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Articles 1 - 21 of 21
Full-Text Articles in Law
Unpuzzling Complete Preemption: Beneficial National Bank V. Anderson After Two Decades In The Circuit Courts, Anthony Salzetta
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 …
Interlocutory Appeals In New York-Time Has Come For A More Efficient Approach, David Scheffel
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 …
Mixing Law And Equity Causes Of Action Does Not Preclude A Jury Trial, Philip M. Halpern
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
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
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, …
“Standing” In The Shadow Of Erie: Federalism In The Balance In Hollingsworth V. Perry, Glenn S. Koppel
“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 …
New Methods Of Financial White-Collar Criminal Investigation And Prosecution: The Spillover Of Wiretaps To Civil Enforcement Proceedings, Andrew P. Atkins
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 …
Identity Crisis: Class Certification, Aggregate Proof, And How Rule 23 May Be Self-Defeating The Policy For Which It Was Established, J. Britton Whitbeck
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
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
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
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.
Recent Statute Of Limitations Developments In The New York Court Of Appeals, Jay C. Carlisle Ii
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
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
Recent Jurisdiction Developments In The New York Court Of Appeals, Jay C. Carlisle
Pace Law Review
No abstract provided.
What's An Intimate Relationship, Anyway? Expanding Access To The New York State Family Courts For Civil Orders Of Protection, Jennifer Cranstoun, Christopher O'Connor, Tracey Alter
What's An Intimate Relationship, Anyway? Expanding Access To The New York State Family Courts For Civil Orders Of Protection, Jennifer Cranstoun, Christopher O'Connor, Tracey Alter
Pace Law Review
No abstract provided.
Should New York Courts Hear Certified Questions From The Securities And Exchange Commission?, Verity Winship
Should New York Courts Hear Certified Questions From The Securities And Exchange Commission?, Verity Winship
Pace Law Review
No abstract provided.
Which Party Pays The Costs Of Document Disclosure?, Patrick M. Connors
Which Party Pays The Costs Of Document Disclosure?, Patrick M. Connors
Pace Law Review
No abstract provided.
Forum Non Conveniens And The Need For Availability Of An Alternative Forum Under Cplr 327: Is The Islamic Republic Case An Anomaly?, Anthony J. Centone
Forum Non Conveniens And The Need For Availability Of An Alternative Forum Under Cplr 327: Is The Islamic Republic Case An Anomaly?, Anthony J. Centone
Pace Law Review
No abstract provided.
Standing To Sue In Another's Shoes: Can An Assignee Of An Accrued Copyright Infringement Claim With No Other Interest In The Copyright Itself Sue For The Infringement?, Wenjie Li
Pace Law Review
No abstract provided.
Is There A Compelling Interest To Compel ? Examining Pre-Hearing Subpoenas Under The Federal Arbitration Act, Dean W. Sattler
Is There A Compelling Interest To Compel ? Examining Pre-Hearing Subpoenas Under The Federal Arbitration Act, Dean W. Sattler
Pace Law Review
No abstract provided.