Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Wednesday, July 7, 2010

Summary of Supreme Court's Term

The Roberts Court Comes of Age is an interesting June 29, 2010 NY Times article that Supreme Court watchers will find of interest. It summarizes the major recent Supreme Court rulings and includes a multi-media chart showing how each Justice voted. One interesting statistic is that Chief Judge Roberts was in the majority 92% of the time.

Mitchell H. Rubinstein

July 7, 2010 in Supreme Court | Permalink | Comments (0)

Sunday, July 4, 2010

Supremes Grant Cert In Arizona Employment Law Case

Supreme Court

Workplace Prof Blog via Lawmemo.com recently reported that the Supremes granted cert in Chamber of Commerce v. Candelaria,  which involves a challenge to an Arizona law that penalizes employers from hiring aliens not authorized to work.

The cert questions taken are:

1. Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly "preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2).
2. Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note.

3. Whether the Arizona statute is impliedly preempted because it undermines the "comprehensive scheme" that Congress created to regulate the employment of aliens. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).

Immigration is one of the most difficult issues of our time. I cannot imagine that the Court will find that the law is NOT preempted.

Mitchell H. Rubinstein

July 4, 2010 in Employment Law, Law Review Ideas, Supreme Court | Permalink | Comments (0)

Saturday, July 3, 2010

Supremes Take Association Discrimination Case

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Workplace Prof Blog recently reported that the Supremes granted cert in Thompson v. North American Stainless, 09-291.Click here for the Scotuswiki page collecting links.The questions presented in the cert petition are: 

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?

This is a big issue and law review commentary would be most welcome.

Mitchell H. Rubinstein

July 3, 2010 in Employment Discrimination, Law Review Ideas, Supreme Court | Permalink | Comments (0)

Sunday, June 27, 2010

Kagan Confirmation Hearings Expected To Be Full of Politics

Supreme Court

The Kagan confirmation hearings begin today, June 28, 2010 and they are expected to be full of politics with an eye on the midterm elections. A New York Times article about this is available here. As the article states:

With an eye on the midterm elections, Democrats will use Ms. Kagan’s hearings, which begin Monday, to put the Roberts court on trial by painting it as beholden to corporate America.

Republicans will put Mr. Obama on trial over what they view as his Big Government agenda, and will raise questions about whether Ms. Kagan, his solicitor general and former dean of Harvard Law School, is independent enough to keep that agenda in check.

“This debate and what it says about President Obama will be part of the discussion, frankly,” said Senator Jeff Sessions of Alabama, the top Republican on the Judiciary Committee. Americans, he said, “are not happy with the expanding power of the federal government” and want judges to “say no to the federal government when it overreaches.”

Mitchell H. Rubinstein

June 27, 2010 in Supreme Court | Permalink | Comments (0)

Thursday, June 24, 2010

NYC Bar Association Report on Kagan Rates Her As Highly Qualified

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The Association of the Bar of the City of New York issued a 12 page report finding her highly qualified for a position on the Supreme Court. The Association reviewed information from a variety of sources:  Solicitor General Kagan’s memos written when she was a clerk for Supreme Court Justice Thurgood Marshall; her speeches and articles; her papers during her service in the Clinton White House; her 2009 testimony in the Senate hearings concerning her confirmation as Solicitor General; Supreme Court briefs and oral argument transcripts from cases she argued as Solicitor General; comments received from City Bar members and committees; a wide range of press reports, blogs and commentaries; and interviews with more than 80 individuals.

Supreme Court watches will find this report of interest.

Mitchell H. Rubinstein

June 24, 2010 in Supreme Court | Permalink | Comments (0)

Monday, June 21, 2010

Interactive Timeline Of So To Be Justice Kagan's Career

The New York Times has an interactive time line of Eleana Kagan's career. Readers may find it of interest-particularly now that her confirmation hearings are about to start.

Mitchell H. Rubinstein

June 21, 2010 in Supreme Court | Permalink | Comments (0)

Friday, June 18, 2010

Does Our Next Supreme Court Justice Have To Have Judicial Experience??

Rare Breed Now is an excellent April 30, 2010 article from the New York Times which questions whether the next Supreme Court Justice should be a sitting or former judge. The article highlights Elena Kagan who has no judicial experience.

My view is that judicial experience is not a prerequisite. However, appellate experience should be. If a candidate has argued appellate cases and briefs, that is sufficient.

I can understand how non-lawyers may over value judicial experience. They view the Supreme Court as a promotion. My view, however, is that there is nothing else like it.

Mitchell H. Rubinstein

June 18, 2010 in Supreme Court | Permalink | Comments (0)

Thursday, June 17, 2010

The Significance of New Process Steel

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The significance of yesterday's decision in New Process Steel v. NLRB which invalidated 2 Member Board decisions cannot be overstated. An NLRB press release states this case will effect 69 cases pending in the Circuits and 5 cases that are pending in the Supremes. The Board expects those cases to be remanded. The decision itself stated that over 500 2 Member Board decisions were issued.

So what will the Board do? I am afraid that each of these cases will have to be remanded for a de novo review. It is no secret that Board members may sometimes alter their decisions in order to get others to sign on to their opinion. Additionally, in several of the 2 Member Board decisions, one of the Board Members agreed with the other Board Member for institutional reasons.

Cases are going to be even further delayed. This situation, together with the inability of the President and the Senate to agree on full term appointments demonstrates that legislative relief and reform is badly needed. This is not a new problem at the NLRB. The agency is known to flip flop every time the Presidential party changes. Whether you are a Democrat or a Republican, I think we can all agree that the political process literally cripples the ability of the NLRB to work.

The problem with legislative relief is the political process itself. The reforms that the party in power would propose are far different than what the minority will accept.

It is time for Congress to consider replacing the NLRB with a National Labor Court where Court members are appointed for life, just like Article 3 judges. The judges should be appointed from the ranks of neutrals-not management or union side lawyers.

Mitchell H. Rubinstein

June 17, 2010 in NLRB, Supreme Court | Permalink | Comments (1)

Excellent Analysis of Quon

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Professor Robert Sprauge (Univ. of Wyoming) put together an excellent analysis of Quon which is available here. In my judgement, this was an easy case. The Court held that even if the public employee had a reasonable expectation of privacy (which the Court just about found), the search of the employer provider text pager was reasonable and therefore, not unconstitutional.

Mitchell H. Rubinstein

June 17, 2010 in Employment Law, Supreme Court | Permalink | Comments (0)

Breaking News Supreme Court Decides Important Case Concerning Employee Privacy Rights In Text Messaging

Supreme Court

The Supremes just handed down Ontario v. Quon, ___U.S.___(June 17, 2010), concerning the privacy rights employees may have in text messages.

Mitchell H. Rubinstein

June 17, 2010 in Employment Law, Supreme Court | Permalink | Comments (0)

Breaking News Supreme Court Invalidates Hundreds of 2 Member NLRB Decisions

Supreme Court

The Supreme Court just decided New Process Steel v. NLRB, ___U.S.___(June 17, 2010). In a 5-4 decision, the Supreme Court held that the NLRB did not have the authority to issue 2 Member Board decisions. This will result in hundreds of cases being invalidated.

Mitchell H. Rubinstein

June 17, 2010 in NLRB, Supreme Court | Permalink | Comments (0)

Thursday, June 3, 2010

Justice Scalia Is Pleased That Kagan Is Not A Judge

Supreme Court

Justice Scalia commented about President Obama's choice of Elena Kagan on the Supreme Court during a lecture he gave in Washington. A National Law Journal article described Justice Scalia's comments as follows:

During his keynote address at the second annual Judge Thomas A. Flannery Lecture in Washington, Scalia told the several hundred people in the audience that he was "pleased to see the most recent nominee come from outside the federal judiciary and indeed the judiciary as a whole." Elena Kagan is, of course, the U.S. solicitor general and has never been a state or federal judge.

Noting that all the current members of the Supreme Court came directly from federal circuit courts, Scalia said that the confirmation process has become "so politicized" that presidents have not wanted to take a chance on someone from outside the judiciary.

"When the confirmation process can become derailed by the most minor of details, why would a president want to give the Senate the easy excuse of saying, 'This nominee has no judicial experience. We don't want any on-the-job training on the federal bench,' " Scalia asked rhetorically.

Moreover, he observed that the same thinking has extended to nominees for lower-court judgeships, so that fewer and fewer federal judges are coming from private practice, law schools or corporate legal departments. Instead, "the people who typically get nominated to the federal bench get promoted right through the system," he said.

Scalia said that approach was "dangerous" because it follows what he dubbed the "European system." A primary difference between the common law system in the United States and the civil law systems of many European countries is the nature of the judge, he said.

Mitchell H. Rubinstein

June 3, 2010 in Supreme Court | Permalink | Comments (0)

Tuesday, May 25, 2010

Soon To Be Justice Kagan Was Not A Straight A Student

A B Minus? The Sock! The Horror is an interesting May 24, 2010 New York Times article. It recounts how soon to be Justice Kagan was not a straight A student. She even got a B minus in her first year. Then again, she was not attending just any law school. She was attending Harvard. Whatever you think of the education, the fact of the matter is that Harvard opens up doors that others cannot walk into-such as clerkship on the Supreme Court. Kagan, was a law clerk to Justice Marshall.

In any event, this article is worth a read.

Mitchell H. Rubinstein

May 25, 2010 in Supreme Court | Permalink | Comments (1)

Thursday, May 20, 2010

Does It Matter If Elena Kagan Is Gay?

Supreme Court

Though I consider myself a supporter of gay rights, I believe it matters-in fact it matters a lot if Elena Kagan is gay. We made it a big deal when a woman or a minority is appointed to the Court. We look at where the nominee is from and what schools he or she may have attended. Remember, those pictures of Chief Justice Roberts children at the White House when his nomination was announced?

So it matters if a nominee is gay. The question should not be if it matters, but how it matters. My view is that a nominees sexuality should be given the same weight as a nominees sex, race and home state. It matters as a point of information, culture and history. However, a person's sexuality should not be a factor in a Senator's confirmation vote.

Mitchell H. Rubinstein

May 20, 2010 in Supreme Court | Permalink | Comments (0)

Wednesday, May 19, 2010

Elena Kagan Timeline

Supreme Court

The New York Times ran an interesting time line summary, together with pictures, of Elena Kagan's life. Supreme Court watches may want to check it out.

Mitchell H. Rubinstein

May 19, 2010 in Supreme Court | Permalink | Comments (0)

Monday, May 10, 2010

President Obama Nominates Elena Kagan to the U. S. Supreme Court

In the instant-information era, this is already old news, but for the record, President Barack Obama nominated Solicitor General Elena Kagan, former Dean of the Harvard Law School, to the United States Supreme Court earlier today.

Kagan is nominated to replace the retiring Justice John Paul Stevens.

There are two notable points to make about this nomination - first, Kagan, if confirmed, will give the court three female justices for the first time in the court's history.  Kagan will join Justice Ruth Bader Ginsberg, nominated by President Clinton, and Justice Sonia Sotomayor, an Obama nominee.  Second, Kagan's confirmation would mean that all nine justices have Ivy League law school graduates.  Justice Stevens received his law degree from Northwestern Law School in Illinois.

Kagan, if confirmed, will be the first Supreme Court nominee to ascend to the Court with no prior judicial experience in almost 40 years - since President Nixon nominated and the Senate confirmed William Rehnquist to the court in 1971.  Rehnquist, of course, went on to become Chief Justice in 1986.  President Bush's 2005 nominee to replace Justice O'Connor, Harriet Miers, also had no prior judicial experience when she received the nomination.  Miers later withdrew her name from consideration.

ScotusBlog is covering the Kagan nomination comprehensively - this is as good a place as any for developing news and commentary about Justice Nominee Kagan.

Craig Estlinbaum

May 10, 2010 in Supreme Court | Permalink | Comments (0)

Friday, April 23, 2010

The Stevens Legacy

The Stevens Legacy is an excellent National Law Journal series of articles that summarizes the amazing career of Justice Stevens. I thought readers would find these articles of interest. Justice Stevens will be missed.

Mitchell H. Rubinstein

April 23, 2010 in Supreme Court | Permalink | Comments (0)

Tuesday, April 20, 2010

Supremes Grant Cert in USERRA Cat Paw's Case

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Workplace Prof Blog reports via Ross Runkel's LawMemo that the Supremes granted cert in a "Cat's Paw" case invovling USERRA. Staub v. Proctor Hospital (US Supreme Ct cert granted 04/19/2010). The issue is "In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?"

The Supremes granted cert in a previous Title VII case, but that case ultimately settled. 

Prof Secunda and Runkel believe that the case will ultimately be decided according to the law of agency and if racial animus is a motivating factor for someones discharge, that is enough. I tend to agree, but I offer a footnote here.

We are dealing with USERRA, not Title VII. USERRA is a very pro employee statute designed to protect members of the armed forces who serve our country. Regardless of how the court rules here, the issue will remain unresolved under Title VII.

Mitchell H. Rubinstein

April 20, 2010 in Employment Law, Law Review Ideas, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Sunday, April 18, 2010

Supremes Ask For Additional Briefing Now That Obama Made Recess Appointments To Supremes

Supreme Court

As readers to this blog all know, the issue of whether the NLRB has the authority to issue decisions with only two Members is pending in the Supremes. President Obama recently made two recess appointments which put the Board at four (instead of 5). The Supreme Court asked the parties for additional briefing on what effect, if any, this might have on the case.

I agree with Professor Secunda. This should have no effect. As professor Secunda points out, the fate of some 500 or so cases remains at issue. Additionally, this issue is capable of being repeated and I do not believe that the issue is moot. 

The Supreme Court order requesting additional briefing is available here.

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein

April 18, 2010 in Law Review Ideas, NLRB, Supreme Court | Permalink | Comments (0)

Tuesday, April 13, 2010

Copy of Justice Stevens Retirement Letter

Supreme Court

Ever wonder what a U.S. Supreme Court Justice retirement letter looks like? You can see a copy of Justice Stevens' letter here. Note, how he addresses the letter; "My dear Mr. President:"

Mitchell H. Rubinstein

April 13, 2010 in Supreme Court | Permalink | Comments (0)