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Editor: Mitchell H. Rubinstein
New York Law School

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Wednesday, April 16, 2014

Brooklyn Law School Cuts Tuition

Yes, it's true and it is by 15%. Story here.  Brooklyn is not alone. As CNN reports:

A handful of other schools have cut tuition as well. The most prestigious school in this group is the University of Iowa, which reduced tuition by 16.4%. Others include the University of Arizona (11% in-state, 8% out-of-state) and Roger Williams University (18%). A few schools have really gone all out: Penn State cut tuition by nearly 50% for in-state students in the class of 2014, and the University of La Verne reduced tuition from $39,500 to $25,000 and completely did away with merit aid. (It's worth mentioning that the American Bar Association revoked La Verne's provisional accreditation in 2011; the school has since earned it back.)

Mitchell H. Rubinstein

April 16, 2014 in Law Schools | Permalink | Comments (0)

Tuesday, April 8, 2014

NY Court of Appeals Issues Major Duty of Fair Representation Decision

Palladino v. CNY Centro, ___N.Y.3d___(April 8, 2014), is a major decision.  In a 5-2 decision the New York Court of Appeals affirms the dismissal of a duty of fair representation case brought against a labor union that refused to take a discharge case to arbitration. Why, because each and every member of the union did not ratify the decision. 

In so holding, the Court re-affirmed Martin v. Curran, 303 N.Y. 276 (1951) and quoted my article, Union Immunity from Suit in New York, 2 NYU J. L. & Bus. 641, 649 (2006).  The Court correctly reasoned that NY still follows the common law which does not consider unincorporated associations to be juristic entities. Liability remains with the individual union members.

The Court noted the critisim that the Martin rule has received and the fact that it is virtually impossible for any labor union in New York to have common law liability.

The Court, however, noted that Plaintiff could have filed a DFR improper practice under the Taylor Law. 

It is feels good to be cited by the Court of Appeals.

Mitchell H. Rubinstein

 

April 8, 2014 in Duty of Fair Representation, New York Law, Public Sector Employment Law, Public Sector Labor Law, Unions | Permalink | Comments (0)

Monday, April 7, 2014

Review of Litigation: Rule 91a Seminar

The Review of Litigation (Texas) is hosting a 1-hour seminar on April 10 titled, "Motions to Dismiss Under New Texas Rule 91a: Practice, Procedure and Review."  Attendees will earn one hour of MCLE credit.    Click on the link for contact information.

Craig Estlinbaum

April 7, 2014 in Conferences, CLE | Permalink | Comments (0)

Tuesday, April 1, 2014

Attorneys and Depression

Brian Clarke (Charlotte) has written an extremely important and ultimately courageous post, "Law Professors, Law Students and Depression . . . A Story of Coming Out (Part 1)" at The Faculty Lounge on depression and anxiety's alarming incidence among attorneys.  Clarke relates some truly disturbing statistics on depression and suicide in the legal profession (emphasis in original):

Lawyers, as a group, are 3.6 times more likely to suffer from depression than the average person. Of 104 occupations, lawyers were the most likely to suffer depression.  (Both of these statistics are from a Johns Hopkins University study to which I cannot find a link). 

Further, according to a two-year study completed in 1997, suicide accounted for 10.8% of all deaths among lawyers in the United States and Canada and was the third leading cause of death.  Of more importance was the suicide rate among lawyers, which was 69.3 suicide deaths per 100,000 individuals, as compared to 10 to 14 suicide deaths per 100,000 individuals in the general population.  In short, the rate of death by suicide for lawyers was nearly six times the suicide rate in the general population. 

Clarke continues along this vein and introduces his own story fighting mental illness in this first in a three-part series on the subject. 

Some states have added a mental health component to the continuing legal education requirements, and many state bar associations have established hotlines and resources for attorneys battling mental illness.  The Texas Lawyers Assistance Program serves this latter function in Texas -- the Program's 24-hour hotline number is 1-800-343-8527. 

Craig Estlinbaum

April 1, 2014 in Blogs, Faculty, Ethics, Law Schools, Law Students, Lawyers | Permalink | Comments (0)

Thursday, March 27, 2014

College Football Players Can Unionize!

An NLRB Regional Director ("RD")in Illinois just directed an election in a unit involving college football players.  Download Northwestern University RD Decision

The Regional Director held that football players who were given scholarships were employees and not students. The RD applied the common law right to control test.

Of significance is that the RD distinguished Brown University which held that graduate students were not employees. Rather, they were students. According to the RD, graduate assistant responsibilities were inextricabley related to there graduate studies. Additionally, unlike Brown, the RD concluded that the football players were not primarily students, the scholarship was not a core element of their degree, the academic faculty did not supervise the football players and the scholarship was not a form of financial aid.

Those of you who know me, know that I believe that Brown University was wrongly decided and that the Board erred in Brown by not applying the common law right to control test. However, Brown remains the law until it is over-ruled by the Obama Board (which I expect to happen), and I find the RD decision poorly reasoned and disingenous. The basis which the RD used to distinguish Brown make no sense.

The football players are enrolled in the college and they are getting a degree. No doubt they generate income for the college, but so do graduate assistants. The fact that they are not supervised by the academic faculty and that playing football is not financial aid is totally irrelevant. The football players all must be enrolled in the college and I believe the NCAAA even sets academic standards that they must meet.

I doubt however, that this case will be reversed on appeal. As I said, Brown was wrongly decided and this decision may give the Board the opportunity to over-rule it for once and for all.

Mitchell H. Rubinstein 

 

March 27, 2014 in NLRB | Permalink | Comments (0)

Wednesday, March 26, 2014

South Texas Law Review 55:1

South Texas Law Review has released its Volume 55, No. 1, which includes:

  • A Comity of Errors: Treading on State Court Jurisdiction in the Name of Federalism, by Emily L. Buchanan;
  • The Jurisprudence of Texas Supreme Court Justice Robert A. "Bob" Gammage: A Legacy ofCivil Rights and Liberties, by John C. Domino;
  • Ethical Falsehood: Towards a Moral Values Paradigm in False-Speech Adjudication, by Daniel Ross Goodman;
  • Challenging the Federal Prohibition on Gun Possession by Nonviolent Felons, by Conrad Kahn.
  • Comment: Private Employers & Minority Preferences:  Will Somthing Other Than a Remedial Justification be Sufficient, by Jill Hale;
  • Comment: Texas' Iron-Clad Corporate Veil: Re-Examining Section 21.223 of the Texas Business Organizations Code, by Rachel Thompson; and
  • Comment: Litigant Consent as a Constitutional Threat: Reconsidering the Jurisdiction of Magistrate Courts after Stern v. Marshall, by Lori Yount.

Craig Estlinbaum

March 26, 2014 in Law Review Articles | Permalink | Comments (0)

Tuesday, March 25, 2014

Texas Journal on Civil Liberties & Civil Rights and Virginia Law Review Symposia

Two symposia, one hosted by the Texas Journal on Civil Liberties & Civil Rights, the other by the Virginia Law Review, will begin on March 28.

First, from the Texas Journal on Civil Liberties & Civil Rights website:

TJCLCR is partnering with the William Wayne Justice Center and The University of Texas School of Law's Civil Rights Clinic to present a conference that will examine the law as a tool to close the educational achievement gap, with a special focus on Texas. Closing the achievement gap requires a multi-faceted approach that addresses issues at the community, school, and policy levels. Aimed at education reformers, lawyers, educators, policy makers, scholars, and students, this conference will explore ongoing law-related efforts to close the achievement gap as well as possible future initiatives.

Agenda and registration information for this one-day symposium is here.

The Virginia Law Review will celebrate its 100th year with a symposium discussing "four of the most influential and thought provoking articles published in the Virginia Law Review."  The four articles scheduled to be discussed are:

  • Anthony J. Bellia, Jr. and Bradford R. Clark, The Law of Nations as Constitutional Law, 98 Va. L. Rev. 729 (2012);
  • Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947 (1995);
  • Ronald J. Gilson and Reinier H. Kraakman, The Mechanisms of Market Efficiency, 70 Va. L. Rev. 549 (1984); and of course,
  • Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38 (1936).

Event details and registration information for this two-day symposium are here.

Craig Estlinbaum

March 25, 2014 | Permalink | Comments (0)

The Scholar (St. Mary's): Immigration Symposium

On April 4, 2014, The Scholar: St. Mary's Law Review on Race and Social Justice is hosting its Immigration Symposium 2014 titled, "Changing the Guard: Empowering Advocacy Through Education," at the Plaza Club in downtown San Antonio, Texas.  I will be presenting a paper at this symposium, "Effective Plea Bargains for Noncitizens"  The Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356 (2010), held defense attorneys must advise non-citizen clients about the deportation consequences associated with the noncitizen defendant's guilty plea.  The paper addresses how this case and cases that followed have affected the plea bargain process in state and federal courts when the defendant is not a citizen.  The other presentations are:

  • Michelle Garza & Eric Tijerina–“Plight of Unaccompanied Minors Navigating the Immigration Court System and Forms of Relief for Them;”
  • Joseph DeMott“Basics of Immigration Law—Lessons Learned From 38 Years in the Trenches;”
  • Angelica Jimenez & Laura Figueroa –“The Slow Yet Long Anticipated Death of DOMA;”
  • Adriana Pinon –“Practicing Law in the ‘Constitution-Free Zone’: The Suspension of the Bill of Rights at America’s Borders;”
  • Hon. Anibal Martinez & Hon. Craig Harlow Federal Judicial Panel about Judicial Preferences "Viewing the Front Line from the Bench: What Judges Want Lawyers & Advocates to Know;"
  • Jodi Goodwin –“Vacating In Absentia Orders via Motions to Reopen;”
  • Roberto & Claudia Balli “Sentencing Advocacy for Immigrants in Federal Court;”  and
  • Anne Olrich –“From Consultation to Contract.”

I am very honored to be included in this symposium.

Craig Estlinbaum

March 25, 2014 | Permalink | Comments (0)

Monday, March 24, 2014

Indiana Health Law Review: Neuroscience and Law Symposium

The Hall Center for Law and Health and the Indiana Health Law Review are co-hosting a one-day symposium on March 28 titled, "Neuroscience and Law: Injury, Capacity and Illness."  The symposium will be held at Wynne Courtroom and Atrium,Inlow Hall on the law school campus in Indianapolis.  Topics include "Neuroscience 2.0 and Tort Law," "Child Contact Sports and Concussion," "Neuroscience and Mental Health Law," "Adolescence, Aging and Capacity," and "Predictive Testing, Decision Making and Ethics." 

Acknowledgment:  Sheila B. Scheuerman (Charleston) originally posted this item at TortsProf Blog.

Craig Estlinbaum

March 24, 2014 | Permalink | Comments (0)

Saturday, March 22, 2014

Campbell Law Review: Symposium Call For Papers

Campbell Law Review has announced a call for papers for its October 17, 2014, symposium, "One City at a Time: The Role and Increasing Presence of Chapter 9 Municipal Bankruptcies."  The call for papers announcement is here.  HT:  Calling All Papers!

Craig Estlinbaum

March 22, 2014 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

A Cautionary Tale

Kendall D. Isaac (Appalachian) provides a cautionary tale at the Appellate Advocacy Blog (link).

Craig Estlinbaum

March 22, 2014 in Blogs, Faculty, Ethics, Law Professors, Lawyers | Permalink | Comments (0)

Friday, March 21, 2014

Illinois Declares Eavesdropping Law Unconstitutional

Yesterday, a unanimous Supreme Court of Illinois declared the state's eavesdropping law to be unconstitutional.  The case is Illinois v. Melongo, No. 114852 (Ill., March 20, 2014).

The statute reads:

(a) A person commits eavesdropping when he:

(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication or (B) in accordance with Article 108A or Article 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended; or

***

(3) Uses or divulges, except as authorized by this Article or by Article 108A or 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device.

The defendant argued that the statute violated the first amendment both as to the recording provision in (1) and the publishing provision in (3), both facially and as applied.  The court observed that the law's stated purpose was to protect conversational privacy.  The law, however, "deems all conversations to be private and, thus, not subject to recording absent consent, even if the participants have no expectation of privacy."  The court held that the statute, "burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy."  Therefore, the recording provision violates the first amendment on its face.  The court reached the same conclusion regarding 14-2(a)(1) in a different case presenting different facts the same day in Illinois v. Clark, No. 115766 (Ill. Mar. 20, 2014).

The State conceded that if the recording provision fails first amendment muster, the publishing provision must too fail, due to a U. S. Supreme Court decision on point.  Bartnicki v. Vopper, 532 U.S. 514 (2001).  In that case, "[t]he Court held that under the first amendment, the state may not bar the disclosure of information regarding a matter of public importance when the information was illegally intercepted by another party who provided it to the disclosing party.    The Illinois court determined that because Melongo was in the innocent party's position due to 14-2(a)(1) being declared unconstitutional, a bar against publishing the recording subjected her to a, "naked prohibition against disclosure." 

In a Chicago Tribune report on the case, Steve Schmadeke notes (link added):

The decision comes two years after a federal appeals court in Chicago found unconstitutional the law's ban on recording police officers in public. The 7th Circuit Court of Appeals ruling prohibited enforcement of that part of the law shortly before Chicago hosted the NATO summit in May 2012.

Craig Estlinbaum

March 21, 2014 in Constitutional Law, First Amendment, Interesting Cases | Permalink | Comments (0)

Thursday, March 20, 2014

Special Education Hearing Officer Job-Boston MA

https://jobs.hrd.state.ma.us/recruit/public/31100001/job/job_view.do?postingId=J40302&code=search.public&federalStimulus=no&companyId=20

March 20, 2014 in Lawyer Employment | Permalink | Comments (0)

Wednesday, March 19, 2014

Cleveland-Marshall: Master of Legal Studies Degree

Karen Sloan, National Law Journal, reports that Cleveland-Marshall will, "allow students who complete one year of studies but don't want to continue their l.egal educations to receive a master of legal studies degree." HT: Above the Law.

Craig Estlinbaum

March 19, 2014 in Law Schools, Law Schools, News, Law Students | Permalink | Comments (0)

Monday, March 17, 2014

Journal of Air Law and Commerce: Air Law Symposium

SMU's Journal of Air Law and Commerce is hosting its 48th Annual Air Law Symposium on April 3-4 at the Omni Mandalay Hotel in Las Colinas, Texas.  Information on this symposium, including agenda and registration details, is found here.

Craig Estlinbaum

March 17, 2014 in Conferences, CLE, Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Sunday, March 16, 2014

Stern: Property, Exclusivity, and Jurisdiction

James Y. Stern (William & Mary) has posted, "Property, Exclusivity, and Jurisdiction, to SSRN.  The paper has been published at 100 Va. L. Rev. 111 (2014). This is the abstract:

Property has always been treated somewhat exceptionally in the realm of conflict of laws, but today conflicts rules for property are more unusual than ever — not because they have changed, but because they haven’t. Decades ago, most states discarded the general body of traditional conflict-of-laws doctrines, a transformation referred to as the Conflicts Revolution. Property, however, remains mysteriously untouched. The basic common-law principle is that property is governed by the law of its location — the situs rule. Despite persistent academic criticism, the situs rule is still followed in every state.

This article argues certain structural features of property support the situs rule, notwithstanding the Conflicts Revolution. Theorists have increasingly stressed property’s “in rem” quality — the idea that property is “good against the world.” This article shows how that feature creates a special need for uniform treatment across jurisdictions, such that a single, exclusive source of law is applicable to questions concerning the division of rights in a given asset. Property’s in rem character is a consequence of the allocational model used as the central organizing concept in property law. That model treats each property entitlement as part of a zero-sum game, in that one person’s entitlement to an asset means no one else can validly hold an incompatible claim to the same asset. Using different rules to resolve the same legal issue both aggravates the information cost problems generated by such a system and undermines its overall coherence. The situs rule in turn responds to the elevated need for uniformity in the property context by creating a focal point that enables states to coordinate their conflicts rules. The article shows how uniformity devices pervade property, including intellectual property and even other fields with certain formal resemblances, such as marriage and corporations law. Beyond its implications for issues of property jurisdiction, this article helps show where property’s much discussed “in rem” character comes from, what it really means, and how it distinguishes property from other private law fields like contract and tort.

In this paper, Stern effectively defends the "situs rule" against "academic hostility."  At the risk of oversimplifying, the situs rule states that the place where the property is located holds exclusive jurisdiction over cases relating to that property.  Stern explains, "the rule calls for the resolution of property questions using the substantive law of the situs of the property in dispute."

Craig Estlinbaum

March 16, 2014 in Civil Law, Law Review Articles | Permalink | Comments (0)

Saturday, March 15, 2014

Texas: Miller v. Alabama Applies Retroactively

The Texas Court of Criminal Appeals this week held that Miller v. Alabama, 132 S. Ct. 2455 (2012), applies retroactively.  In Miller, the Supreme Court held mandatory life without the possibility of parole sentences are unconstitutional for offenders that committed their crime while under 18 years of age.  The Texas case is Ex Parte Maxwell, No. WR-76,964 (Tex. Crim. App., March 12, 2014).

A jury found Maxwell guilty of capital murder arising out of a 2007 murder/robbery.  The State did not seek the death penalty so under Texas law the sentence automatically became life without possibility of parole after the jury returned the guilty verdict.  Maxwell was 17 when the crime occurred.

Texas utilizes the frameword announced in Teague v. Lane, 489 U.S. 288 (1989) to determine whether or not a Supreme Court opinion should be applied retroactively to criminal convictions already final following direct appeal.  The Teague framework provides a new rule applies retroactively in a latter collateral proceeding only if the rule (1) is substantive or (2) is a "watershed" rule of criminal procedure.  This court noted the split in authority nationally on Miller's retroactivity, and the court further observed a split on the question between two Fifth Circuit panels -- Texas lies within the Fifth Circuit.  The majority examined the cases creating the split, acknowledged the Supreme Court must ultimately resolve the split, looked into its "crystal ball" and concluded that evenutally the Supreme Court would apply Miller retroactively.   

The court decided the case 5-4 and generated short two dissents (see here and here).  This Texas case joins the deepening split among the several states and federal circuits regarding Miller's retroactivity.  We can expect more appeals courts to weigh in on the question until the Supreme Court ultimately grants cert and resolves the matter once and for all.

Craig Estlinbaum

March 15, 2014 in Constitutional Law, Criminal Law, Recent Developments | Permalink | Comments (0)

Friday, March 14, 2014

Florida: Damage Cap Statute Violates State Constitution

In a notable state constitutional law decision, the Florida Supreme Court on certified questions from the 11th Circuit, held that Florida's statutory cap on noneconomic damages in wrongful death cases violates the equal protection clause in the Florida Constitution.

The case is Estate of McCall vs. United States, No. SC11-1148 (Fla., March 13, 2014). 

Craig Estlinbaum

March 14, 2014 in Constitutional Law, Legislation, Recent Developments | Permalink | Comments (0)

Thursday, March 13, 2014

Judicial Campaigns, Facebook and the Appearance of Impropriety

A committee supporting a trial judge's re-election creates a Facebook page supporting the campaign.  That page allows the judge's supporters and others in the community to post comments on the page, including comments on pending cases.  Attorneys in one such case move to disqualify or recuse that judge because comments posted on the campaign's page by others -- not the judge and not the parties or their attorneys -- about the pending case "gives the appearance of impropriety and a lack of impartiality."  What is the result?

Earlier this month, a three-justice panel from the New Mexico Supreme Court denied a motion to disqualify a judge under such circumstances in a civil case.  A New Mexico company, Valley Meat Co., filed the motion to disqualify after the judge granted the Attorney General's application for temporary restraining order preventing Valley Meat from opening a horse slaughterhouse facility near Roswell.  According to the reports, the Attorney General sought to block the slaughterhouse from opening because of "food and water safety concerns and unfair business practices."  Valley Meat sought to disqualify the judge because of comments posted by horse slaughter opponents on a the judge's election campaign Facebook page.

Writing about the case in February, Scott Sandlin of the Albuquerque Journal News examined some implications associated with increased social media use by judges  and also provided greated back story to this case and Valley Meat's motion to disqualify.  The panel's order itself does not appear to be available online at this time.

Several states and the American Bar Association have pubished opinions relating to social networking by judges.  Little attention has been paid in these opinions to when, if at all, judicial campaign activity intersects with judical ethics restrictions on social media use.  As judicial elections utilize social media in greater numbers, expect to see more cases like this New Mexico case arise.

See Also:

Craig Estlinbaum

March 13, 2014 in Ethics, Interesting Cases, Judges | Permalink | Comments (0)

Wednesday, March 12, 2014

Facebook Friendship Leads to Disqualification

A Fresno, California judge has disqualified himself from a civil case after the trial's conclusion but before signing the final judgment following his admission that he was Facebook friends with an attorney in the case.  The Fresno Bee reports:

The judge who smacked Paul Evert's RV Country with a $4.5 million defamation verdict has disqualified himself from the case after he admitted that he was Facebook friends with one of the lawyers who prevailed in the Fresno County Superior Court civil trial.

Judge Jeffrey Hamilton's decision to give up the case appears to follow state judicial ethics guidelines. It also puts the verdict in question because he had not signed the final judgment, and could give rise to Evert and his employees getting a new trial.

The story suggests that prior to trial commencing, the judge revealed to all parties that he was friends with the plaintiff's attorney.  No party lodged an ojection to the judge presiding upon that revelation.  However, the judge failed to disclose his Facebook friendship until after he ruled for the plaintiff, who was represented by his Facebook friend, in a non-jury trial.  In the defense motion to disqualify, defense counsel claimed that the judge's relationship with plaintiff's counsel was "was closer than had been previously disclosed by Judge Hamilton," and that had the Facebook connection been disclosed, defendant would not have waived a jury trial.

Notably, California Judge's Association Judicial Ethics Opinion No. 66 (2010) relating to judicial use of social networking states:

When a judge learns that an attorney who is a member of that judge’s online social networking community has a case pending before the judge the online interaction with that attorney must cease (i.e. the attorney should be“unfriended”) and the fact this was done should be disclosed ... Regardless of the nature of the social networking page, maintaining online contacts while a case is pending creates appearance issues that cannot be overcome through disclosure of the contacts.

See Also:

Craig Estlinbaum

 

March 12, 2014 in Ethics, Judges, Lawyers, Legal News | Permalink | Comments (1)