Friday, May 20, 2022

“Suppose This Were a Normal Law”—S.B. 8 Oral Arguments in the Pre-Post-Roe World

By Alice Broussard
Alice Broussard is a member of the class of 2023 at Albany Law School. She previously worked in publishing and education, and she graduated cum laude with a bachelor’s degree in English from Rice University.
At Albany Law, Alice is a member of the Albany Law Review and will serve as Executive Managing Editor of Vol. 86. She has been a Sponsler Fellow in Civil Procedure and is currently a Teaching Assistant in Lawyering. She interned with Judge Lawrence E. Kahn in the Northern District of New York during the summer of 2021 and is currently an intern at Empire Justice Center.



In May 2021, the Supreme Court agreed to consider a Mississippi law seeking to ban abortions after fifteen weeks. The state’s initial briefs, filed while Justice Ruth Bader Ginsburg was still alive, claimed nonsensically that “the questions presented in this petition do not require the court to overturn Roe or Casey.” In July, with Justice Amy Coney Barrett installed as part of the Court’s new 6–3 conservative majority, Mississippi filed a new brief: “Roe and Casey are egregiously wrong.” The case was argued in December, and a decision is expected this year.
 
But Texas, with the Court’s help, beat Mississippi to the punch. On September 1, 2021, a Texas law known as S.B. 8 went into effect. The law bans abortions after just six weeks or, ostensibly, when a fetal heartbeat is detected by ultrasound. Unlike previous heartbeat bills, S.B. 8 was written to evade judicial review by delegating enforcement to private citizens. This paper examines the S.B. 8 oral arguments in Whole Woman’s Health v. Jackson and United States v. Texas through the lens of judicial advocacy and, from the vantage of December 2021, briefly looks ahead to the consequences of the Court’s decisions.
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To read the paper, open HERE.

Sunday, May 8, 2022

Third Parties in the Judicial Nomination Process: the Federalist Society and the Liberal Response

By Nicholas A. Alfano
Nicholas Alfano is a current 2L at Albany Law School. He graduated from Seton Hall University, where he majored in Political Science and Philosophy and minored in Economics. Nicholas is a founding member of the Catholic Law Students Association where he currently serves as treasurer. He has previously interned with the NYS Division of Consumer Protection’s Utility Intervention Unit.


In recent years, one of the most contentious issues in American politics has been judicial appointments. In the 2016 and 2020 presidential elections candidates, Donald Trump and Joe Biden promised who they would appoint to the judiciary. However, while Biden promised appointments of various professional and demographic backgrounds, Trump declared his judicial appointments, saying he would choose them by an outside group: the Federalist Society. The Federalist Society is an organization of libertarian and conservative lawyers that promote originalist and textualist interpretations of the Constitution and the law.
 
The Federalist Society is one of the most influential groups within the Republican Party, both allied in promoting legal conservatism. All three of Trump’s Supreme Court appointments were Federalists. The Federalist Society facilitates a robust network of conservative lawyers and legal activists for the Republicans to draw from for various positions, be it jobs within the legislature and executive or the judiciary (and many times both, with Brett Kavanaugh as the premier example). The Federalist influence on the court has had some noticeable effects. The tribunal took a rightward turn and became younger and less experienced but more connected with other legal conservatives.
 
Conversely, there exists no direct analog for Democrats and liberal lawyers, though not for lack of trying. Led by the American Constitution Society, liberals have been attempting to recreate the network the Federalists have built. Still, these efforts have not managed to rival the Federalists in reach and prestige so far, and, in the same token, this is due to several factors, including the lack of an attractive legal doctrine alternative to originalism and textualism. As such, liberals have advocated for other means to rebalance the courts, including court-packing and quick appointment of judges.

To read the paper, open HERE.

Sunday, April 3, 2022

Brown v. Board of Education: How the Decision-Making Process Influenced the Ruling

By Taylor Farrier 
Taylor Farrier, a current third-year student at Albany Law School, grew up in Queensbury, NY. Prior to attending Albany Law, she earned her bachelor’s degree from the University at Albany in 2019, where she majored in Political Science and minored in Criminal Justice.
At Albany Law, Taylor is a member of the Phi Alpha Delta Law Fraternity and the Business Law Society. She interned with the Warren County District Attorney’s Office in the summer of 2021 and for the Honorable Kathleen B. Hogan for the New York Court of Claims in the summer of 2020. She wrote this paper for Professor Bonventre's Supreme Court Seminar.


There is no denying that Brown v. Board of Education is one of the most monumental cases in all of American judicial history. Overturning Plessy v. Ferguson was a long and hard-fought battle during the late nineteenth and early twentieth centuries. Following the Civil War, the equality that black individuals in the United States had long fought for didn’t arrive as seamlessly as many may have hoped. Even following the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments, the country still had a long way to go in the process of constitutional equality between blacks and whites. 

While Brown v. Board of Education was undoubtedly a significant case, the unanimous decision of the justices doesn’t tell the whole story. Looking into the judicial philosophies of the justices on the Court during Brown, we get a deeper insight into how they were able to come to a unanimous decision. They did this despite differing ideologies and views, and how the judicial decision-making process influenced the outcome of the case. 
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To read the paper, open HERE.

Monday, February 14, 2022

Justice Thomas’s Critique of Qualified Immunity

An Originalist's Perspective on the Judicial Doctrine

By Patricia Whelan
Patricia Whelan is a current 2L at Albany Law School. Prior to attending Albany Law, she graduated from the Pennsylvania State University in 2020, where she majored in Criminology and minored in Sociology.
At Albany Law, Patricia is a member of the Albany Law Review, the Chief Justice of the Phi Alpha Delta Law Fraternity, and the ABA At-Large Senator for the Student Bar Association. She has interned for the Third Judicial District Town and Village Courts Unit and served as the Law Student Liaison for the ABA Section of State and Local Government Law from 2020-2021.
Patricia is now a Law Clerk at Pierro, Connor & Strauss, LLC.



Justice Clarence Thomas has prominently defended his take on originalism, which demands adhering to the text of the United States Constitution in a manner that is consistent with how it would have been understood or was intended to be understood at the time it was ratified in 1789. The judicial philosophy of originalism asserts that all text in the Constitution must be interpreted and applied based on historical accounts and the original understanding of the text. According to Justice Thomas, originalism is the best and most legitimate way to interpret the Constitution and other legal texts.

Over the course of his tenure on the Supreme Court, Justice Thomas has shaped his own unique approach to interpreting the Constitution and other texts, all the while keeping in line with the fundamentals of originalism. Justice Thomas supports the conviction that originalism is the jurisprudence most compatible with the American Government and the original intentions of the Founding Fathers. Moreover, he “rejects the notion… that the Constitution is a ‘living document’ and that Supreme Court justices should creatively adjust the meaning of its terms…”

This paper examines the relationship between Justice Thomas’ judicial philosophy of originalism and the doctrine of qualified immunity. This paper introduces the cultural and historical doctrine of qualified immunity through the originalist perspective and posits that the Court should reconsider the legitimacy of this judicial doctrine. Further, this paper argues that from Justice Thomas’ perspective, qualified immunity has a weak foundation in legal texts and at common law. From the premise that it is not well supported under the methodology of originalism, this paper discusses Justice Thomas’ concerns with the doctrine of qualified immunity and thus, the implications it has for his jurisprudence.
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To read the paper, open HERE

Saturday, January 1, 2022

Center Editorial Board, 2022-2023


Editor-in-Chief
Patricia T. Whelan is a third-year student at Albany Law School. Prior to attending law school, she earned her bachelor’s degree from Penn State, where she majored in Criminology and minored in Sociology. At Albany Law, Patricia is an Associate Editor of the Albany Law Review, a Board Member of the Elder and Disability Law Pro Bono Society, and the 3L Representative of the Business Law Society. As a second-year student, she was the Chief Justice of the Phi Alpha Delta Law Fraternity and the ABA Senator for the Student Bar Association. She was also a finalist in the 2021 Donna Jo Morse Client Counseling Competition. Patricia has interned for the Third Judicial District Town and Village Courts and served as the Law Student Liaison for the ABA Section of State and Local Government Law from 2020-2021. Currently, she is working as a law clerk at Pierro, Connor & Strauss.

Executive Editor
Deana DiBenedetto
 is a third-year student at Albany Law School. 
Prior to attending law school, Deana earned her bachelor’s degree from Saint Michael’s College, where she majored in Political Science, complemented by a minor in Crime and Justice. During college, Deana interned with the Greene County District Attorney’s Office, as well as the American Bar Association’s Government Affairs Office in Washington, D.C. 
Last year, Deana interned in the United States Attorney’s Office, Northern District of New York. Additionally, she participated in a Field Placement in the chambers of the Honorable Daniel J. Stewart. Deana was a quarterfinalist in the 2021 Donna Jo Morse Client Counseling Competition, and competed in the 2022 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition, in which she and her partner were finalists and received an award for their brief. Deana also won a best oral advocate award. 
This academic year, Deana is a teaching assistant for Professor Wetmore’s Evidence course, serves as Vice President of the Italian American Law Student Association, works as an ambassador for the Office of Admissions, and is involved in Albany Law Review. 

Executive Editor
Anthony Jenouri
 is a rising third-year law student at Albany Law School. Currently, he is a legal intern at both the Justice Center and Government Law Center. He also served as an intern at the law school’s Immigration Law Clinic, where he drafted habeas corpus petitions to help clients challenge their immigration detention. He was also a semi-finalist in the 2022 Donna Jo Morse Negotiations Competition.
Before law school, Anthony earned his bachelor’s degree from Binghamton University, where he majored in Philosophy, Politics, and Law. He also previously interned for Assembly Member Michael DenDekker at the New York State Assembly, where he served as clerk for the Consumer Affairs and Protection Committee. Upon graduation, Anthony hopes to pursue a career as a legislative counsel.

Executive Editor
Kelly Krull
 
is a second-year student at Albany Law School. Prior to attending Albany Law, she completed her bachelor’s degree in the 3+3 law program at Le Moyne College, where she majored in Political Science with a concentration in Pre-law. During her undergraduate career, she interned for a Judge at the Worcester District Court in Massachusetts. At Albany Law, she currently is a work study in the Information Technology Department. This next Fall 2022, she will be joining the Family Violence Litigation Clinic in Albany Law’s Justice Center. 

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For previous years' staffs, click HERE.  

Thursday, November 18, 2021

Chief Judge Stanley H. Fuld: Ahead of His Time

By George Lupe
George Lupe
 graduated summa cum laude from Albany Law School in May 2021. Prior to attending Albany Law, he graduated summa cum laude from SUNY Albany.
During his time at Albany Law School, George was a member of the Albany Law Review and a Teaching Assistant for Property Law. He also interned with Judge Kahn in the Northern District of New York during the summer of 2019 and with Seward & Kissel, LLP during the summer of 2020.
George is now a Law Clerk at the Seward & Kissel firm.


Many who are familiar with the New York Court of Appeals and its history would agree that Chief Judge Stanley Howells Fuld is one of the all-time greats. He had a brilliant approach to writing opinions, and he was never afraid to take a new and unique stance which would often end up moving the law forward in both New York and even the United States.

An analysis of his opinions in both conflict of laws and in criminal law will reveal his judicial philosophy. Chief Judge Fuld truly cared about what outcome would make the most sense and be most fair to the people. It is no wonder that the United States Supreme Court vindicated some of his dissents in the area of criminal law.

Fuld wrote opinions that would greatly influence both the New York Court of Appeals and the United States Supreme Court. He made an impact that still affects countless people in the American judicial system today.
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To read the paper, open HERE

Thursday, October 7, 2021

New York’s Gray on Investigative Stops

How the Court of Appeals has Restricted Stops of Citizens by Police

By Gerald P. Casertino
Gerald Casertino is currently an incoming associate with Murphy Burns LLP in Albany, New York, focusing on municipal defense and §1983 actions. He has also served as a police officer since 2017.
Jerry graduated summa cum laude from Albany Law School with his J.D. in 2021. He was a member of the Albany Law Review and a Sponsler Fellow/Teaching Assistant in Criminal Law, Torts, and Contract Law. He holds a bachelor’s degree, magna cum laude, from Siena College and is originally from Glens Falls.


The year 2020 will be lauded as forever changing policing, especially in New York State. But the necessity to curb criminal activity and ensure public safety remains.

High-profile police-related deaths, rising crime, and the implementation of bail and discovery reform, all combined with the New York Court of Appeals’ decision in People v. Hinshaw, make the job of police officers more difficult. This paper will address how the New York Court of Appeals has restricted investigative stops beyond what is required by the federal constitution.  
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To read the paper, open HERE

Monday, September 20, 2021

Understanding the Criticism of Roe v. Wade

 A Decision Exemplifying the Worst of Originalism and Legal Realism

By Nathaniel Clark
Nathaniel Clark is a third-year student at Albany Law School. Prior to attending law school, he earned his bachelor's degree from the University at Albany, State University of New York, where he majored in Emergency Preparedness, Homeland Security, and Cybersecurity. Additionally, Nathaniel minored in Philosophy.
At Albany Law, Nathaniel is a member of the Albany Law Review. He has interned with the New York State Office of the Attorney General and Magistrate Judge Christian F. Hummel of the Northern District of New York. He is currently a law clerk at the law firm of O’Connell & Aronowitz, P.C.



How should a judge decide a case? It seems the most basic of questions—if it is unclear to the presiding judge how a case should be decided, it seems a fool’s errand to ask attorneys to present arguments to persuade that judge, or to expect any consistency from the rule of law. And yet, the method by which a judge should render a decision in a case is the subject of significant debate. Some theorists suggest that a judge should make his decision by looking to the original meaning of the text of the statute at issue and applying the words of the statute as they meant when written to the case at hand. Others, however, argue that the ultimate duty of a judge is to weigh “the social advantage” of the laws at issue. Naturally, this dispute over the role of the judge has led to dispute over the decisions handed down by judges.

One of the most disputed decisions handed down by a judge in the 20th century is the Supreme Court’s decision in Roe v. Wade, which identified a fundamental right to privacy and held that it encompassed a woman’s decision as to whether or not to terminate her pregnancy, with some limitations. A decision such as this, which has developed into a lightning rod case about which Supreme Court nominees and political candidates are questioned, is an interesting case study on the process of judicial decision-making. Examining the judicial theories used in such a key decision, and whether those theories were followed, gives key insight into the process by which a judge decides a case.

This paper will examine Roe through the lens of legal realism, as enumerated by Justice Oliver Wendell Holmes, Jr., and originalism, as explained by Justice Antonin Scalia, in an attempt to understand why the decision has remained divisive from a legal perspective, independent of its substantive ruling. I will argue that this divisiveness stems from the fact that it is representative of the worst of both judicial decision-making theories, as it attempts to ground its findings in history but makes an incorrect historical analysis, and it sets out to follow Holmes’ method of legal realism but goes too far in its judicial legislation.
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To read the paper, open HERE.

Monday, August 23, 2021

Judith Kaye Has an Opinion Too: A Unifier’s Guide to Dissenting

By Alison C. Beck
Alison Beck graduated cum laude from Albany Law School in May 2021. Prior to attending law school, she graduated magna cum laude from St. John Fisher College in Rochester, NY with a B.A. in English and Legal Studies.
During her time in law school, she worked as a law clerk at NYSUT before heading to the New York State Legislature. Alison worked in the Assembly Minority Counsel's Office before landing a position as a law clerk in the Senate Minority Counsel's Office.
She also worked as a research assistant for Dean Rosemary Queenan and participated in the Domenick L. Gabrielli Appellate Advocacy Competition. However, her real claim to fame in law school has been her ability to "name that tune" in Professor Patrick Connors' classes.
Alison is currently an associate counsel at the New York State Senate Minority Counsel's Office.



There exists a double standard for women in the law, often seen as too aggressive or too emotional. New York Chief Judge Judith Kaye, known for her kindness and compassion, was likely stereotyped as the latter type of lawyer. Her judicial opinions often incorporated passionate and heartfelt language. This wasn’t a bad thing though; it also made her writing more powerful. Her desire to avoid division on the court exemplifies the level of sincerity and commitment she had to her beliefs when she dissented.

Kaye acknowledged throughout her life that she was always a writer first, that she went to law school only with the hope of landing a job at a newspaper or magazine company. The writings of a journalist have a particular gumption, their personal views and passions seem to seep through no matter what. In dissecting Judge Kaye’s writing—mainly her dissents, but also a few majorities where appropriate—I analyzed the pillars of her judicial identity and how they reflect traditional gender norms. What seeped through was a desire for fair and equal treatment under the law, compassion and understanding for the background of the parties, and a fierce defense of the defenseless.
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To read the paper, open HERE.