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 statute is far preferable to the new quasi in rem jurisdiction. Indeed, given its reliance on attachment, its limited res judicata effect, and its vague and uncertain standards, the new quasi in rem jurisdiction may very well be unconstitutional and is surely bad policy. Moreover, the manner in which the new quasi in rem jurisdiction has been unilaterally forged by courts violates separation of powers. This Article argues, therefore, that state courts should not succumb to the temptation to embrace the new quasi in rem jurisdiction, and that it should be repudiated in New York and the other states that follow it. This Article is divided into three parts. Part I discusses the development of quasi in rem jurisdiction, and examines the Supreme Court's decision in Shaffer. Part II surveys the use of quasi in rem jurisdiction in the states since Shaffer. It traces and analyzes the growth of the new quasi in rem jurisdiction doctrine, considers the causes of this development, and contrasts the new doctrine with the developments in the large majority of states that have not used quasi in rem jurisdiction since Shaffer. Part III considers the contemporary validity of quasi in rem jurisdiction, and demonstrates that it is no longer a valid jurisdictional device. The Article concludes that the new quasi in rem jurisdiction threatens to resuscitate a doctrine that, after honorable service, deserves retirement.
Michael B. Mushlin, The New Quasi in Rem Jurisdiction: New York's Revival of A Doctrine Whose Time Has Passed, 55 Brook. L. Rev. 1059 (1990), http://digitalcommons.pace.edu/lawfaculty/465/.