Law Commons^™

The Curious Case Of Justice Neil Gorsuch, Justin Burnworth

Pace Law Review

Justice Gorsuch has a propensity for unexpected decisions. His opinions in Bostock v. Clayton County, United States v. Vaello Madero, and McGirt v. Oklahoma confounded the legal community at large. Some argue that his Western upbringing played a role. Others argue that his time clerking for Justice Kennedy primed him for unpredictable decisions. These explanations do not get at the core of Justice Gorsuch’s legal reasoning. This article dives into the depths of these opinions to extract his “Enduring” theories of law. I argue that legal scholarship has incorrectly viewed these three decisions as isolated incidents when they are best …

Unpuzzling Complete Preemption: Beneficial National Bank V. Anderson After Two Decades In The Circuit Courts, Anthony Salzetta

Pace Law Review

Beneficial National Bank v. Anderson, 539 U.S. 1 (2003), established the modern complete preemption doctrine—a method of finding removal jurisdiction by way of federal defense. The decision was met immediately with a great degree of confusion and critique by scholars concerned with the doctrine’s theoretical foundation (or lack thereof) and the potential disarray in its prospective execution by lower courts.

This twenty-year retrospective tackles whether clarity has emerged in the lower courts. By analyzing all 164 circuit court cases citing to Beneficial National Bank, I find minimal moments of disagreement between circuits as to application of the doctrine. Courts …

Janus, Union Member Speech, And The Public Employee Speech Doctrine, M. Linton Wright

Pace Law Review

In Janus v. American Federation of State, County, and Municipal Employees (“AFSCME”), the Supreme Court held that public sector unions can no longer collect fees from nonmembers to fund the costs of representing them in collective bargaining and grievance proceedings. The Court determined that virtually all union speech is political speech and that collection of these fees is impermissible compelled speech under the First Amendment. However, not everything in Janus harms public union interests. The Janus Court’s discussion of Garcetti v. Cabellos and Connick v. Myers actually helps protect union member speech in the context of First Amendment retaliation cases. …

Empiricism And The Misdemeanor Courts: Promoting Wider, Deeper, And Interdisciplinary Study, Alisa Smith

Pace Law Review

Since 1956, there have been three waves of scholarly attention on the misdemeanor courts. Despite this attention, misdemeanor courts remain understudied and overlooked. The object of this paper is to summarize the empirical research conducted over the last sixty years and identify the scholarly work that should be undertaken on the processing of misdemeanor offenders in our courts. Buoyed by the current interest in studying the misdemeanor courts, scholars should widen and deepen their study by replicating the work of others in a variety of jurisdictions, observing court proceedings, interviewing defendants and the courtroom workgroup, and assessing whether constitutional ideals …

Interlocutory Appeals In New York-Time Has Come For A More Efficient Approach, David Scheffel

Pace Law Review

Currently, the appellate division must decide an enormous number of appeals every year.7 In light of this caseload crisis, New York must reevaluate its generous approach to interlocutory appeals.8 This Comment discusses how the appellate division can deal most efficiently with interlocutory appeals. Part II describes the history of interlocutory appeals in New York, since the creation of the appellate division. Part III explains how other jurisdictions treat interlocutory appeals. Part IV presents the current caseload crisis in the appellate division. Part V describes the controversy over unlimited interlocutory appealability. Part VI evaluates how New York can streamline its approach …

Commercial Litigation In New York State Courts (Robert L. Haig, Editor-In-Chief), Joseph P. Sullivan

Pace Law Review

No abstract provided.

The Constitutional Convention And Court Merger In New York State, Jay C. Carlisle, Matthew J. Shock

Pace Law Review

In November 2017, voters in New York, for the first time in twenty years, will be asked to decide whether there “[s]hall be a convention to revise the constitution and amend the same?” If it is decided by the electorate to call a convention, “delegates will be elected in November 2018, and the convention will convene in April 2019.” One of the significant goals of a convention would be the achievement of court merger in the Empire State. The purpose of this perspective is to discuss the pros and cons of a constitutional convention with an emphasis on court merger.

The Road To A Constitutional Convention: Reforming The New York State Unified Court System And Expanding Access To Civil Justice, Jonathan Lippman

Pace Law Review

This article will focus on the judiciary reforms and access to justice—starting with reforms to the structure of the Unified Court System and discussing other ways that a constitutional convention might serve to improve the operation of the courts. The article will then explore the state’s deficiency in providing its low-income citizens access to justice in civil matters relating to housing, family safety and security, and subsistence income, and how a convention can highlight these issues.

Luther V. Borden: A Taney Court Mystery Solved, Louise Weinberg

Pace Law Review

It has not been generally remarked that Chief Justice Taney wrote surprisingly few of the Taney Court’s major opinions—those cases that tend to be anthologized and remembered by generalists. Those major cases which Taney did write are consistently about slavery (or states’ rights or state powers, which in Taney’s mind may have amounted to the same thing). There is a notable exception: Luther v. Borden—a case about the Guarantee Clause. This raises a question. Setting aside his opinions on slavery or states’ rights, what could have moved the author of Dred Scott, by consensus the worst Supreme Court opinion in …

Preservation: What Is It Good For?, Yuval Simchi-Levi

Pace Law Review

The Article proceeds as follows: in Part A, the preservation doctrine is defined. In Part B, the history of the preservation doctrine is described. In Part C, there is an explanation as to the purpose of preservation. In Part D, there is a description of the appellate process in New York. In Part E, the statutory rules of the New York Court of Appeals are described. In Part F, there is a description of how the rules of preservation have loosened in New York since 2009. In Part G, there is a statistical analysis of the consequences of loosening the …

Circuit Splits And Empiricism In The Supreme Court, Karen M. Gebbia

Pace Law Review

This Article demonstrates, empirically rather than merely in theory, how a failure to do so leads to unreliable conclusions concerning the relationship between the Supreme Court and the circuit courts of appeal. Specifically, commentators routinely misapply facially accurate raw data regarding the rate at which the Court reverses circuit court decisions to support unreliable conclusions regarding the comparative degree of accord between the Court and individual circuits. Commentators and the popular press then employ these unreliable conclusions to draw unsupported inferences regarding the reasons for supposed discord between the Court and the circuits, and to urge fundamental institutional reforms ranging …

#Snitches Get Stitches: Witness Intimidation In The Age Of Facebook And Twitter, John Browning

Pace Law Review

In order to better understand witness intimidation in the age of social media, one must examine both the forms it has taken as well as the response by law enforcement and the criminal justice system. As this article points out, the digital age has brought with it a host of new ways in which witnesses may be subjected to online harassment and intimidation across multiple platforms, and those means have been used to target not only victims and fact witnesses but even prosecutors and expert witnesses as well. The article will also examine potential responses to the problem of witness …

Is It Law Or Something Else?: A Divided Judiciary In The Application Of Fraudulent Transfer Law Under § 546(E) Of The Bankruptcy Code, Jaclyn Weissgerber

Pace Law Review

In Part I of this Note, I will provide a general overview of leveraged buyouts. The discussion of how and why LBOs are implemented is particularly relevant to the application of fraudulent transfer analysis. In Part II, I will discuss fraudulent transfer law as defined by the Bankruptcy Code. In Part III, I will discuss which transfers within the LBO should be attacked under fraudulent transfer law and why; this section will focus on the various stakes of the parties involved in the leveraged buyout transaction. I will provide an overview of the specific factors that bankruptcy and federal appellate …

Bigger Isn’T Always Better: An Analysis Of Court Efficiency Using Hierarchical Linear Modeling, Teresa Dalton, Jordan M. Singer

Pace Law Review

One important measure of trial court efficiency is overall case length—that is, the elapsed time from a case’s initial filing to its final disposition. Using a large, recent dataset from nearly 7000 federal civil cases, we find that two variables are particularly useful in predicting overall case length: the total number of attorneys filing an appearance in the case, and the number of authorized judgeships for a given district court. Further, we find a significant and surprising interaction between these two variables, indicating that smaller courts are more efficient than larger courts at processing civil cases when more than three …

A Failure To Supervise: How The Bureaucracy And The Courts Abandoned Their Intended Roles Under Erisa, Lauren R. Roth

Pace Law Review

This Article addresses how courts failed to adequately supervise employers administering pension plans before ERISA. Relying on a number of different legal theories—from an initial theory that pensions were gratuities offered by employers to the recognition that pension promises could create contractual rights—the courts repeatedly found ways to allow employers to promise much and provide little to workers expecting retirement security. In Section III, this Article addresses how Congress failed to create an effective structure for strong bureaucratic enforcement and the bureaucratic agencies with enforcement responsibilities failed to fulfill those functions. Finally, in Section IV, this Article discusses how the …

The Collision Of Law And Science: American Court Responses To Developments In Forensic Science, Sarah Lucy Cooper

Pace Law Review

This paper considers how American courts have responded to developments in forensic science by focusing on four popular forensic science disciplines: (1) fingerprint identification (friction ridge analysis); (2) firearms identification (tool-mark analysis); (3) bite mark identification (forensic odontology); and (4) arson investigation (fire science). Part I briefly explores the relationship between law and science. Part II charts the development of the legal frameworks that govern the admissibility of expert evidence in America. Part III discusses the identification methods employed by these four disciplines and provides examples of erroneous identifications. Part IV comments on the NAS Report findings that relate to …

The Supreme Court’S Rationale In Capital Cases: A One Way Street?, Kimberly Bliss

Pace Law Review

No abstract provided.

Should New York Courts Hear Certified Questions From The Securities And Exchange Commission?, Verity Winship

Pace Law Review

No abstract provided.

A Picture Of The New York Court Of Appeals At The Time Of Wood V. Lucy, Lady Duff-Gordon, Meredith R. Miller

Pace Law Review

No abstract provided.

Why Health Courts Are Unconstitutional, Amy Widman

Pace Law Review

No abstract provided.