York Court Research Articles

Interpreting the <I>Pari Passu</I> Clause in Sovereign Bond Contracts: It's All Hebrew (and Aramaic) to Me

In this comment, we take a helicopter tour of the history of notions of ?equality? and ?justice? in sovereign debt restructuring in particular, and in the division of property more generally, and show that these concerns have existed for centuries, if not millennia. We argue that the issue at stake in the interpretation of the pari passu clause is not so much the treatment of holders of identical claims?it is now customary to treat them identically?but whether the holders of different claims should be treated differently. We show that exists a customary ?principle of differentiation? that allows creditors with claims that differ in specific ways to be treated preferentially. One of these specific differences concerns debts that have been reduced in value during a previous debt restructuring or default, and based on this principle we conclude that the New York court has, if not completely misinterpreted the meaning of the pari passu clause, then at least misapplied it.

The Brothers Peckham and the Politics of Judicial Nomination

The Brothers Peckham and the Politics of Judicial Nomination ALBERT B. LAWRENCE In 1894, President Grover Cleveland nominated Wheeler H. Peckham, a New York lawyer, for a seat on the Supreme Court of the United States. The Senate rejected the nomination. The defeat was orchestrated by New York Senator David B. Hill, a Tamma­ ny-Hall Democrat who opposed Cleveland’s reform style of “Bourbon” Democratic politics. Strangely, Hill proclaimed that he would support as a substitute nominee Peckham’s brother, New York Court of Appeals Judge Rufus W. Peckham, whose politics were rooted in the same reform tradition as that of his brother. Why the brother but not the nominee? There are circumstances to suggest that Hill wanted to move Rufus out of the way to make room on New York’s high court for a political crony of Hill’s, a lawyer who had been involved in a notorious “vote-stealing” scandal. Cleve­ land did not accede to Hill, and stubbornly put forward Wheeler’s nomination, which failed. He did nominate Rufus Peckham for another seat the following year, however, and won his confirmation. Cleveland, Hill, and the Peckhams were all New York Democrats. In fact, Hill had been Cleveland’s lieutenant governor when he served as governor from 1883 until he moved to the White House in March 1885.' But in the 1870s and 1880s the New York Democratic party was divided between what was known as the Tammany Hall machine in New York City and upstate reformers, led by one-time presi­ dential candidate Samuel J. Tilden and his chief lieutenant, Daniel Manning, an Albany banker and newspaper owner.2 The reformers became known as “Bourbon” Democrats.3 When the reformers allied with Republicans, they were collectively called “Mugwumps.”4 Cleveland had made his name as a reformer as mayor of Buffalo in 1882? Hill, on the other hand, had been “in league” for years with Tammany Hall and its leader, William Marcy “Boss” Tweed,6 but he supported Cleveland for governor because he wanted to become lieutenant governor.7 Once in Albany, Governor Cleve­ land angered Tammany by nominating some­ one from a rival Brooklyn machine as immigration commissioner. When Tammany THE PECKHAM BROTHERS 23 objected, he submitted a long list of nominees to state jobs, none of whom were favorites for Tammany patronage.8 He also battled with Tammany over fares on New York City’s elevated railroad.9 As President, Cleveland refused to partici­ pate in New York politics, and he would not endorse Hill, his successor as governor, when Hill ran for re-election in 1888.1(1 This was the final straw between Cleveland and Tammany. Hill, as governor, became the leader ofthe anti­ reformers and promptly declared war on Cleveland’s attempts to stem government patronage and reform the civil service. As President Cleveland’s biographer Alyn Brodsky described it: “A faction [of the New York party] dancing ominously to Hill’s piping and committed to perpetuating the spoils system was tightening its grip on the party.”11 Likewise, the President’s failure to win a second consecutive term in 1888 was attributed to Tammany’s refusal to give him strong support.12 Wheeler Hazard Peckham (left) and Rufus Peckham, Jr. (middle) read law under their father, Rufus Peckham Sr., and became successful lawyers in Albany. A middle brother, Joseph Henry (right), died at age seventeen. (Their mother, Isabella, died when young Rufus was nine.) Rufus followed in his father’s footsteps by serving as the district attorney for Albany, on the New York Supreme Court, and on the Court of Appeals. 24 JOURNAL OF SUPREME COURT HISTORY The Peckham brothers were lawyers from Albany whose father had been a Court of Appeals judge. All of the Peckhams were long-time acolytes of Tilden and their fellow Albanian, Manning. Tilden had run in opposition to Tammany corruption since his first campaign for New York Assembly in 1845.L’ Tweed then controlled the nomina­ tion and election of state, county, and city officials—particularly judges—in New York. “Judges were nominated partly with a view to the amount they could ‘put up,’ and partly with a view to their future decisions...

The Third Party Beneficiary Rule in the New York Court of Appeals

This paper addresses leading New York Court of Appeals decisions on third party beneficiary law from its beginnings in Lawrence v. Fox, through its developmental stages, and culminating with the modern Court’s adoption of the Restatement (Second) of Contracts (1981) in Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., Inc. Subsequent developments in the Second Circuit are then addressed, notable for the intersection of third party beneficiary law with priority among secured creditors.The goal of this paper is to trace the development of the Court’s varied approaches to the unique problems presented by these cases, and outline some of the equitable solutions and guidelines used by the Court of Appeals in its leading decisions on the topic. Throughout, this paper will attempt to draw a thematic thread through these decisions, and close in a reprise attempting to follow the thread backwards to the early Court of Appeals, analyzing whether and to what extent the Court has evolved in its view on the topic.

An Analysis of New York State’s Flawed Recovery Scheme in Prenatal Malpractice Actions: Why a Claim of NIED Should Be Available to Plaintiffs

Prior to 2006 mothers could not bring a wrongful death action on behalf of their stillborn child, nor could they bring any personal cause of action, absent a physical injury independent from the unsuccessful birth itself. In 2006, the New York Court of Appeals attempted to fill this gap in the case of Broadnax v. Gonzalez. This Note will analyze whether Broadnax successfully filled this recovery gap. Parts II, III, and IV will discuss the history of a mother’s failed attempts to gain recovery for the death of her stillborn child. Part V will discuss Broadnax. I will argue that Broadnax is flawed, as evidenced by subsequent cases that follow it as precedent. Finally, in Part VI, I will offer a better solution: instead of receiving arbitrary awards in the form of emotional damages, mothers should be given an actual cause of action in the form of Negligent Infliction of Emotional Distress.

Sovereign Debt Restructuring: Covenant and Default Clauses in Sovereign and Corporate Bonds and How the Difference Among Them Impacts in the NMLCase Against the Republic of Argentina in New York

This paper discusses key clauses of the sovereign and corporate debt bonds, with emphasis in the latter ones. In particular, the paper analyses such clauses as covenants, events of default, rights to sue and modifications and how they are applied in a sovereign debt restructuring process. It then also discusses the current events faced by the Republic of Argentina under its debt situation and the relationship between those events with the judicial case against the republic being litigated in the courts of New York. It finally describes the different ways that Argentina may take upon the various possible outcomes from said judicial proceedings before the courts of New York.

An Empirical Study of the Effect of Shady Grove v. Allstate on Forum Shopping in the New York Courts

Given the considerable prominence of forum-shopping concerns in the jurisprudence and academic literature on the so-called Erie Doctrine, courts and commentators may benefit from data on whether, and to what extent, forum shopping in fact responds to choice-of-law decisions under the Erie Doctrine. Prior to this paper, however, no empirical study quantified the changes in forum shopping behavior caused by a court decision applying the Erie Doctrine. I study changes in filing patterns of cases likely to be affected by the Supreme Court’s recent decision in Shady Grove v. Allstate and find evidence of large shifts in the patterns of original filings and removals in federal courts in New York that are consistent with the predicted forum shopping response to Shady Grove. In addition to providing the first empirical evidence of vertical forum shopping induced by a decision applying the Erie doctrine, this paper seeks to serve as a proof of concept for empirical research in this area. While there are significant obstacles to empirical research on the effects of Erie and its progeny, this paper outlines a methodology that may be feasible for future projects in this area.

Argentina Sovereign Debt: Inside the Judicial Labyrinth and How We May Leave it, But Not Yet

This paper discusses the default of the Republic of Argentina that took place in 2001, but with a view of the current and significant judicial events that are taking place as a consequence of such default. In particular, this paper analyzes and discusses the judicial cases brought by several investors against the Republic of Argentina before the New York federal courts based by the default of Argentina on its bonds as immediately after the default some bondholders of Argentine debt filed lawsuits in the New York courts, as it was the jurisdiction agreed in the terms and conditions of the bonds. However, during more than ten years the plaintiffs under the different lawsuits filed against Argentina have obtained favourable judgments but have been unable to collect upon their judgments. Plaintiffs have tried various judicial strategies to collect on the judgments but due to the United States Foreign Immunities Sovereign Act, which protects assets owned by sovereigns, they have been unable to do so. Part A tells the story of the default and the unsuccessful efforts to collect on the judgments. Part B describes the most recent judicial decisions against Argentina and in favour of the plaintiffs of the case under this analysis, which may turn the luck of those efforts. Part C discusses the term pari passu, which is the origin of this new litigation. Part D discusses certain particular terms and conditions proper and particular of the bonds issued by Argentina as part of its restructurings in 2005 and 2010, that prevents the country from offering better terms to the so called holdout bondholders (investors not participating in the those restructurings), and finally Part E analysis the different judicial outcomes of the court decisions.

Gitlow v. New York: every idea an incitement

In 1919 American Communist Party member Benjamin Gitlow was arrested for distributing a Left Wing Manifesto, a publication inspired by the Russian Revolution. He was charged with violating New York's Criminal Anarchy Law of 1902, which outlawed the advocacy of any doctrine advocating to the violent overthrow of government. Gitlow argued that the law violated his right to free speech but was still convicted. He appealed and five years later the Supreme Court upheld his sentence by a vote of 7-2. Throughout the legal proceedings, much attention was devoted to the bad tendency doctrine - the idea that speakers and writers were responsible for the probable effects of their words - which the Supreme Court explicitly endorsed in its decision. According to Justice Edward T. Sanford, A state may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. More important was Justice Oliver Wendell Holmes' dissent, in which he argued that the mere expression of ideas, separated from action, could not be punished under the clear and present danger doctrine. As Holmes put it, Every idea is an incitement and the expression of an idea, no matter how disagreeable, was protected by the First Amendment. While the majority disagreed, it also raised and endorsed the idea that the Bill of Rights could be violated by neither the federal government nor individual states - an idea known as that was addressed for the first time in this case. In recreating Gitlow, Marc Lendler opens up the world of American radicalism and brings back into focus a number of key figures in American law: defense attorney Clarence Darrow; New York Court of Appeals justices Roscoe Pound and Benjamin Cardozo; Walter Pollak of the fledgling ACLU; and dissenting justices Oliver Wendell Holmes and Louis Brandeis. Lendler also traces the origins of the incorporation doctrine and the ebb and flow of Gitlow as a precedent through the end of the Cold War. In a time when Islamic radicalism raises many of the same questions as domestic Communism did, Lendler's cogent explication of this landmark case helps students and Court-watchers alike better understand clear and present danger tests, ongoing debates over incitement, and the importance of the Holmes-Brandeis dissent in our jurisprudence.

An (un)common frame of reference: An American perspective on the jurisprudence of the CESL

This essay examines the ability of the recentlyproposed Common European Sales Lawto meet its goal of increasing cross-border tradeacross the Common Market, in light of itsdeeply realist jurisprudenceandits extensivereliance on the concepts of tradeusageandgood commercial practice. It concludesthat a more formalisticstatutethatprovidedmenus of clear contract default rulesandencouraged a jurisprudential approach similartothatadoptedby New York Courts, would have a better chance than the CESL of increasing cross-border trade, especiallyamong small and medium sizeenterprises.

Rejecting Property Rules-Liability Rules for Boomer's Nuisance Remedy: The Last Tour You Need of Calabresi and Melamed's Cathedral

This draft article analyzes and criticizes the New York court’s tort remedies in its nuisance decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s famous law-and-economics article, One View of the Cathedral. From the Remedies branch of Legal Realism, this draft finds both wanting because both subordinate the winning plaintiffs’ injunction remedy to money damages.Both the Boomer decision and the Cathedral article undervalue public health and environmental protection. This mindset militates against robust and effective private-law remedies for defendants’ environmental torts. In addition, the Cathedral article’s four-rule organization and vocabulary are confusing and misleading. In particular its Rule 1) over-emphasizes the effect of an injunction, which, if the defendant breaches, will usually lead to compensatory contempt and a money award that converts a so-called “property right” into a so-called “liability right.” Behavioral economists’ studies and recent events have undermined and qualified many of the market-economics theories in the Cathedral article. This draft favors a flexible and pragmatic common-law technique instead of the law-and-economics analysis that favors awarding a nuisance-trespass plaintiff damages over an injunction. Moreover, the draft maintains that the economists’ presumption of nuisance-trespass parties’ post-injunction negotiation leading to an excessive coerced money settlement is overstated and should yield to more particularized and contextual analysis.This draft maintains that the Cathedral article’s four point array of remedies solutions is both too long and too short. Rule 3) is the liability decision that doesn't belong in a remedies analysis at all. Rule 4)’s plaintiff-pays solution destabilizes property rights and should be abandoned in private litigation. Rule 2)’s preference for damages over an injunction should be a rare remedy. Analysis of the trespass and nuisance injunction should study structural litigation’s injunctions and emphasize flexibility and equitable discretion, in short a broadened Rule 1). Other remedies, punitive damages and restitution, should also be considered as viable options. Taking earlier Legal Realists cue, this article seeks to replace theory with a more functional approach. By arguing in this draft for more and more detailed injunctions, the author hopes for augmented environmental protection and private-law remedies against global warming and climate change.

The Empire Fracks Back: The Case for Hydraulic Fracturing Strict Liability in New York

The possibility that New York will allow high-volume hydraulic fracturing in the near future raises the issue of liability for environmental and other extraction-related harms. Given the potential risk, New York courts should consider treating natural gas exploration under a strict liability regime. Natural gas producers facing strict liability for drilling mishaps would be forced to internalize the environmental and other social costs inherent in the drilling process, thus incentivizing producers to exercise a maximum of care.

Hydrofracking and Policymaking in New York Municipalities

High Volume Hydraulic Fracturing (commonly referred to as fracking'' or hydrofracking'') is a contentious issue playing out in localities across the country. In New York State, politicians and courts have upheld the rights of local governments to prohibit shale gas development within their limits. In this paper, I examine land-use decisions toward hydraulic fracturing in municipalities across New York State. I find that the partisanship of local officials does not mediate the demands of pro-fracking and anti-fracking interest groups. Localities with pro-environment and higher socioeconomic status interests are more likely to pass a ban or moratorium on hydraulic fracturing. The supply of water in a municipality, which could be contaminated by gas drilling, does not by itself influence local action toward fracking, but it motivates anti-fracking interests. Most surprising, I find that in municipalities that stand to gain economically from gas drilling, protection of farmland leads to prohibitions on hydrofracking.

Tackling the Interplay of the Web and the Long-Arm Statute, among Other Issues

This article discusses four significant opinions handed down by the New York Court of Appeals during its 2011–2012 term that resolved important issues pertaining to the application of four CPLR provisions: In Simon v. Usher, 17 N.Y.3d 625 (2011), the Court concluded that CPLR 2103(b)(2)’s five-day extension for service of a paper by mail is triggered when a defendant serves its demand to change venue by mail, and then subsequently moves to change venue. The Court, in Cadichon v. Facelle, 18 N.Y.3d 230 (2011), was tasked with interpreting the parameters of CPLR 3216, which allows a court to dismiss, sua sponte, a party’s pleading for the party’s failure to timely serve and file a note of issue. CPLR 217’s four-month statute of limitations, which begins to run the moment that an administrative decision becomes “final and binding,” arrived before the Court in Kahn v. NYC Dept. of Educ., 18 N.Y.3d 457 (2012) in the context of an Article 78 proceeding challenging the termination of plaintiffs’ probationary employment at the City of New York’s Department of Education, with bad news for the plaintiffs. The Court, once again, in SPCA of Upstate New York v. Am. Working Collie Ass’n, 18 N.Y.3d 400 (2012), undertook the task of defining the contours of New York’s long-arm statute, CPLR 302, in the context of an action involving defamatory statements made on the Web. The eventual holding highlighted the Court’s discord, which has been demonstrated by several split decisions such as this one.

The Story of Rizzo: The Shifting Landscape of Attempt Law

People v. Rizzo, 158 N.E. 888 (N.Y. 1927), the case of a bunch of incompetent would-be robbers who never quite found their victim, is one of the great icons of attempt law and of criminal law generally. The prosecutor had plenty of evidence that the defendants were trying to find a payroll agent who was to deliver wages at a construction site, but they spent hours driving around the Bronx in futile pursuit of their prey, and spotted by the police, were arrested just before the intended victim showed up. In reversing the conviction for attempted robbery, the New York Court of Appeals held that the conduct of the defendants fell short of the line that divides preparation from attempt — although it also offered the police perhaps unwelcome congratulations for their vigilance. This chapter in Criminal Law Stories (Donna Coker & Robert Weisberg, eds., 2012), recounts the background of the Rizzo case and narrates the trial itself, which, amid a fair amount of comedy, offers a useful picture of late 1920s law enforcement and trial practice. But the chapter also views the opinion as doctrinally important. In holding that the defendants’ conduct was not “so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference,” the court reflects such defense-friendly tests as the “physical proximity doctrine,“ the “dangerous proximity doctrine,” or the “indispensable element test.” Not long after this decision, American law saw the advent of the MPC’s “substantial step” test, which, by putting much more emphasis on the manifest subjective mental state of the defendant, is much more prosecution-friendly and might have meant a victory for the state in Rizzo. On the other hand, the case also illustrates how substantive crime definitions interact with, and are sometimes contingent upon, rules of criminal procedure. In Rizzo, the strong evidence of the defendant’s intent came from police actions that might now barred by the Warren Court search-and-seizure and confession law, as well as the law addressing cross-admission of confessions in joint trials of accomplices.

The Marriage Cases - Reversing the Burden of Inertia in a Pluralist Constitutional Democracy

The California Supreme Court has replaced the New York Court of Appeals, the federal Court of Appeals for the Second Circuit, and the U.S. Supreme Court as the court at the cutting edge of many issues in American public law. The process of displacement probably began long ago, perhaps as early as 1948, when the California Supreme Court’s decision in Perez v. Sharp became the first appellate decision to recognize that state bars to interracial marriage are unconstitutional. That landmark decision has been followed by a steady stream of others. The latest such decision is In re Marriage Cases, in which a closely divided (4-3) court held that the State’s exclusion of same-sex couples from civil marriage violated the state constitution’s equal protection guarantee. Chief Justice Ronald George’s opinion for the court in the Marriage Cases was significant for three reasons. First, and most important, was the holding: the State could not constitutionally bar same-sex couples from civil marriage. California was not only the second state to recognize same-sex marriage in this way, but was the grand prize for the same-sex marriage

A Precedent Built on Sand: NorCon v. Niagara Mohawk

Under the common law, a contracting party could only demand assurance of performance if the other party was insolvent. If a party had reasonable grounds for insecurity, the UCC §2-609 allowed it demand adequate assurance even if the counterparty were solvent. The Restatement (Second) adopted the same rule for non-goods. In NorCon v. Niagara Mohawk the New York court extended the adequate assurance doctrine for some non-goods contracts. Although the decision seems to imply that there is some relation between the NorCon facts and its conclusion as to the law, there is none. Relying primarily on material available to the court, this paper examines the contract, the context in which it was written, and the events precipitating Niagara Mohawk’s insecurity. While Niagara Mohawk’s insecurity was no doubt justified — NorCon would almost certainly have walked away from its obligation for the last ten years — the assurance question had been a major issue in negotiating this contract, and in similar contracts involving Niagara Mohawk and other public utilities.

No Standing Room: How Lender Collective Action Subverts Basic Principles of Contract Interpretation

Large, predominately asset-backed financings are seldom undertaken by a single lender. Most commonly, a lead lender will distribute the risk associated with such ventures by selling interests in the loan to other lenders. If the loan is “syndicated,” an administrative agent will usually be elected to manage the loan on behalf of the lenders. In the wake of the 2008 financial crisis, and in particular, with the rise of commercial mortgage defaults, bank syndicates have faced increasing opposition from member lenders seeking to challenge the decisions of the administrative agent. In response to these challenges, the doctrine of Lender Collective Action has arisen. In New York, Lender Collective Action has been asserted to compel unified action and quash minority dissent. In essence, the doctrine has stripped member lenders of their standing to assert rights or remedies under the credit documents. Unfortunately, in applying the doctrine, courts have abandoned traditional principles of contract interpretation. This Note argues that the doctrine, although appealing, should not be asserted in order to undermine a member lender’s traditional rights and remedies at law. To the extent that New York courts have used the doctrine to reason that lenders may impliedly waive such rights, this Note will take the position that Beal Savings Bank v. Sommer should be overturned.

Socio-Economic Rights: Adjudication Under a Transformative Constitution (review)

Reviewed by: Socio-Economic Rights: Adjudication Under a Transformative Constitution Elizabeth Brundige, Adjunct Professor and Associate Director Avon Global Center for Women & Justice (bio) and Sital Kalantry, Associate Clinical Professor of Law and Director of the Cornell International Human Rights Clinic (bio) Sandra Liebenberg , Socio-Economic Rights: Adjudication Under a Transformative Constitution (Juta & Co. Ltd., 2010), 541 pages, ISBN 9780702184802. I. Introduction The South African Constitution is heralded for the broad protections it affords social and economic rights. In Socio-Economic Rights: Adjudication under a Transformative Constitution, Professor Sandra Liebenberg offers a thoughtful examination of the socioeconomic rights jurisprudence developed by South African courts since the adoption of the country's current constitution fifteen years ago. In meticulous detail, she describes how the jurisprudence of the Constitutional Court and other South African courts has evolved in the area of socioeconomic rights. At the same time, she offers an incisive critique of this jurisprudence, identifying how it has too often been shaped by a narrow and formalistic conception of rights that overlooks their social justice purposes and reinforces deeply unequal social and economic relationships. Finally, Liebenberg offers suggestions for the future development of this jurisprudence in ways that would be more consonant with the transformative purposes of the South African Constitution.1 This nuanced and engaging account stands as a masterful reference work for scholars and legal practitioners interested in the development of South Africa's socioeconomic rights jurisprudence. At the same time, the very detail and comprehensiveness of the book's discussion of this jurisprudence tends, in some places, to overshadow Liebenberg's normative analysis. Additionally, it is not always readily apparent, particularly to readers who are not well-versed in South African case law, where the book's descriptive passages end and Liebenberg's prescriptions begin. However, the normative proposals that Liebenberg offers are both principled and practical, and they make an important contribution to global debates about how courts can and should give effect to social and economic rights. Among other things, Liebenberg points out the challenges that South African courts have encountered in deciding cases involving socioeconomic rights. South Africa's constitution is unique in its robust protection of a wide array of socioeconomic rights,2 express commitment to substantive equality and social justice,3 embrace [End Page 579] of international and foreign law,4 and horizontal application of rights to disputes between private parties.5 Nonetheless, courts around the world confront many of the same challenges South African courts have dealt with when they seek to enforce socioeconomic rights. We focus on three of the most salient problems and demonstrate how a court in another country (the New York Court of Appeals) has wrestled with and addressed these challenges. We also discuss Liebenberg's prescriptions for how courts should engage with these issues. First, courts have struggled with creating an appropriate framework to evaluate government policies (or lack of policies) with regard to socioeconomic rights. In adjudicating socioeconomic rights cases, courts must develop a vision of the appropriate approach the government should take. Courts are reluctant to do this for a host of reasons, including a belief that such work is inconsistent with the role of the judiciary. Second, if a court does determine that a government action or inaction violates the constitution, then it encounters difficulty in crafting appropriate remedies, in part because the appropriate remedies in these cases often impact many individuals and require potentially sweeping policy changes. Linked to both of these points is a set of challenges relating to the doctrine of separation of powers. When courts adjudicate cases that affect budgets or have wide-scale impact, they confront internal and external concerns about the decision's potential to impinge upon the authority of the legislative or executive branch of government. Courts in the United States, not generally known for their receptivity to socioeconomic rights, have addressed these challenges in the context of the right to education. Because the US national constitution does not guarantee socioeconomic rights, international scholars and practitioners rarely look to American jurisprudence when comparing approaches to socioeconomic rights adjudication. However, the constitutions of all US states but one include right-to-education provisions.6 This essay focuses on...

Rufus W. Peckham and the Pursuit of Economic Freedom

Rufus W. Peckham and the Pursuit of Economic Freedom JAMES W. ELY, JR.* It is striking that Rufus W. Peckham has received so little scholarly attention and remains without a biography. He was, of course, the author ofLochner v. New York (1905),' one ofthe most famous and contested decisions in the history of the Supreme Court. Moreover, Peckham wrote important opinions dealing with contractual freedom, anti-trust law, eminent domain, dormant commerce power, and the Eleventh Amendment. Indeed, Owen M. Fiss maintains that Peckham and DavidJ. Brewerwere intellectual leaders ofthe FullerCourt, “influential withinthe dominant coalition and the source ofthe ideas that gave the Court its sweep and direction.” Even when they did not prevail, Fiss observed, Peckham and Brewer “set the terms for the debate.”2 Why has such an influential jurist been so conspicuously overlooked in the historical literature? One might be tempted to explain this neglect in terms of the disdain that many scholars feel toward the jurisprudence of the Gilded Age, with its emphasis on economic liberty and limited government. It is an old adage that winners write history. Scholars who view the work of the Supreme Court through the lens of the Progressive and New Deal mind-set would likely have little sympathy for Peckham.3 After all, he was skeptical about much of the legislation associated with the Progressive movement and strenuously rejected the emerging statist liberalism. While, no doubt, this is a partial expla­ nation, it is not ultimately persuasive. Other leadingjurists ofthe late nineteenth century— StephenJ. Field,4 Melville W. Fuller,5 Brewer,6 Thomas M. Cooley7—have received consider­ able scholarly attention. Eventhe controversial Lochner decision has been the subject ofrevi­ sionist and more sympathetic accounts in re­ cent years.8 So we are left with an unresolved question as to why Justice Peckham lingers in relative obscurity. I propose in this article to take a fresh look at Peckham’s career and assess his signature issue, a commitment to liberty of contract. Background Born in 1838 in Albany, New York, Peckham was part of a family ofprominent lawyers and judges. Indeed, in many respects Peckham’s THE PURSUIT OF ECONOMIC FREEDOM 23 early career followed in the footsteps of his father. The elder Peckham was a district attor­ ney, a member ofCongress, and served on both the New York Supreme Court and the Court of Appeals. Rufus Peckham was educated locally and studied law in his father’s office. He was admitted to the New York bar in 1859. Joining the family firm, Peckham built a successful practice representing the Albany and Susque­ hanna Railroad, a local bank, and real estate interests. Peckham was very active in Democratic party affairs and in 1868 he was elected district attorney forAlbany County, a post that he held for three years. From 1881 to 1883 he was cor­ poration counsel for the City of Albany. Par­ ticipating regularly in Democratic party con­ ventions at both the national and state level, Peckham emerged as a leading spokesman for upstate Democrats in their struggle to prevent domination of the party by Tammany Hall, a New York City-based political group. He formed a close friendship with Grover Cleve­ land, and actively supported Cleveland’s rise in New York political life. In 1883 Peckham was elected to the New York Supreme Court. Three years later, then-President Cleveland helped to engineer Peckham’s election to the New York Court of Appeals. Court of Appeals During his nearly ten years on the appellate bench, Peckham proved to be an able judge who avoided partisanship. He authored more than 300 opinions for the Court on a wide va­ riety of private law topics, including property, torts, contracts, and wills. Peckham wrote only eight dissenting opinions, but dissented more than 80 times without opinion. For our pur­ poses, however, Peckham’s opinions raising constitutional issues are of special interest. He demonstrated skepticism about governmental regulation ofthe economy, an aversion to class legislation, and a disposition to define liberty as encompassing economic freedom. Since Peckham carried these views with him to the Born in Albany in 1838, Rufus Peckham studied law at his father’s firm for two years before passing...

Enforcement of International Arbitration Awards in New York: If You Take Them There, You Can Collect from Anywhere

As many parties find out the hard way, the value of an arbitration award often depends on whether a losing party is solvent and, if so, how easily its assets can be located, attached and used to satisfy an award. This article discusses recent developments in New York that may assist parties in obtaining satisfaction of arbitral awards rendered in their favour, wherever the arbitration may be located, and however disconnected the parties and the dispute are from New York. The analysis begins with the New York's pre-award attachment statute, section 7502(c) of the New York Civil Practice Law and Rules ( CPLR ). The article discusses a recent decision, Sojitz Corp. v. Prithvi Info. Solutions Ltd. ,1 granting a pre-award attachment of assets located in New York, despite the fact that the anticipated arbitration was between two foreign parties, neither of whom were subject to personal jurisdiction in New York, and concerned a purely foreign dispute. Next, the article turns to the post-award phase, and discusses the decision in Koehler v. Bank of Bermuda Ltd. ,2 which addressed the power of New York courts to order entities subject to their jurisdiction – including non-parties to an underlying arbitration – to deliver assets into New York for purposes of attachment and execution by a judgment creditor. The article concludes by noting the potential application of the latter principle to the former situation: that is, whether assets located outside New York, but in the custody of an entity subject to the jurisdiction of New York courts, can be subject to pre-award attachment. Given the status of New York as a global financial centre, and the attendant likelihood that parties to international arbitrations will have assets either within the jurisdiction of New York or in the custody of institutions subject to New …