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Series

Pace Law Faculty Publications

1990

Practice and Procedure

Articles 1 - 4 of 4

Full-Text Articles in Law

"You Can Lead A Horse To Water . . .": The Supreme Court's Refusal To Allow The Exercise Of Original Jurisdiction Conferred By Congress, Donald L. Doernberg Jan 1990

"You Can Lead A Horse To Water . . .": The Supreme Court's Refusal To Allow The Exercise Of Original Jurisdiction Conferred By Congress, Donald L. Doernberg

Pace Law Faculty Publications

This Article will address primarily the lack of textual and historical support for the Court's narrow construction of jurisdictional provisions that cause it to deny the existence of jurisdiction. In addition, the Article will briefly describe the lack of historical support for the Court's independent development of the abstention doctrines and their consequent illegitimacy. Both areas share democratic theory and institutional legitimacy concerns that Professor Redish will address, but let me respectfully suggest that these issues are best understood in light of the congressional thought underlying the Title 28 authorizations.


Civil Practice, Jay C. Carlisle Jan 1990

Civil Practice, Jay C. Carlisle

Pace Law Faculty Publications

During the Survey year the New York Court of Appeals upheld the constitutionality of the state toxic tort revivor statute and adopted the market share theory in DES cases. The court also gave the bar a Christmas present in Tewari v. Tsoutsouros3 and clarified important discovery issues .Two appellate courts held that the AIDS virus falls within New York Civil Practice Law and Rules ("CPLR") 214-c and issued important decisions in notice of claims cases.6Also, several trial courts actively applied new sanctions rules. Perhaps the most important developments during the Survey year were the bench and bar proposals relating ...


Juridical Chameleons In The "New Erie" Canal, Donald L. Doernberg Jan 1990

Juridical Chameleons In The "New Erie" Canal, Donald L. Doernberg

Pace Law Faculty Publications

The New Erie doctrine, however, has become a doctrine of convenience, inconsistently applied by conservative and liberal Justices alike. It is the antithesis of a “neutral principle” of constitutional adjudication. To use Justice Jackson's term, the federal laws are not the “juridical chameleons”--the Justices are. Part II of this Article discusses the old and the New Erie doctrines as articulated by the United States Supreme Court. Part III demonstrates the difficulty of limiting the New Erie doctrine to the single area of implied rights of action and shows how the broad brush with which the doctrine's proponents ...


The New Quasi In Rem Jurisdiction: New York's Revival Of A Doctrine Whose Time Has Passed, Michael B. Mushlin Jan 1990

The New Quasi In Rem Jurisdiction: New York's Revival Of A Doctrine Whose Time Has Passed, Michael B. Mushlin

Pace Law Faculty Publications

This Article closely examines the rationale offered for the new quasi in rem jurisdiction, and concludes that it cannot withstand careful analysis. Courts have explained that the new theory of quasi in rem jurisdiction is necessary to fill gaps in the state's long arm statute. However, gaps in a long arm statute can be filled by legislative amendments which can provide in personam jurisdiction up to the full extent permitted by due process. In fact, long arm statutes have steadily expanded over the last decade to take up the slack left by Shaffer. In personam jurisdiction under a long ...