Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, September 4, 2015

Carlson: A Child's Right to a Family

Richard Carlson (South Texas) has posted, "A Child's Right to a Family versus a State's Right to Institutionalize the Child," on SSRN.  Carlson's article explores tension in the United Nations Convention on the Rights of the Child between institutionalization and family placement as options for children without parents or guardians.  Carlson acknowledges the Convention adopts a "child's best interest" standard toward placement and embraces the benefits of raising children in a "family environment."  However, Carlson argues that the Convention's grant of broad discretion to states to institutionalize children, "cannot be squared with a 'child’s best interests,' the 'family environment' ideal or modern child development theory.

Carlson's abstract reads:

Convention on the Rights of the Child (CRC), declares that a child has the right to be raised in a "family environment." Nevertheless, the CRC grants states the discretion to institutionalize children who are without functioning families. States have this discretion because the CRC does not require states to arrange, facilitate, or even allow for child placement in a permanent, substitute family. In this article, I describe this contradiction in international law -- a child's right a family environment versus the state's discretion to institutionalize the child -- and I explore the possible reasons for the contradiction. A chief reason for the contradiction is anxiety about intercountry adoption. I propose some ways to resolve the contradiction and to pave the way for the creation of a true right to a family, including by placement in a permanent substitute family.

Craig Estlinbaum

September 4, 2015 in Family Law, Law Professors, Law Review Articles | Permalink | Comments (0)

Thursday, September 3, 2015

Sunstein: In Praise of Law Reviews

Cass Sunstein (Harvard) has posted his essay, "In Praise of Law Reviews (And Jargon-Filled, Academic Writing)," on SSRN.  The abstract reads:

Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”

Sunstein's essay is forthcoming in the Michigan Law Review.

Craig Estlinbaum

September 3, 2015 in Law Professors, Law Review Articles | Permalink | Comments (0)

Thursday, August 20, 2015

"The Luckiest Court in the Universe"

Daniel Nazer at techdirt.com reports that if patent litigation cases were evenly distributed among the 94 federal district courts in the United States, each court would have 33 such cases filed so far this year.  As it happens, the Eastern District of Texas has seen 1,387 patent cases filed this year in that particular jurisdiction.

How did the Eastern District become the mecca for patent litigation filings?  Nazer's article, "Why Patent Trolls Love East Texas... And Why Congress Needs To Fix It," tells that story.

Craig Estlinbaum

August 20, 2015 in Federal Law, Technology | Permalink | Comments (0)

Wednesday, August 19, 2015

Gallup Poll Indicates Support For Unions Are Increasing

On August 17, 2015, Gallup released the following:

Americans' approval of labor unions has jumped five percentage points to 58% over the past year, and is now at its highest point since 2008, when 59% approved. In the interim, the image of organized labor had suffered, sinking to an all-time low of 48% in 2009.

Trend: Do you approve or disapprove of labor unions?

Gallup first asked Americans about organized labor in 1936, a year after Congress legalized private-sector unions and collective bargaining. At that time, 72% of Americans approved of unions. Support remained high into the 1960s, but then dipped through the 1970s until it reached 55% in 1979. It has since varied, reaching as high as 66% in 1999 and as low as the 48% in 2009.

Mitchell H. Rubinstein

 

August 19, 2015 in Unions | Permalink | Comments (0)

Goldberg: Free Speech Consequentialism

Erica Goldberg (Harvard: Climenko Fellow) has posted "Free Speech Consequentialism" on SSRN.  The abstract reads:

Balancing the harms and benefits of speech — what I call “free speech consequentialism” — is pervasive and seemingly unavoidable. Under current doctrine, courts determine if speech can be regulated using various forms of free speech consequentialism, such as weighing whether a particular kind of speech causes harms that outweigh its benefits, or asking whether the government has especially strong reasons for regulating particular kinds of speech. Recent scholarship has increasingly argued for more free speech consequentialism. Scholars maintain that free speech jurisprudence does not properly account for the harms caused by speech, and that it should allow for more regulation of harmful kinds of speech. This article evaluates the various ways courts already employ free speech consequentialism. It then establishes and defends a principled basis for determining when speech’s harms greatly outweigh its virtues. I argue that courts should engage in free speech consequentialism sparingly, and should constrain themselves to considering only the harms caused by speech that can be analogized to harms caused by conduct. In this article, I develop a framework that recognizes the need to incorporate free speech consequentialism, and to constrain it, at various stages of First Amendment analysis, in connection with both tort and criminal law. I then apply this framework to timely and difficult speech issues, including campus hate speech, revenge porn, trigger warnings, and government speech — with the aim of rehabilitating core values of our First Amendment doctrine and practice.

Ms. Goldberg's article is forthcoming in Volume 116, Columbia Law Review.

Craig Estlinbaum

 

August 19, 2015 in Constitutional Law, First Amendment, Law Review Articles | Permalink | Comments (0)

NLRB Declines To Assert Jurisdiction Over Northwestern Football Players

Nlrbseal

In a widely watched decision, the NLRB ruled on August 17, 2015 that it would not assert jurisdiction in an election petition filed by Northwestern student football players. Northwestern University, 362 NLRB No. 167 (Aug. 17, 2015).

The NLRB Regional Director found, in a March 26, 2014 decision, that grant-in-aid scholarship players were employees under Section 2(3) of the National Labor Relations Act (NLRA), and directed the holding on an election, which took place on April 25, 2014.

In this week's decision, the NLRB Board concluded that even if the at-issue scholarship players were employees under the NLRA, it would not effectuate the policies of that law to assert jurisdiction in what the NLRB described as a novel and unique case involving college football players:

                        In declining jurisdiction, the NLRB Board noted that it has never heard a prior case                         involving college athletes or a representation petition seeking a unit of a single college                         team or a group of college teams.  In addition, the NCAA's uniform rules, regulations                         and standards regarding collegiate sports results in "a substantial degree of [NCAA]                         control over the operations of individual member teams, including many of the terms                         and conditions under which the scholarship players (as well as walk-on players) practice                         and play the game."  

In its August 17, 2015 decision, however, the NLRB Board distinguished the college football players from graduate student assistants in Brown University and New York University, 332 NLRB 1205 (2000) because the at-issue players are undergraduates who receive sports scholarships and their extracurricular football activities are generally unrelated to their studies.  Lastly, it expressly chose not to determine whether the at-issue players were employees under the NLRA.

The decision is significant for a number of reasons. First, it is extremely rare for the NLRB to decline jurisdiction on the basis of public policy. Indeed in a footnote the Board only cited to one other decision where it declined jurisdiction. Second, this case was 5-0. I do not recall any recent 5-0 decisions over controversial issues and this issue is certainly controversial and generated a lot of media attention. Query, whether this decision would have any impact over whether graduate students (aka Brown University) or medical interns ( aka Boston Medical) are students under the NLRA.

Law review commentary on this important topic is certainly welcome.

Mitchell H. Rubinstein

August 19, 2015 in NLRB | Permalink | Comments (0)

Monday, August 10, 2015

Is it too cold at work? Maybe its because it is a man's world

Chilly at Work, is an interesting August 3, 2015 article from the New York Times. Ever notice how woman always seem cold at work? Well, as the article points out, this may be because air conditioning systems were designed for men. 

Professor Charles Sullivan (Seton Hall Law School) and an editor over at Workplace Prof Blog, an expert in employment discrimination, raises the question whether such a claim could be actionable under Title VII under a disparate impact type theory. He appears very skeptical. 

It seems to me that maybe, just maybe if employees are disciplined or not given certain office assignments because of the temp in the office, maybe there might be something to think about. 

Seems like a perfect law review article.

Mitchell H. Rubinstein

August 10, 2015 in Law Professors, Law Review Ideas, Legal Humor, Misc., Legal, Misc., Non-Legal | Permalink | Comments (0)

Friday, July 24, 2015

Law Professor Survey For Law Review Article

Professor Cynthia Bond writes to request that law professors answer a survey about popular culture in the law school classroom. A cover letter from Professor Bond and a link to her survey are below.

Mitchell H. Rubinstein

___________

Greetings Law Teacher Colleagues:

 I am working on an article this summer on uses of popular culture in the law school classroom.  I am defining popularculture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).

 To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area.  If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:

 https://www.surveymonkey.com/s/QH3GBZK

 Thanks in advance for your time and have a wonderful rest of summer!

 Cynthia Bond

The John Marshall Law School

Chicago, IL

 

July 24, 2015 in Law Professors, Law Review Articles | Permalink | Comments (1)

Thursday, July 23, 2015

Best Small Cities For Recent Law School Graduates

Good Call recently ranked the top 100 best small cities for recent law school graduates. The top 10 are reproduced below. Their web site is full of helpful information and is available here.

Mitchell H. Rubinstein

Hat Tip: Carrie Wiley

 

I. The Data

Below are the top 100 small cities for law graduates, out of a total list of 539:

RankCity (MSA)GoodCall ScorePopulationAverage Lawyer SalaryHousing Affordability IndexAmenities per 1,000 Housing UnitsEmployment Attractiveness Rank
1 Washington NC 487.25 47,585 $130,920 7.91% 2.37 20
2 Carlsbad-Artesia NM 474.9 56,395 $119,550 7.56% 2.91 41
3 Thomaston GA 463.75 26,256 $102,900 8.72% 8.38 57
4 Roswell NM 461.85 65,878 $119,550 7.09% 1.93 43
5 Laconia NH 451.4 60,305 $117,850 12.36% 9.39 10
6 Shelby NC 449.55 97,076 $105,680 8.72% 3.17 46
7 Barre VT 446.8 58,998 $106,700 13.00% 15.20 4
8 Canton IL 442.85 36,007 $99,160 9.18% 2.72 18
9 Fairbanks AK 438.2 99,357 $112,930 13.82% 6.31 6
10 Cheyenne WY 437.25 96,389 $109,540 11.01% 1.48 2
 

July 23, 2015 in Law Students, Lawyer Employment | Permalink | Comments (0)

Best Large Cities For Recent Lawyers

Good Call recently ranked the best large metro areas for new law school graduates. The top 10 are copied below, but their web site ranked the top 100 and provides additional information, here.

Hat Tip: Carrie Wiley

Mitchell H. Rubinstein

I. The Data

RankMetro AreaGoodCall ScorePopulationAverage Lawyer SalaryHousing Affordability IndexAmenities per 1,000 Housing UnitsEmployment Attractiveness Rank
1 New York-Newark-Jersey City, NY-NJ-PA 279.10 20,092,883 $148,140 10.04% 2.74 5.00
2 Bridgeport-Stamford-Norwalk, CT 278.30 945,438 $141,010 10.97% 5.21 22.00
3 Pittsburgh, PA 277.45 2,355,968 $122,220 7.48% 3.08 29.00
4 Hartford-West Hartford-East Hartford, CT 271.65 1,214,295 $120,900 10.00% 3.01 14.00
5 Nashville-Davidson–Murfreesboro–Franklin, TN 264.95 1,792,649 $107,440 9.85% 4.44 1.00
6 Des Moines-West Des Moines, IA 260.15 611,549 $109,650 9.09% 3.12 46.00
7 Philadelphia-Camden-Wilmington, PA-NJ-DE-MD 259.25 6,051,170 $126,100 10.00% 2.65 62.00
8 St. Cloud, MN 258.35 192,418 $107,070 8.56% 5.36 19.00
9 Houston-The Woodlands-Sugar Land, TX 256.40 6,490,180 $150,720 7.78% 1.52 13.00
10 San Francisco-Oakland-Hayward, CA 255.90 4,594,060 $150,290 11.04% 2.16 4.00

July 23, 2015 in Law Students, Lawyer Employment | Permalink | Comments (1)

Monday, July 20, 2015

Dot Law'ers Are Coming -- in October

The internet is about to get a whole lot easier to navigate-well, maybe. Come October, their are going to be able to be many more internet domains.  Of most relevance to lawyers is the ".law address." 

An article about this from Findlaw is available here. The article states:    

Soon, that number will include .law, for those working in the .legal industry. Minds + Machines, an Internet registration company, is the exclusive licenser of .law domains, along with .london, .beer, and plenty more. Beginning July 30th, trademark holders will be able to register .law domains through Minds + Machines, according to the ABA Journal. 

Those names will then be available to buy in early October. To reserve a domain name, lawyers and legal professionals should file a registration with the company. Trademark holders have priority, but if they have not expressed interest once the domains are available for sale, YourFirm.law could be bought up by a third party.

Mitchell H. Rubinstein

July 20, 2015 in Announcements, Law Firms, Misc., Legal, Misc., Non-Legal | Permalink | Comments (0)

Thursday, July 16, 2015

DOL Issues Administrator Interpretation on Employee Status

On July 15, 2015, Wage and Hour Administrator David Weil issued Administrator Interpretation No. 2015-1 entitled "The Application of the Fair Labor Standard's Act's "Suffer or Permit" Standard in the Identification of Employees Who Are Misclassified as Independent Contractors",  Download DOL

There are no surprises here. The DOL simply summarized the applicable case law that applies the multiple factor economic reality test as opposed to the common law right to control test to determine employee status:

Ultimately, the goal is not simply to tally which factors are met,  but to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor). The factors are a guide to make this ultimate determination of economic dependence or independence.... The Supreme Court "has consistently construed the Act 'liberally to apply to the furthest reaches consistent with congressional direction,' recognizing that broad coverage is essential to accomplish the [Act's] goal. . . ."

The DOL makes no mention of the fact that there are at least two other tests utilized in other employment employment statutes (a hybrid economic reality test and common law right to control test; statutory purpose test) or any of the scholarly literature concerning employee status. 

While the DOL was focusing on the FLSA and on some level it is understandable why they simply focused on the economic reality test, I believe that some mention of these other tests was warranted because employers should not assume that simply because an individual is an employee under the FLSA does not mean that he or she is going to be an employee under Title VII, where for example, a hybrid test is often utilized.

Several years ago, I wrote a law review article which addressed many of these issues. Employees, Employers and Quasi Employees. 

Mitchell H. Rubinstein

July 16, 2015 in Employment Law, Federal Law, FMLA, Labor Law | Permalink | Comments (0)

Monday, July 13, 2015

Shape up, or you are going to lose your job" and "are you ok? Not Harassment

I bring  Hernandez v. Weil Cornell Medical Center, ___Misc. 3d___ (Bronx Co. July 6, 2015) to your attention because the court held that comments such as "shape up, or you are going to lose your job" and "are you ok? do not state a cause of action for intentional infliction of emotional distress or disability discrimination under New York State and City law.  The court reasoned:

The defendant has sufficiently demonstrated that the plaintiff did not plead any allegations in her complaint that would support her claims of discriminatory working conditions and hostile work environment. Statements by the defendant's employee such as, "shape up, or you are going to lose your job" and "are you ok?" do not amount to conduct that is extreme or outrageous. See Witchard v. Montefiore Medical Center, 103 AD3d 596 (1st Dept. 2013). The Appellate Division has held that an employer's statements that it would fire a disabled employee were not so pervasive as to establish a hostile work environment in violation of New York State Human Rights law.Witchard v. Montefiore Medical Center, (supra). The Appellate Division went on to affirm the employer's motion for summary judgment dismissing the complaint, in part, because the complaint lacked sufficient allegations to prove that the work environment was hostile.

Likewise, the act of questioning an employee's work cannot be fairly characterized as harassment or extreme behavior. Without more evidence, the statements and behavior of Weill Cornell's employees cannot be seen as extreme. Ferrer v. New York State Div. of Human Rights, 82 AD3d 431 (1st Dept. 2011) (finding that the specific conduct alleged by the petitioner in the complaint, if true, is legally insufficient to establish that the workplace was "permeated with discriminatory intimidation, ridicule and insult [and] isolated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment").

Mitchell H. Rubinstein

July 13, 2015 in Discrimination Law, New York Law | Permalink | Comments (0)

Friday, July 10, 2015

Federal Judge Discontinues Blog

Steve Klepper at Maryland Appellate Blog reports this week that Senior U.S. District Judge Richard Kopf has discontinued his blog, Hercules and the Umpire.  Klepper's report highlights in his report the controversies that have followed Judge Kopf and his blog in recent times.

Craig Estlinbaum

July 10, 2015 in Blogs, Legal, Ethics, Judges | Permalink | Comments (0)

Monday, July 6, 2015

New York Adopts Uniform Bar Examination

In case you missed it (I did), New York recently announced that it will utilize a uniform bar examination that is in use in 15 states. A New York Times article about this change is available here

I am not so sure that this is a good idea. One of the flaws  in legal education today is that often times courses are just generalist type classes. Students may be reading cases from California in one lesson and reading New York cases in another. As a result, students graduate without having any grasp of the law in any particular state. Now, I recognize that there are exceptions-particularly with federal law, but even then the focus is rarely on the law of the circuit. 

This is just rehashing the old debate of national vs. regional law schools. Most students want to go to "national law schools." I also understand that many students may not practice in the state where their law school is located. But, I never believed that this makes much sense.  

There is no perfect solution. My view is that law schools should concentrate on the state law where most of their graduates practice. Therefore, it appears to follow that a bar examination based upon state law,  at least in part, makes sense.

Mitchell H. Rubinstein

July 6, 2015 in Law Schools, Law Schools, News, Law Students | Permalink | Comments (0)

Friday, July 3, 2015

New York City’s Office of Administrative Trials and Hearings is seeking individuals to serve on its Contract Dispute Resolution Board panels

New York City’s  Office of Administrative Trials and Hearings [OATH} is accepting applications from qualified persons who would like to serve on Contract Dispute Resolution Board (CDRB) panels.
 
Each CDRB panel consists of an OATH ALJ, as chair, a representative of the Mayor’s Office of Contract Services, and a third member selected from a pre-qualified roster of individuals, established and administered by OATH, who has appropriate expertise and is unaffiliated with the City.
 
 
Mitchell H .Rubinstein

July 3, 2015 in Lawyer Employment, Lawyers | Permalink | Comments (1)

Thursday, July 2, 2015

Captains Are Not Supervisors

The Board recently held in Cook Inlet Tug & Barge, Inc., 362 NLRB No. 111 (2015),  that captains of tugboats are not supervisors.  Despite arguments by the company that the captains are supervisors because they exercise assignment authority on the boat, the Board found that any instructions given by the captains were not the result of “independent judgment” and therefore could not be an “assignment in the statutory sense.”  Instead, the alleged assignments by the captains were “ad hoc instructions,” such as closing a hatch, that naturally arise out of having one deckhand accompany a captain on a boat.

As you could expect, Member Miscimarra dissented, asserting that the captains were “ultimately accountable for everything that happens on [the boats].”

 This case may have implications in other industries.

Mitchell H. Rubinstein

 

 

July 2, 2015 in NLRB | Permalink | Comments (1)

Saturday, June 27, 2015

New Edition of Randall & Randall The Discipline Book

The Randalls just updated their treatise entitled  The Discipline Book.  The 2015 edition is available in both a softcover and an e-book format.

The URL is http://booklocker.com/books/5215.html

Both versions are now 458 pages to accommodate the softcover book format. The authors substituted summaries for the "full text" of the decisions set out in the earlier editions and added new case material. There are "links" to full text of in the e-book version and "text" URLs in the softcover version.

This book remains "the" treatise on public sector employee discipline in New York State and I could not imagine any employer or union side practice without it. The book outlines the Civil Service Law, Section 75 cases, Education Law 3020-a cases as well as a whole host of other cases. It is basically an A-Z book on discipline.

This years edition is quite easy to utilize in that the table of contents is updated. Additionally information, including instructions about purchasing it, can be found in the link above.

Mitchell H. Rubinstein 

June 27, 2015 in Book Reviews, Books | Permalink | Comments (0)

Wednesday, May 27, 2015

Labor Art Exhibition

St. Louis labor lawyer Bruce Feldacker is a collector of labor art. His collection is described here.  From May 24, 2014 through August 2, 2015, his collection will be on display at the Cedarhurst Museum in Mt. Vernon, Illinois. Details are available by clicking  Download Press Release Labor Art Exhibit-1_1

If your in the area this summer, for those interested in labor history, this looks like a wonderful thing to do.

Mitchell H. Rubinstein

 

May 27, 2015 in Labor Law, Misc., Non-Legal | Permalink | Comments (0)

Wednesday, May 13, 2015

Goldman and Reyes: Competitive Keyword Advertising and Legal Ethics

I am fascinated how new technology challenges existing legal and judicial ethics rules and canons.  An article forthcoming in University of Illinois Law Review, written by Eric Goldman and Angel Reyes, III titled, "Regulation of Lawyers’ Use of Competitive Keyword Advertising" addresses just such an issue.  Here is the abstract:

Lawyers have enthusiastically embraced search engine advertisements triggered by consumers’ keywords, but the legal community remains sharply divided about the propriety of buying keyword ads triggered by the names of rival lawyers or law firms (“competitive keyword advertising”). This Essay surveys the regulation of competitive keyword advertising by lawyers and concludes that such practices are both beneficial for consumers and legitimate under existing U.S. law - except in North Carolina, which adopted an anachronistic and regressive ethics opinion that should be reconsidered.

The article is available at SSRN here.  Josh King, blogging at Socially Awkward, describes competitive keyword advertising this way: "1.  “Buy” the name of your competitor from Google.; 2.  When potential clients search Google for that competitor, your ad appears.  3.  Profit!!"  That's easier to understand, I guess, though I imagine there must be something more between steps 2 and 3.

Eric Goldman has written a shorter essay about legal ethics and competitive keyword  advertising in Forbes.  Florida has issued an ethics opinion approving the practice -- North Carolina contra.

Hat Tip to Carolyn Elfant at My Shingle, who offers her own take on the practice.

Craig Estlinbaum

May 13, 2015 in Ethics, Law Review Articles, Technology | Permalink | Comments (0)