Adjunct Law Prof Blog

Convicted Murder Who Spent 18 Years In Prison Has His Conviction Overturned

Man Jailed For 91 Murder Has Conviction Overturned is a very interesting Nov. 12, 2009 New York Times article.

This case illustrates an important fact. Our criminal justice system is not perfect and mistakes are made. The article summarizes the a judge's decision overturning a murder conviction for an individual who served 18 years as follows:

In his 79-page decision, Justice Cataldo wrote that Mr. Bermudez’s rights were violated because the police had allowed prosecution witnesses to view Mr. Bermudez’s mug shot as a group and to discuss his resemblance to the killer. Justice Cataldo also found that the prosecution should have known before sentencing that one of its cooperating witnesses, Efraim Lopez — a teenager whom Mr. Blount had punched at the club — had given false testimony.

“I find no credible evidence connects Fernando Bermudez to the homicide of Mr. Blount,” Justice Cataldo wrote. “All of the people’s trial evidence has been discredited: the false testimony of Efraim Lopez and the recanted identifications of strangers. I find, by clear and convincing evidence, that Fernando Bermudez has demonstrated he is innocent of this crime.”

Mitchell H. Rubinstein

Cyberbullying

I did not even realize that there was such a thing as cyberbullying.However, as discussed in Better Laws Are Needed To Prosecute Cyberbullies, cyberbulling is real. (New York Law Journal Oct. 13, 2009)(registration required). What is it? As the article states:

Cyberbullying takes place when at least one child uses technology to threaten another child. The nature of the threats are varied, including cyberstalking (following victims wherever they go online); building fake profiles and pretending to be the victim; signing up the victim for e-mail lists, junk e-mail and pornography; sharing intimate information about the victim with the world; "photoshopping" the victim's head onto someone else's body; hacking into a victim's computer or sending computer viruses; doing illegal or immoral actions in the name of the victim in order to get the victim in trouble, to name a few.

This behavior is particularly difficult for police because, on one side, the victim is scared and the victim's parents are even more scared and very angry. On the other side, bullies are underage and likely too immature to have thought about the results of their actions, and often their parents have no idea the behavior is occurring.

The article focuses on children, but it seems to me that adults can be just as guilty. The article also focuses on the criminal law, but it also seems to me that tort type law suits and even employment lawsuits can arise if the bullying takes place at work.

Mitchell H. Rubinstein

Marc Dreier Disbarred

Marc S. Dreier, 59, the former sole equity partner of 250-lawyer Dreier LLP who in May pleaded guilty in federal court to selling more than $700 million in bogus real estate and pension plan notes, was recently disbarred.  The case is Matter of Dreier. A New York Law Journal article about this case is available here.

Mitchell H. Rubinstein 

West Puts Law Books On Kindle

West recently announced that it is releasing e-book editions of 29 of its most popular law books. The releases include the book co-authored by Supreme Court Justice Antonin Scalia legal wordsmith Bryan Garner, Making Your Case: The Art of Persuading Judges. West is offering the titles for electronic download to be read on Amazon's Kindle e-book reader. Recently, Amazon dropped the price of the U.S. version of the Kindle by $40 to $259.

A sign of the times. Sounds like a good idea to me. Will save everyone money.

Mitchell H. Rubinstein

WOMEN ON PACE TO BE MAJORITY OF UNION WORKERS

Women are on track to become a majority of unionized workers in the next 10 years, signaling their growing clout in the labor movement. A NY Times article about this is available here.

Mitchell H. Rubinstein

Changes To EFCA On The Way??

Workplace Prof Blog ran an interesting Oct 10, 2009 story about Senator Bayh's comments on possible EFCA changes. Most interesting is that Bayh does not support card check for first contract arbitration-but does support a  form of arbitration involving last best offer. The Senator is quoted as saying:

I’m for reform of the labor law system. I’ve said that repeatedly. I think there are problems with the election process getting strung out months and months and months. Some of the penalties for either side committing abusive conduct are either meaningless because they’re too small or they get strung out for years and it doesn’t have an impact. And when you do have successful elections, sometimes the negotiations go on for years and the results of the elections are frustrated in that. At the same time, I think preserving the secret ballot is a good thing. The hardest issues are what do you do once there’s been a successful election and there’s just an impasse at negotiations? I don’t think we’re going to have binding arbitration. But is the mechanism short of that? Is it some sort of last best offer? Is there some sort of finding of bad faith trigger? Some sort of action for mediation? I don’t know. I’m not on the committee that handles that, either, so I am an observer. I’m hoping we can reach a sensible compromise. Many in the business community this summer felt this is going to go off on an irrational way. I’ve heard their concerns. But many in the business community say, “Look, if you can preserve the secret ballot, have reasonably prompt elections, meaningful penalties for those few bad actors out there, then there is some incentive for people to bargain in good faith.” Many in the business community would support that kind of thing. Many on the labor side would say that’s not everything they want, but it’s a step forward. So I’m hopeful we’ll end up in that place. Only time will tell. I told the labor guys this and this is above my pay grade, but I don’t think we’re even going to vote on it this year.

Mitchell H. Rubinstein

Recent Supreme Court Action In Education Law Cases

Review denied

Hudson Area Schools v. Patterson, 551 F.3d 438 (6th Cir.); Docket No. 09-143; Equity & Discrimination: peer on peer sexual harassment – school district’s liability; Review denied 10/5/09.

Jallali v. NOVA Southeastern Univ. Inc., 992 So.2d 338 (Fla. App.); Docket No. 08-1544; Legal System: refusal to confer degree – breach of contract – failure to satisfy requirements; Review denied 10/5/09.

Mayer Unified Sch.Dist. v. Arizona State Land Commissioner, 201 P.3d 523 (Ariz.); Docket No. 08-1518; Finance: easements over state trust lands – compensation – limitations; Review denied 10/5/09.

L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900 (9th Cir.); Docket No. 08-1414; Special Education & Disabilities: IDEA – procedural due process – parental observation of school district’s proposed program; Review denied 10/5/09.

Stancourt v. Worthington City Sch. Dist., unpublished (Ohio App.); Docket No. 08-1373; Special Education & Disabilities: IDEA – violation of procedural requirement – change in placement; Review denied 10/5/09.

Frazier v. Smith, 535 F.3d 1279 (11th Cir.); Docket No. 08-1351; Student Rights & Discipline: Pledge of Allegiance – student decision not to recite – parental consent; Review denied 10/5/09.

Barr v. Lafon, 538 F.3d 554 (6th Cir.); Docket No. 08-1325; Student Rights & Discipline: high school’s ban on clothing depicting Confederate flag – First Amendment; Review denied 10/5/09.

__________

Petition for certiorari

Busch v. Marple Newtown Sch. Dist., 567 F.3d 89 (3d Cir.); Docket No. 09-315; Religion: school’s restrictions on reading scripture to kindergarten class – First Amendment; Filed 9/9/09.

Mitchell H. Rubinstein

Seattle to unveil new student assignment plan soon

The Seattle School Board plans to roll out its new student assignment plan next month, says CrossCut.com. The board hopes to adopt a new plan, assigning students largely to neighborhood schools, with far fewer "escape valves." The Seattle School Board ended the school district’s 30-year experiment with desegregation busing June 17 this year, when it approved a new student assignment plan based on residence, not race. The board scraped the previous plan when the U.S. Supreme Court ruled that Seattle could not use assignment rules to adjust the racial balance of its high schools.

Crosscut.com, 10/5/09

ADEA Complaints Decline By 7%

In a November 6, 2009 National Law Journal article, it is reported that ADEA lawsuits filed with the EEOC were down 7%. As the article states:

The EEOC said Friday that it is preparing to release statistics indicating that age discrimination complaints declined by 7% in 2009. That would contradict the expectations of most labor lawyers, given heavy job losses, and an earlier forecast by the agency itself.

"The facts are turning out different than people thought in terms of age discrimination charge numbers," said Carol Miaskoff, assistant legal counsel to the EEOC. "What is sort of anecdotally appearing to people is not what we're seeing in the numbers."

A drop in age discrimination complaints would be in sharp contrast to the trend in 2008, which saw a 30% rise in age discrimination charges compared to 2007 — from 19,103 complaints to 24,582.

I am quite surprised by this. In hard economic times, where people are out of work I would have expected these numbers to be increasing! Not decreasing!. This is particularly with respect to older workers who find it more difficult to find employment. I wonder why these numbers have decreased.

Mitchell H. Rubinstein

50 Great Blogs For And By Law Professors

Online Universities published a list of 50 great blogs by and for Law Professors and we made the cut! The top 23 are as follows:

Legal News

Follow the latest legal cases by visiting these news blogs.

1. Law Blog: The WSJ law blog is updated multiple times a day and follows the big legal cases of the moment and business law.
2. Above the Law: Above the Law is part news, part legal tabloid, and is a great resource for keeping up with behind-the-scenes dirt from law schools, top firms, and major cases.
3. The Volokh Conspiracy: This group blog is mostly written by law professors and focuses on law theory and research, law professors and law school, and top (or just weird) cases.
4. Blawg Review: Get an aggregated list of the week’s best law blog posts here.
5. Robert Ambrogi’s LawSites: Robert Ambrogi is a great resource if you want to find new legal resource websites.
6. The Shark: California law school students keep up with news, salaries and more.
7. Paper Chase: JURIST’s legal news blog is all about "serious law" from "primary sources."
8. Legal Counsel Corner: This legal commentary blog covers the latest headlines in business law, bail bonds, bankruptcy, class action lawsuits, family law and more.
9. ABA Blogs: Find law blogs in every single niche, plus tickers of the featured and most popular blogs and posts.
10. Adjunct Law Prof Blog: Mitchell H. Rubinstein is an adjunct professor at New York Law School and blogs about interesting cases, from domestic violence to health care. He also posts about New York law and law school issues.
11. American Constitution Society: The ACS tracks top law cases and news.

Theory and Philosophy

Here you’ll find discussion and research devoted to legal theory and philosophy.

12. Dorf on Theory: Cornell law professor Michael Dorf, with his lawyer and professor friends, muses on various law topics here.
13. Kenneth Anderson’s Law of War and Just War Theory Blog: This law professor from American University blogs about international laws of war.
14. Ernie the Attorney: Ernie has been blogging since 2002 and examines how the legal system responds to change.
15. Leiter Reports: Law professors will appreciate this philosophy blog that comments on academia, intellectual property and legal philosophy.
16. Florida Student Philosophy Blog: Florida undergrads, grad students and faculty discuss logic, ethics, the philosophy of law and plenty of other topics here.
17. Engage: Conversations in Philosophy: Follow this blog for intriguing discussions and questions about social responsibility, public policy, civil disobedience and more.
18. Feminist Legal Theory: Learn all about feminist legal theory from this blog, published by the UC Davis School of Law.

Business Law

Business law professors will find plenty of resources and commentary on these blogs.

19. M&A Law Prof: Read about mergers and acquisitions and major cases within the industry from Brian JM Quinn and Michael A. Woronoff.
20. May It Please the Court: J. Craig Williams blogs about legal news and mostly business law subjects.
21. The Conglomerate: This blog follows and analyzes top business law cases and economic policy.
22. The Becker-Posner Blog: This prominent blog covers practically everything, but it’s a great resource for business and economics law.
23. The Harvard Law School Forum on Corporate Governance and Financial Regulation: HLS faculty and fellows share commentary about business law, banking, and more.

Mitchell H. Rubinstein

State AG trying to intervene in autism dog case

AG trying to intervene in autism dog case is an interesting article from the Oct. 6, 2009 Mt. Vernon Register. This high profile lawsuit seeks an injunction from the court permitting a child with autism to bring his service dog to school. A lower court issued a preliminary injunction permitting the child to bring the dog and it is that ruling which is on appeal. The article describes the lower court decision as follows:

“The district acknowledges that the school code does allow for a ‘service dog’ at the school,” a statement released by the school district states. “But exercising this right requires meeting certain legal and educational standards that the district does not believe have been met in this case. The district maintains its commitment to providing all students of Columbia Community Unit School District No. 4 with a free appropriate public education. ... While the district recognizes the student’s desire to have his dog at school, it must weigh that desire with the rights of other district children to a safe and healthy learning environment. It is not a simple matter of moving students from one room to another or even one building to another. The district has obligations under both state and federal laws which govern the education of children with disabilities. Those laws contain certain procedural safeguards which must be observed before educational services can be changed.”

Mitchell H. Rubinstein

New Hampshire’s Pledge of Allegiance statute does not violate constitution’s religious clauses

Freedom from Religion Foundation v. Hanover Sch. Dist., ___F.Supp. 2d___ (D. N.H. Sept. 30, 2009), is an interesting case that we are likely to hear more about.

A federal district court ruled that a New Hamp. statute requiring the recitation of the Pledge of Allegiance in schools does not violate the U.S. Constitution’s Establishment or Free Exercise of Religion Clauses. It also rejected claims that the state’s pledge law violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses. In addition, it summarily dismissed the claim that the pledge law was void as against public policy on the ground of failure to state a claim upon which relief could be granted. Lastly, the district court dismissed all state law claims without prejudice, allowing them to be refiled in state court.

The parents of three public school students objected to their children being subjected to recitation of the Pledge of Allegiance in school. Specifically, the parents, who identify themselves and their children as atheist or agnostic, contended the pledge offended their and their children’s rights under the First Amendment because of the inclusion of the phrase “under God” in the pledge.

The statute in question had been passed in the aftermath of September 11 attacks. The statute made student participation voluntary by providing an opt-out clause. While conceding that the children were not compelled to recite the pledge, the parents sought assurances from the principals at their children’s schools that the pledge would not be recited in their children’s classes. However, no such assurances were given.  The suit implicated both state and federal pledge laws.

The district court applied the three-prong Establishment Clause test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971) in upholding the statute. Regarding the secular purpose prong, it concluded that both the express purpose of the New Hampshire statute (continuing “the policy of teaching [the] country’s history to the elementary and secondary pupils of [the] state”) and the legislative history of the statute demonstrated a secular purpose. It pointed out that the record of the legislative discussions made clear that the law was enacted for patriotic, not religious, reasons. It also noted that the fact that when the pledge recitation law was revised by the legislature it was separated from the provision allowing recitation of the “Lord’s prayer” in schools. Turning to the primary effect prong, the district court stressed that the government may not coerce an individual to support or participate in religion or its exercise. However, it found no coercive effect was present under New Hampshire’s law. It distinguished it from the situation in Lee v. Weisman, 505 U.S. 577 (1992), where the element of coercion was present on two grounds. First, participation in the recitation of the pledge is voluntary, providing an opt-out for those wishing not to participate. Second, and as the district court viewed it more importantly, the pledge is not a prayer, as was the case in Lee. The district court disposed of the excessive entanglement prong, finding the defendants prevailed because the parents had not argued that the state pledge law encourages government entanglement with religion.

The district court discussed the different approaches taken toward the phrase under god by the Fourth, Seventh, and Ninth Circuits. Although the Ninth Circuit’s viewed the phrase as a “profession of a religious belief, namely a belief in monotheism,” thus rendering the recitation of the pledge in school unconstitutional, the district court agreed with the Fourth and Seventh Circuit view that the phrase reflected nothing more than a ceremonial deism rather than the intent to impose any theistic doctrine. It pointed out that when the U.S. Congress added the phrase in 1954 its actual motives where most likely political, having “more to do with currying favor with the electorate than with an Almighty.”

It rejected the free exercise claims based on the argument that the children’s exposure alone to recitation of pledge infringed on their constitutional right to freely believe or practice their atheism or agnosticism.

Addressing the due process and equal protection claims, the district court concluded, that because the pledge statute did not “create rules for agnostics and atheists different from rules applicable to monotheists or polytheists, and because there are no allegations that the Doe children’s teachers acted with a discriminatory intent, the equal protection was not sustainable. Regarding the parents’ Fourteenth Amendment claim that the law violated their right to education their children in accordance with their views of  religion, the district court, viewed the due process claim akin to the free exercise claim. It, therefore, concluded that “dismissal of [the parents’] free-exercise claim compels dismissal of their due-process/parental-rights claim.”

Look for an appeal to be filed.

Mitchell H. Rubinstein

Discharge To Prefer Your Paramour

Alaska Employment Law Blog previewed an interesting case pending in the 9th Circuit. In the court below, a  a federal jury returned a $200,000 verdict for a woman, Martha Johnson, who claimed that her supervisor had fired her in order to hire his hoped-for paramour.   The jury relied on the covenant of good faith and fair dealing implied in all Alaska employment contracts.

Here are the following briefs:

Fred Meyer Opening Brief
Johnson Opening Brief
Fred Meyer Reply Brief
Johnson Reply Brief

Mitchell H. Rubinstein

: Dan Rather's breach of contract, tort claims against CBS dismissed

Rather v CBS Corp, __Misc. 3d___(NY Co. September 29, 2009), is an interesting employment case involving famed newman Dan Rather. Approximatgely five years ago, CBS anchor Dan Rather was relieved of his duties after he aired a report questioning President George Bush's record of service in the Texas Air National Guard. Rather filed a breach of contract suit as well as various tort claims, including a claim for lost business opportunities due to CBS's failure to release him to seek other employment. A New York state lower court dismissed all of Rather's claims. "Rather's claim for lost business opportunities is insufficiently supported," the court wrote, concluding Rather effectively undermined his own career by reflecting a bias against President Bush. "Since, according to Rather's own allegations, an immediate result of the September 8, 2004 broadcast was criticism that he was biased against Bush it would be speculative to conclude that any action taken by CBS would have alone substantially affected his market value at that time."

Chicago alderman violated NLRA; city of Chicago vicariously liable

520 S. Michigan Ave v Fioretti, ___F.Supp. 2d___(N.D. Ill September 28, 2009) is an important labor case.Municipalities and elected officials frequently inject themselves into local labor disputes. In this instance, the City of Chicago was vicariously responsible for a city alderman who refused to issue a permit to operate a sidewalk café to a hotel that had been embroiled in a labor dispute for several years. Surprise surprise tht same union helped him get elected. The record showed that the alderman made statements both in public and in meetings with union officials suggesting his approval of the permit hinged on the hotel's settling the labor dispute.

The alderman kept the union president apprised about the status of the permit application and the court noted the alderman was very concerned about the union's reaction to his decisions regarding the application. The record was devoid of his reasons, however, for opposing the permit. Based on these facts, the court found the main factor considered by the alderman in deciding against the permit was the union's desire to end the strike. The alderman thus had impermissibly inserted himself into the collective bargaining process in violation of the Act.

Mitchell H. Rubinstein

Book Reivew Highlight Filipp and Castagnera Employment Law Answer Book (7th ed. 2010)

Aspen just published Mark R. Filipp and James Ottavio Castagnera, Employment Law Answer Book (7th ed. 2010) and all I can say is Wow! For years, most labor and employment lawyers have  purchased personal copies of The Developing Labor Law and Employment Discrimination Law by BNA. This is a third must have book.

Why? The answer is simple. It covers everything (well, just about everything) and that is what makes it so unique. The book is comprised of 15 Chapters and is written in Question and Answer format. It is full of helpful case cites, statute and regulatory cites. The book also has a wonderful index in the back. The book appears designed to provide lawyers and labor and employment professionals with a scholarly summary of the law with helpful cites. This can save a significant amount of research time.

This is not the book to use if your looking for the latest summary judgment decisions, but it the book to use if your looking to find a quick answer to a basic employment law question such as whether the FMLA requires paid leave or what the definition of a disability is under the ADA as amended.

The book also covers many topics which are usually not found in one book. For example, the FLSA, COBRA, HIPPA, the ADAA, At Will Employment and Exceptions, Negligent Hiring, Tax Issues, Personnel Files, Employment Discrimination, Employee Privacy, Surveillance, Safety, Copyright, Trade Secrets, Whistleblower statutes,Smoking in Workplace, AIDS, Ergonomics, ERISA, Workers Comp, Unemployment, Public Employment, Collective Bargaining, Labor Relations, Arbitration, Immigration, International Employment Law, ADR are all covered under one roof.

The book is available here from the publisher for $275.00 and its worth every penny.

Note, Jim Castagnera is a particularly good writer. We reviewed one of his prior books,Al-Qaeda Goes to College in Feb. 2009. If you have not seen that book, you can find a link and Adjunct Law Prof Blog's review here. If you check that book out, you will not be disappointed.

Mitchell H. Rubinstein

Swine Flu and Workplace Clinics

The New York Times reported on Nov. 6, 2009 that an Obama Administration official stated that there was nothing wrong with having the Swine Flu shot distributed through workplace clinics. That article is available here. As the article states:

The federal health official in charge of immunization and respiratory diseases said Friday that swine flu vaccine should be distributed through many outlets, including workplace clinics, to get it to high-risk people as quickly and efficiently as possible.

I could not disagree more. What if an employer nurse administers the shot wrong or gives it to someone who should not have taken it. Is the company open to law suits? Does the nurse have the duty to review the employees health history. Would such a clinic put undue pressure on employees to take the shot. Is the shot administered in a discriminatory manner?

Sure employers can administer the flu shot. However, they should think about these issues first. Any management labor lawyer readers want to comment??

Mitchell H. Rubinstein

Unemployment Hits 10.2%

The New York Times reported on November 6, 2009 that Unemployment hit 10.2%. That is the highest level in 26 years. The full article is available here. The article states:

In the six decades since the government began compiling such data, the highest level of unemployment came at the end of 1982, when it hit 10.8 percent. Despite the widespread assumption that the recession has already ended, and even as the economy has resumed growing, the government’s latest snapshot of the labor market released Friday testified to the uncomfortable truth that expansion had yet to translate into jobs.

“The guy on the street is going to ask, ‘What recovery?’ ” said Stuart Hoffman, chief economist at the PNC Financial Services Group in Pittsburgh. “The job market is still in reverse.”

The sharp rise in unemployment — which climbed from 9.8 percent in September, as the nation lost another 190,000 net jobs — intensified pressure on the Obama administration to show results from the $787 billion package of spending measures unleashed early this year to spur the economy.

Mitchell H. Rubinstein

2ndCir: Oral promise not enough to alter terms of ERISA plan

Ladouceur v Credit Lyonnais, ___F.3d____(2d Cir. September 30, 2009), is an important ERISA decision to be aware of. The 2d held that an alleged oral representation made to employees about how their pension benefits would be calculated after a company merger was not enough on which to base ERISA claim for breach of fiduciary duty. Oral promises cannot vary the terms of an ERISA plan, the court noted. This principle "applies with equal force to alleged breaches of fiduciary duty when the alleged breach is an oral representation that purports to change an ERISA benefit plan,"  "[W]e see no reason to give the statement effect by re-characterizing it as a breach of fiduciary duty."

Mitchell H. Rubinstein

Defamation Suit based Upon Online Criticism Is Protected Opinon

In Intellect Art Multimedia Inc. v. Milewski, 117024/08 (N.Y. Co. 2009), the court dismissed a defamation suit brought against a former student for an online posting which was highly critical of the school. A N.Y. Law Journal article discussing this case explains that protected opinion was involves as follows:

She characterized Mr. Milewski as a "disgruntled consumer" whose statements "reflect his personal opinion based upon his personal dealing with plaintiff."

The judge centered her analysis on the three-part test for distinguishing between fact and opinion, laid out in Brian v. Richardson, 87 NY2d 46 (1995).

In that case, the Court of Appeals ruled that factors to be considered include whether the language used is precise or ambiguous, if the statement at issue could be "objectively" true or false, and the full context of the entire communication or the "broader social context" surrounding the statement.

Here, the site presented the posts as a "personal statement" of facts based on Mr. Milewski's "experiences in dealing with plaintiff," Justice Gische wrote, holding that as such they were "susceptible to ambiguous meanings."

A full copy of the article is available here (registration required).

Mitchell H. Rubinstein