Civil Procedure Commons^™

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 …

Doe V. Nestle, S.A.: Chocolate And The Prohibition On Child Slavery, Megan M. Coppa

Pace International Law Review

West Africa is presently home to approximately 1.5 million acres of cocoa farmland, which subsequently produces 70% of the world’s current chocolate supply. Côte d’Ivoire, also known as the Ivory Coast, is one of the largest cocoa producing countries within West Africa.

The increase of farmland and the need to control the deteriorating conditions have always created a demand for farm workers. Regrettably, more than 1.5 million cocoa farm workers in West Africa are currently children. These child workers are exposed to hazardous dust, flames, smoke, and chemicals, are required to utilize dangerous tools that they are not properly trained …

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …

Establishing Climate Change Standing: A New Approach, Ian R. Curry

Pace Environmental Law Review

Climate change is one of the thorniest political, legal, and economic issues of our time. Therefore, a new legal approach to the issue is required. This Note proposes a streamlined approach for climate change standing, one that assumes injury in fact and causation for a class of discernible climate change harms. A streamlined approach will enable litigants harmed by climate change to seek redress in court, providing an outlet for redress where there has previously been none. Part II of this Note discusses the constitutional doctrine of standing. It begins with a summary of Article III and the logic behind …

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 …

Hogan Vs. Gawker Ii: A Statutory Solution To Fraudulent Joinder, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This Article will first review the intersection of federal jurisdiction and litigation strategy by examining the requirements for diversity jurisdiction in federal court as well as the circumstances that must be present to allow a defendant to remove a case from state court to federal court. The Article will then review the history of the court-created doctrine of fraudulent joinder, and will examine the various tests currently in use by the lower federal courts. The Article will then address whether it makes more sense to create a statutory solution, and will examine and analyze the Fraudulent Joinder Prevention Act of …

Commercial Arbitration: Germany And The United States, Jill I. Gross, Christian Duve

Elisabeth Haub School of Law Faculty Publications

Arbitration has deep roots in the legal cultures of the United States and Germany--and is still an important option for resolving disputes in both countries today. As far back as Colonial times, US merchants used arbitration to settle industry disputes, and in the early 19th century, American stockbrokers resolved intra-industry disputes through arbitration at the New York Stock Exchange. In Germany, a country with a civil law rather than a common law tradition, commercial arbitration has been practiced for centuries: the first draft of the German Code of Civil Procedure from 1877 included a section establishing the legal foundations of …

Paterno V. Laser Spine Institute: Did The New York Court Of Appeals' Misapplication Of Unjustified Policy Fears Lead To A Miscarriage Of Justice And The Creation Of Inadequate Precedent For The Proper Use Of The Empire State’S Long-Arm Statute?, Jay C. Carlisle, Christine M. Murphy, Kiersten M. Schramek, Marley Strauss

Elisabeth Haub School of Law Faculty Publications

This article discusses CPLR section 302(a)(1) as applied by the New York State Court of Appeals in Paterno v. Laser Spine Institute. The Paterno Court failed to properly apply a statutory jurisdictional analysis by conflating it with a due process inquiry. Also, the Court unnecessarily balanced the interests of the Empire State's citizens in having a forum for access to justice with unjustified policy fears of potential costs to the state from assertions of in personam jurisdiction. Furthermore, the Court's policy focus4 on the protection of medical doctors from lawsuits and the prevention of “floodgate” litigation which would adversely affect …

Mixing Law And Equity Causes Of Action Does Not Preclude A Jury Trial, Philip M. Halpern

Pace Law Review

This article addresses the issue of the preclusion of jury trials in actions which contemplate both legal and equitable relief. Part II of this article addresses the constitutional and statutory history of New York Civil Practice Law and Rules (“CPLR”) Section 4101 concerning issues triable by a jury and the dichotomy between those actions triable by a jury and equitable actions triable by the court alone. Part III of this article addresses the interplay between CPLR Sections 4101 and 4102, concerning demand and waiver of trial by jury, and the analysis developed by the courts to determine whether a jury …

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 …

Taxpayers’ Lack Of Standing In International Tax Dispute Resolutions: An Analysis Based On The Hybrid Norms Of International Taxation, Limor Riza

Pace Law Review

This paper examines whether a taxpayer should have “standing” in international dispute resolutions. To answer this question the primary task is to identify the nature of international taxation. In other words, this paper discusses how to classify the field of international taxation. Is it part of public international law, private international law (i.e., conflict of laws), national (domestic) law, or is it a hybrid field that requires specific attention? Making this distinction is vital for resolving disputes when a taxpayer is taxed twice for cross-border transactions in cases where the double tax convention is unclear and both contracting states claim …

Reexamining The Seventh Amendment Argument Against Issue Certification, Douglas Mcnamara, Blake Boghosian, Leila Aminpour

Pace Law Review

Issue certification does not run afoul of the Seventh Amendment because of the constitutional doctrines of standing and ripeness. Part II(A) and II(B) examines FRCP 23 and the history of class actions and issue certifications. Next, Part II(C) analyzes Rhone Poulenc and its Seventh Amendment analysis. Part III(A) argues that ripeness and standing undermine Seventh Amendment arguments concerning reexamination. First, as to ripeness, the reexamination argument relies on a series of speculations: that the class plaintiffs will prevail on the trial of the common issues; and that a second jury would—contrary to legal presumptions — ignore the trial judge’s instructions, …

The New York Court Of Appeals Visits (And Then Revisits) The Preclusive Impact Of Administrative Findings Of Fact In Subsequent State Court Actions, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

The Court of Appeals decision in Auqui v. Seven Thirty One Limited Partnership, 3 N.E.3d 682 (N.Y. 2013), recognizes that administrative proceedings which take the form of “quasi-judicial” determinations may sometimes be given preclusive impact in subsequent judicial proceedings provided that the identity of issue and full and fair opportunity requirements of collateral estoppel or issue preclusion are satisfied. The decision also recognizes that administrative determinations made without the benefit of rules of evidence, pre-trial disclosure and motion practice should be given very limited affect in subsequent judicial proceedings. The fact that the Empire State’s highest court unanimously reversed itself …

“Standing” In The Shadow Of Erie: Federalism In The Balance In Hollingsworth V. Perry, Glenn S. Koppel

Pace Law Review

This Article provides an insight into the Court’s divergent views on the federal standing issue in Hollingsworth by viewing the Justices’ conflicting positions through the lens of the Court’s Erie jurisprudence, which, at its core, focuses on calibrating the proper judicial balance of power in a given case between conflicting federal and state interests in determining vertical choice-of-law issues. Hollingsworth is uniquely positioned at the intersection of federal standing principles and Erie doctrine, confronting the Court with competing balance of power concerns inherent in our federal system. Standing, as a requirement for the limited exercise of federal judicial power under …

Horton The Elephant Interprets The Federal Rules Of Civil Procedure: How The Federal Courts Sometimes Do And Always Should Understand Them, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

In Shady Grove, the Court considered whether a federal class action was maintainable in a diversity case where state law forbade class actions. The justices were sharply split into shifting majorities. One majority concluded that Rule 23 was not substantive for REA purposes and that it applied, but its members could not agree on why. Four justices thought it was proper to look only at the Federal Rule in question to see whether it addressed substance or procedure on its face. A different majority supported an approach to REA questions that required evaluating state law to determine whether the Federal …

Resoling International Shoe, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

Goodyear Dunlop Tire Operations, S.A. v. Brown and Daimler AG v. Bauman sharply restricted general jurisdiction over corporations, limiting it to a corporation’s (1) state of incorporation, (2) state of principal place of business, or (3) another state where the corporation is “essentially at home.” The Court analogized the first two categories to an individual’s domicile. The Court made clear that the third category is very small, leading Justice Sotomayor, in her opinion concurring in the judgment, to charge that the Court had made many corporations “too big for general jurisdiction.” It is noteworthy that although the Court used the …

The Professor And The Judge: Introducing First Year Students To The Law In Context, Michael B. Mushlin, Lisa Margaret Smith

Elisabeth Haub School of Law Faculty Publications

For the past five years the authors, one a law professor, and the other a federal judge, have joined forces to teach introductory civil procedure to first semester first year students. Our approach is contrary to the traditional theory of legal instruction which holds that students learn first by a rigid diet of Socratic teaching of the fundamentals of legal analysis without any exposure to the real world or even a simulation of it. The central idea behind our experiment is that at the beginning of law school it is essential to provide a contextual introduction to the work of …

Seeking Justice In The Empire State: Court Of Appeals Broadens The Reach Of Long Arm Jurisdiction And Clarifies The Statutory Guidelines For Application Of Cplr Section 302(A)(1), Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

This article will discuss developments in long-arm jurisdiction under CPLR section 302(a)(1)1 and analyze the recent New York State Court of Appeals‘s thoughtful and instructive decision in Licci ex rel. Licci v. Lebanese Canadian Bank, SAL. Licci decided the question of whether a non-domiciliary‘s maintenance of a bank account in New York constituted a “transaction of business” out of which the plaintiff‘s claims arose under the state‘s long-arm statute. The Licci plaintiffs had alleged that the defendant funded a terrorist organization responsible for the injuries and deaths of certain plaintiffs and decedents they represented. The Licci opinion did not decide …

Happy Anniversary To The Cplr: A Joint Achievement Of The Practicing Bar And The Academy, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

This September, we celebrated the 50th anniversary of the Civil Practice Law and Rules of New York State. The CPLR was the handiwork of the Advisory Committee on Practice and Procedure, appointed in 1955 by the New York State Temporary Commission on the Courts. Under the leadership of the Committee's reporter, then Columbia Law School Professor Jack B. Weinstein, the Committee members, which included former New York State Bar Association presidents Jackson Dykman and S. Hazard Gillespie, spent five years overhauling, revising and reforming the Civil Practice Act of 1920. This remarkable joint venture between the practicing bar and the …

New Methods Of Financial White-Collar Criminal Investigation And Prosecution: The Spillover Of Wiretaps To Civil Enforcement Proceedings, Andrew P. Atkins

Pace Law Review

To have a proper understanding of the questions presented by the Rajaratnam cases, a basic understanding of the criminal and civil cases is necessary. Accordingly, Part II will briefly discuss the facts of the two cases, the investigation, and relevant court rulings. Part III will briefly discuss the history and relevant provisions of Title III of the Omnibus Crime Control and Safe Streets Act , the “comprehensive scheme” for regulating the authorization and disclosure of wiretaps. Part IV will discuss the primary theories the SEC could have used to obtain wiretap recordings for use in its civil enforcement proceeding, namely …

Reversing Course: A Critique Of The Court Of Appeals New Rules For Unjust Enrichment And Criminal Legal Malpractice Actions, Jay C. Carlisle Ii

Elisabeth Haub School of Law Faculty Publications

This article will discuss recent developments by the New York Court of Appeals on the doctrine of unjust enrichment and on the elimination of non-pecuniary damages in criminal legal malpractice actions. Specifically, the article will examine the cases of Georgia Malone & Co. v. Ralph Rieder and Dombrowski v. Bulson.

Identity Crisis: Class Certification, Aggregate Proof, And How Rule 23 May Be Self-Defeating The Policy For Which It Was Established, J. Britton Whitbeck

Pace Law Review

Class actions suits developed in the United States as a form of “group litigation,” an alternative to the impracticability or inequities of separate, individual actions of a similarly situated class of plaintiffs and, eventually, defendants. Congressional passage of the Class Action Fairness Act of 2005 (CAFA) provided the federal courts with expounded diversity jurisdiction for the purpose of “assur[ing] fairer outcomes for class members and defendants.” However, recent circuit splits regarding class certification under Rule 23 of the Federal Rules of Civil Procedure (FRCP) and the use of aggregate proof in certifying classes have, in an ironic twist of legal …

Travel Abroad, Sue At Home 2012: Forum Non Conveniens & The Enforcement Of Forum Selection And Mandatory Arbitration Clauses, Thomas A. Dickerson

Pace Law Review

A common litigation strategy is to sue in the U.S. in federal or state court against a solvent defendant subject to long-arm jurisdiction and the application of U.S. common law or statutory law. Such cases raise a variety of complex liability and procedural issues including liability shifting, jurisdiction, forum non conveniens, and choice of law. This Article will identify various types of travel accidents abroad, and discuss the doctrine of forum non conveniens and the enforceability of forum selection and mandatory arbitration clauses in travel consumer contracts.

Trial Bench Views: Iaals Report On Findings From A National Survey On Civil Procedure, Corina Gerety

Pace Law Review

In the spring of 2010, the Institute for the Advancement of the American Legal System (“IAALS”) collected survey data on the American civil justice system from state and federal judges throughout the United States, as part of a joint effort with Northwestern University School of Law’s Searle Center on Law, Regulation, and Economic Growth (“Searle Center”). This report sets forth the collective opinions of respondent judges, as they bear on civil reform proposals developed by IAALS and the American College of Trial Lawyers Task Force on Discovery and Civil Litigation (“ACTL Task Force”).

Social Media And Ediscovery: Emerging Issues, Adam Cohen

Pace Law Review

Courts, as well as private sector and government policymakers, have only just begun to address the practical litigation issues raised by the proliferation of social media channels and content. This Article comments on some of those issues as they relate to electronic discovery (“eDiscovery”) and examines how they have been approached in emerging case law. It does not address proposed legislation on a domestic and international level that may impact social media’s use in litigation, nor does it purport to be in any way comprehensive in its coverage of developments and potential developments in the legal implications of social media.

"The Tempest": Shady Grove Orthopedic Associates, P.A. V. Allstate Insurance Co.: The Rules Enabling Act Decision That Added To The Confusion--But Should Not Have, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

This Article discusses the effect Shady Grove is likely to have on vertical choice-of-law in cases involving Federal Rule of Civil Procedure 23.

Recent Statute Of Limitations Developments In The New York Court Of Appeals, Jay C. Carlisle Ii

Pace Law Review

No abstract provided.

The Newly-Enacted Cplr 3408 For Easing The Mortgage Foreclosure Crisis: Very Good Steps, But Not Legislatively Perfect, Mark C. Dillon

Pace Law Review

No abstract provided.

Recent Jurisdiction Developments In The New York Court Of Appeals, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

This article will discuss recent developments in long-arm jurisdiction under CPLR section 302 and two related New York Court of Appeals decisions. Specifically, the article will address Fischbarg v. Doucet, which presents the court's expansive view of long-arm jurisdiction in light of recent technological developments, and Ehrenfeld v. Mahfouz, in which the court's decision to limit long-arm jurisdiction was rejected by subsequent legislation, signaling a more expansive application of CPLR 302 in the future.

Recent Jurisdiction Developments In The New York Court Of Appeals, Jay C. Carlisle

Pace Law Review

No abstract provided.