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Civil Practice, Jay C. Carlisle
Civil Practice, Jay C. Carlisle
Elisabeth Haub School of 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 to …
"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
"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
Elisabeth Haub School of 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.
Juridical Chameleons In The "New Erie" Canal, Donald L. Doernberg
Juridical Chameleons In The "New Erie" Canal, Donald L. Doernberg
Elisabeth Haub School of 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 paint necessarily touches …