Aug. 26, 2003
Dear David,
I don't
know the answer to your question, but if a securities case arose by way
of counterclaim in a state-law case just after James Beam, I can't
imagine that the Supreme Court would limit to federal courts James Beam
& its insistence on retroactivity. So counterclaims timely when
pleaded in state court, like the claims that were timely when filed in
federal court, would become worthless. When Congress tried to fix
the problem, as I recall, it got hit with Plaut. The
counter-argument is that, if the state never applies civil case law
retroactively, except in the very case in which a new rule is declared,
then this may constitute an "otherwise valid
excuse." (I can't imagine why my hypothetical defendant
is working so hard to stay in state court.)
Best,
louise
At 09:37 AM 8/26/03, you wrote:
i am wondering whether anyone knows
of articles or cases that address
whether state courts are required by article VI to consider on the
merits
cases that rely on new rules, in either the criminal or civil
context. it
seems to me that a state could refuse to entertain such actions,
under
testa, by taking the position that the constitutional value of finality
is
a sufficient state interest, but i am wondering whether this (or
any
related) argument has been addressed in cases or scholarship.
-- d.dow
