or the addition last year of Justice Sonia Sotomayor, there is no reason to think they will make a difference in the court’s ideological balance. Indeed, the data show that only one recent replacement altered its direction, that of JusticeSamuel A. Alito Jr. for Justice Sandra Day O’Connor in 2006, pulling the court to the right.

There is no similar switch on the horizon. That means that Chief Justice Roberts, 55, is settling in for what is likely to be a very long tenure at the head of a court that seems to be entering a period of stability.

I am not sure if the author is right. One Justice can make a difference. 


Mitchell H. Rubinstein

November 11, 2010 in Supreme Court | Permalink | Comments (0)