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Articles 1 - 30 of 35
Full-Text Articles in Law
Hogan Vs. Gawker Ii: A Statutory Solution To Fraudulent Joinder, Michelle S. Simon
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
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
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 …
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
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 …
Horton The Elephant Interprets The Federal Rules Of Civil Procedure: How The Federal Courts Sometimes Do And Always Should Understand Them, Donald L. Doernberg
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
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
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
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 …
Reversing Course: A Critique Of The Court Of Appeals New Rules For Unjust Enrichment And Criminal Legal Malpractice Actions, Jay C. Carlisle Ii
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.
"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
"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 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
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.
The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg
The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
This Article proceeds in four parts. Part I discusses federal law as a new category of law after ratification of the Constitution and what that connotes for the time before federal law existed. Part II examines the shift from the natural law perspective, which had dominated jurisprudence into the late nineteenth century, to legal positivism. It was that change more than anything else that doomed the doctrine of Swift v. Tyson, which controlled vertical choice-of-law questions in the federal courts for ninety-six years until the Erie Court declared it unconstitutional. Part III canvasses the development of the Erie doctrine in …
Second Circuit 2005 Res Judicata Developments, Jay C. Carlisle
Second Circuit 2005 Res Judicata Developments, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the 2005 survey year, federal courts in the Second Circuit decided a number of important res judicata matters. Several district courts applied the doctrines of claim preclusion and issue preclusion to administrative and arbitral determinations. Several courts also expanded the “actually litigated” requirement for collateral estoppel and liberally applied the doctrine of defensive claim preclusion for counterclaims. Finally, the United States Court of Appeals for the Second Circuit issued seven res judicata decisions. In one, Vargas v. City of New York, the Second Circuit refined the standards for applying the Rooker-Feldman doctrine. This survey article will review some of …
Defining The Limits Of Supplemental Jurisdiction Under 28 U.S.C. § 1367: A Hearty Welcome To Permissive Counterclaims, Michelle S. Simon
Defining The Limits Of Supplemental Jurisdiction Under 28 U.S.C. § 1367: A Hearty Welcome To Permissive Counterclaims, Michelle S. Simon
Elisabeth Haub School of Law Faculty Publications
In 1990, Congress passed 28 U.S.C. § 1367, which combined the judge-made doctrines of ancillary and pendent jurisdiction into a new category, “supplemental jurisdiction.” Supplemental jurisdiction allows federal district courts with original jurisdiction to also have jurisdiction over all other claims that form part of the “same case or controversy under Article III of the United States Constitution.” This Article analyzes supplemental jurisdiction over both permissive and compulsory counterclaims, before and after the codification of § 1367, by looking at the meaning of “same case or controversy.” It then examines two Circuit Court opinions that have held permissive counterclaims may …
Offensive Issue Preclusion In The Criminal Context: Two Steps Foward, One Step Back, Michelle S. Simon
Offensive Issue Preclusion In The Criminal Context: Two Steps Foward, One Step Back, Michelle S. Simon
Elisabeth Haub School of Law Faculty Publications
This article addresses whether the expansion of the doctrine of issue preclusion in the federal criminal area should mirror the expansion of the doctrine in the federal civil area. The article examines the general requirements of issue preclusion and the evolution of issue preclusion in both the civil and criminal context. Next, this article examines the current status of offensive and defensive issue preclusion when the first suit is civil and the second suit is criminal, the first suit is criminal and the second suit is civil, and where both the first and second action is criminal. The article then …
Second Circuit 2000-2001 Personal Jurisdiction Developments, Jay C. Carlisle
Second Circuit 2000-2001 Personal Jurisdiction Developments, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
This Survey Article will review some of the district and circuit courts' significant decisions, and comment on future trends for application of the law of personal jurisdiction in the Second Circuit. The Article concludes with a recommendation that district court judges should not grant or deny personal jurisdiction defenses until at least limited jurisdictional discovery has been granted and is completed.
Second Circuit 1999-2000 Res Judicata Developments, Jay C. Carlisle
Second Circuit 1999-2000 Res Judicata Developments, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the 1999-2000 survey year the United States Court of Appeals for the Second Circuit has issued at least twenty-five res judicata decisions expanding the doctrines of claim preclusion and issue preclusion. The court liberally applied claim preclusion but infrequently applied the more expansive doctrine of issue preclusion. Also, the Second Circuit released over fifty unpublished decisions that affect the rights of pro se litigants appearing before the court. These decisions demonstrate the court's immense respect for the doctrine of res judicata. Similarly, the decisions illustrate the extent to which the court relies on the doctrine to achieve finality, to …
What's Wrong With This Picture?: Rule Interpleader, The Anti-Injunction Act, In Personam Jurisdiction, And M.C. Escher, Donald L. Doernberg
What's Wrong With This Picture?: Rule Interpleader, The Anti-Injunction Act, In Personam Jurisdiction, And M.C. Escher, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
The effectiveness of interpleader depends upon the availability of injunctions against other proceedings. There is no congressional authorization of such injunctions for rule interpleader cases. If interpleader were an in rem action, one of the other exceptions to the Anti-Injunction Act might save the day, but the Supreme Court has apparently foreclosed that option. This article examines that three-sided conflict. Part II discusses the problem in greater depth, focusing first on how interpleader functions and why it depends on being “the only game in town.” Part II next addresses the background and interpretation of the Anti-Injunction Act, exploring particularly the …
Civil Practice, Jay C. Carlisle
Civil Practice, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the 1992 Survey year, “new” legislation was enacted which fundamentally changes the procedure for commencement of some lawsuits. Effective December 31, 1992, all civil actions in supreme and county courts must be commenced by filing a summons and complaint or summons with notice. Several important amendments to the Civil Practice Law and Rules (“CPLR”) were enacted and effective January 1, 1993, new IAS and escrow check bouncing rules became effective. Additionally, there have been significant developments in the decisional law of statute of limitations, discovery, sanctions, and the legal profession. These and other areas should be of interest to …
Civil Practice, Jay C. Carlisle
Civil Practice, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the Survey year seventeen articles of the CPLR were amended and three new articles were added. Also, effective December 1, 1991, Congress has approved important amendments to the Federal Rules of Civil Procedure, Civil Justice Expenses and Delay Reduction Plans were adopted by the Board of Judges of the Southern and Eastern Districts of New York. Additionally, there have been significant developments in the decisional law of discovery, statute of limitations, sanctions, and res judicata. These and other areas should be of interest to the practitioner.
New York Civil Practice, Jay C. Carlisle
New York Civil Practice, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the Survey year, the New York Court of Appeals issued important opinions with respect to strict compliance for service of process, the foreign object exception under CPLR 214-a, and disclosure against corporate employees. The Court also imposed sanctions for the first time under Part 130 of the Uniform Rules, and ruled that issue preclusion could be given to a criminal conviction to preclude subsequent civil litigation. In addition the Court recognized that substituted service could be used against a criminal contemnor. New York appellate courts issued instructive decisions regarding long-arm jurisdiction, forum non conveniens, and discovery of surveillance videos. …
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 …
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 …
The New Quasi In Rem Jurisdiction: New York's Revival Of A Doctrine Whose Time Has Passed, Michael B. Mushlin
The New Quasi In Rem Jurisdiction: New York's Revival Of A Doctrine Whose Time Has Passed, Michael B. Mushlin
Elisabeth Haub School of 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 arm …
The Trojan Horse: How The Declaratory Judgment Act Created A Cause Of Action And Expanded Federal Jurisdiction While The Supreme Court Wasn't Looking, Donald L. Doernberg, Michael B. Mushlin
The Trojan Horse: How The Declaratory Judgment Act Created A Cause Of Action And Expanded Federal Jurisdiction While The Supreme Court Wasn't Looking, Donald L. Doernberg, Michael B. Mushlin
Elisabeth Haub School of Law Faculty Publications
This Article examines the Court's treatment of declaratory judgment actions. It demonstrates that the Court's ‘procedural only’ view of the Act frustrates congressional intent and is neither analytically sound nor practical. Part I discusses the general rules governing federal question jurisdiction and the Court's method for dealing with declaratory judgment cases. Part II explores the history and purpose of the Declaratory Judgment Act and its relationship to federal question jurisdiction. This study demonstrates that the Supreme Court's assumptions about the jurisdictional import of the Declaratory Judgment Act find no support in the legislative history. Further, it shows that the Court's …
History Comes Calling: Dean Griswold Offers New Evidence About The Jurisdictional Debate Surrounding The Enactment Of The Declaratory Judgment Act, Donald L. Doernberg, Michael B. Mushlin
History Comes Calling: Dean Griswold Offers New Evidence About The Jurisdictional Debate Surrounding The Enactment Of The Declaratory Judgment Act, Donald L. Doernberg, Michael B. Mushlin
Elisabeth Haub School of Law Faculty Publications
In a recent article, we proposed that the Declaratory Judgment Act of 1934 was intended, contrary to the Supreme Court's long-standing interpretation, to enlarge the subject matter jurisdiction of the federal courts. When Congress considered the Act, jurisdictional concerns centered around whether declaratory judgments would violate the case-or-controversy clause, not whether introduction of the device would expand the federal question jurisdiction Congress already had authorized. There is, indeed, substantial evidence that Congress intended to expand federal question jurisdiction to include at least two, and possibly three, case models; there is virtually no evidence supporting the contrary position taken by the …
Civil Practice, Jay C. Carlisle
Civil Practice, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the 1988 Survey year, new sanction rules, effective January 1, 1989, were approved by the Court of Appeals, several Uniform Rules were amended: and existing rules applied by our courts. New legislation was also passed relating to a comprehensive Interest On Lawyers Account (IOLA). The Court of Appeals abolished the fiduciary shield doctrine: limited the reach of our long-arm statute (CPLR 302(a)(1)) in defamation actions: and ruled that motions to dismiss cannot be converted into summary judgments without notice to all parties. The Court of Appeals also refined the doctrine of issue preclusion, which has recently been expanded, and …
Civil Practice, Jay C. Carlisle
Civil Practice, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
While 1986 was a watershed year for the CPLR practitioner, 1987 passed with what one prominent commentator has referred "a yawn." Nonetheless, there were several important amendments to the CPLR in 1987 and our courts produced more than a few ''drab” opinions worthy of discussion. Furthermore, the bar and bench should rejoice because this year's Survey marks the twenty-fifth anniversary of the CPLR and the fiftieth anniversary of the Federal Rules of Civil Procedure. It is also the sixty-fifth year since a commentator first reviewed significant developments in New York civil practice.
Simplified Procedure For Court Determination Of Disputes Under New York's Civil Practice Law And Rules, Jay C. Carlisle
Simplified Procedure For Court Determination Of Disputes Under New York's Civil Practice Law And Rules, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
Although the SPCDD is not often utilized, its potential for alleviating crowded court dockets merits a critical review. Part I of this Article discusses the history of the SPCDD and describes its provisions. Part II compares the SPCDD with alternative methods of dispute resolution in New York and Part III offers suggestions as to why lawyers are reluctant to take advantage of the simplified procedure. Part IV evaluates the ways in which the SPCDD is particularly compatible with the IAS and suggests methods for the SPCDD's full implementation.