Sunday, April 5, 2015

Does Gender Impact Judicial Decision Making?

By Lindsay N. Zanello
Lindsay Zanello is a third year law student at Albany Law School. She graduated from Boston College in 2005, double majoring in Sociology and Human Development. In 2009, Lindsay received her Master’s Degree in Criminal Justice from Boston University. She was previously a paralegal with the United States Attorney’s Office for the Northern District of New York.
Lindsay currently serves as Executive Managing Editor of the Albany Law Review and is a law clerk at O’Connell & Aronowitz.
Following graduation, Lindsay will serve as a law clerk on the New York Court of Appeals Central Legal Research Staff.
This paper, discussing the impact of gender on judicial decision making, was prepared for the Judicial Process Seminar in the fall of 2014.

What role does gender play in judicial decision making?

Some scholars and judges have said that it affects overall judicial decision making, even proclaiming a "woman’s voice.” Justice Sandra Day O’Connor, however, has frowned upon this kind of analysis, noting that “questions about whether female judges reasoned in a ‘different’ voice [are] ‘dangerous and unanswerable.’”

Who is correct? Is it the feminine perspective that causes judges to vote certain ways or does gender not play a role at all? Perhaps it is the combined totality of one’s experiences. What about the impact of female judges on the bench as a whole?  Does having female judges on the bench affect their male counterpart’s decisions? This paper explores these very issues.
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To read the paper, open HERE.

Supreme Court of Kentucky: Dual Sovereignty Approach to State Constitutional Law

By Michelle K. Piasecki
Michelle Piasecki, a 2013 summa cum laude graduate of Albany Law School, is an associate at the law firm of Couch White LLP, in Albany, New York, and primarily practices in the fields of energy and environmental law.
While at Albany Law, Michelle was a research assistant for professor Timothy Lytton.  As a member of the Albany Law Review, she served as Executive Editor for State Constitutional Commentary during her third year. She also served as the Executive Editor for the Center.
This essay--the latest of several papers to be published by the Center--was originally prepared for the State Constitutional Adjudication Seminar.


State supreme courts across the country approach state constitutional adjudication in different way. Some look primarily to their own state law, some primarily--and some, only--to federal law, and others equally to both or simply make no distinction between the two.

The Supreme Court of Kentucky applies the so-called "dual sovereignty" method. For example, in Riley v. Gibson (2011), a Jefferson Circuit Court Judge had held a closed hearing to determine if a member of the jury was in contempt of court for disobeying the judge’s order to “avoid publicity about the case.”

In issuing its decision, the Supreme Court of Kentucky analyzed both federal and state law without specifically relying on one or the other. Several other recent decisions by the Kentucky Supreme Court produced similar results.
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To read the essay, open HERE.

Tuesday, March 3, 2015

Observing and Learning from the Court of Appeals

Lessons Learned Studying New York’s High Court
By Michael L. White
Michael White, a 2014 cum laude graduate of Albany Law School, graduated magna cum laude from the State University of New York at Plattsburgh with a Bachelor’s degree in Political Science.
While in law school, Michael served as the Executive Editor for Symposium for the Albany Law Review. He also won the award for best oral advocate in the Domenick L. Gabrielli Appellate Advocacy Moot Court Competition, and he was selected to represent the law school in a national moot court competition in Virginia. Additionally, he worked for the United States District Attorney’s Office for the Northern District of New York and he completed an internship with the City of Albany’s Law Department.
Michael has begun his legal career at Martin, Harding & Mazzotti, LLP, which he views as a great fit for his experience and his passion to help people—especially in times when they need an advocate most to protect their rights.
He prepared this essay based upon an independent study he undertook in his last semester in law school, part of which involved joining the Court of Appeals Intensive seminar's visits to the state's high court and meeting with its Judges.

This paper will highlight the lessons that I learned in my final year at Albany Law School studying effective oral advocacy techniques and the judicial process.  Much of what I learned came from an independent study I undertook which included visits to New York’s highest court, with the Court of Appeals Intensive seminar, in my last semester at the law school. Those visits gave me the opportunity to observe oral arguments and listen to Court of Appeals judges who spent time with the class explaining what they perceive their role to be as Judges on the high court.

While speaking to our class, Chief Judge Lippman made an interesting point about the effect advances in technology have on a judge’s role in shaping or interpreting law.  Chief Judge Lippman stressed the importance of how societal changes, technological advances, and other policy factors should all be considered when a judge, particularly on a state’s high court, is deciding an issue.

Take for example the Matter of Empire Center for New York State Policy v. New York State Teachers' Retirement System case (23 NY3d 438 [2014]), where at issue was the disclosure of the names of public employees who received a pension from the state.  To de-emphasize the privacy concerns, some of the judges were making a point through their questioning that most of the information that was sought to remain exempt from disclosure might already be searchable on the internet.  The judges seemed to be aware of the privacy concerns, but also cognizant of the lower expectations of privacy people now have with the advent of Facebook, Twitter, and other social media sites.  This balance between the cherished right to be “let alone” and the emerging world of social media reminded me of one of Chief Judge Lippman’s most famous and oft cited rationales.

Saturday, January 31, 2015

American Law Is Not Moral, Only Ethical

By Kimberly Waldin
Kimberly Waldin, a third year student at Albany Law School and an Executive Editor of the Center, holds a B.A. from Russell Sage College, where she graduated magna cum laude in 1998.
Prior to law school, Kimberly was a visual and performing arts instructor for several nonprofits, working primarily as an Education Consultant for the New York State Theatre Institute for fifteen years. Currently, Kimberly is a Student Assistant for the Office of Children and Family Service, Office of the Ombudsman.
During her time at Albany Law School, Kimberly has been the recipient of the New York Bar Foundation's 2014 Judge Bernard S. Meyer Scholarship for her essay entitled, "Trash: Getting Rid of Unwanted Children through "Private Re-Homing,'" as well as the 2013 and the 2014 Hon. Robert G. Main, Sr. and Robert G. Main, Jr. Legal Scholarship.  Kimberly is also a Senior Editor for the Albany Government Law Review.


Where a crime is considered malum in se—a crime universally recognized to be wrong and “inherently immoral” —the overlap between ethics and morality is apparent.  But it is in the arena of malum prohibitum—where “an act . . . is a crime merely because it is prohibited by statute, although the act itself is not necessarily immoral” —that different, reasonable minds can find the act to be either right or wrong or perhaps a little of both.   This is where the nuance of morality versus ethics becomes important and equally misunderstood.
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To read the paper, open HERE.

Tuesday, January 20, 2015

The Appointment of Justice Stein

Defying History and Changing the Court of Appeals

By Joseph O'Rourke
Joseph O’Rourke is a third year law student at Albany Law School. He graduated magna cum laude from Siena College in 2012, majoring in Political Science and minoring in Philosophy. Joseph currently serves as Editor-in-Chief of the Albany Law Review, and has previously interned with Young/Sommer LLC and the Honorable Thomas J. McAvoy of the Northern District of New York.
This paper, comparing New York Court of Appeals nominee Justice Leslie Stein with former associate judge Victoria Graffeo, was prepared for the Judicial Process Seminar, Fall 2014.

[Following graduation, Mr. O'Rourke will serve as a law clerk on the Court of Appeals’ Central Legal Research Staff. Of course, the views expressed in his paper are his alone and in no way reflect those of the Court.  vmb]   


On October 17, 2014, New York Governor Andrew Cuomo made his third nomination to New York's highest court, the Court of Appeals. The decision came just weeks before the election that determined whether Governor Cuomo would continue as governor for a second term, and it is proving to be the most controversial of Governor Cuomo’s first three selections for the Court. Controversial not because of whom the Governor selected, but rather who was passed over.

Governor Cuomo choose Appellate Division, Third Department Justice Leslie E. Stein, over Judge Victoria A. Graffeo, a sitting member of the Court of Appeals whose fourteen year term expired on November 29, 2014. The addition of Justice Stein, a Democrat, would shift control of the Court to Democrats for the first time in many years. Most notably, Stein's nomination by Cuomo marks only the second time in the thirty-five year history of the appointment system for the Court of Appeals where a governor failed to choose an eligible incumbent for reappointment.
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To read the paper, open HERE.

Thursday, November 13, 2014

New York’s Court of Appeals: The Internal Operating Procedures

By Sarah Engster
Sarah Engster, a third-year student at Albany Law School, graduated from American University in 2008 with an interdisciplinary studies degree in communications, law, economics, and government.
Prior to law school, Sarah worked as a Litigation Clerk for an intellectual property law firm in Washington, D.C.  While in law school, Sarah has interned with the Albany County Public Defender’s Office, and continues to intern at the Supreme Court, Appellate Division 3rd Department.
Sarah is currently an Associate Editor for the Albany Law Review, a student editor for the NYSBA Government, Law & Policy Journal, and a research assistant for Professor Patrick M. Connors.
Sarah prepared this paper for Prof. Bonventre's Court of Appeals Intensive Seminar, after which she was selected as this year's Editor-in-Chief for the Center.


New York’s court of last resort, the Court of Appeals, has been held throughout history as one of the most influential appellate judiciaries in the country. Since its creation by the Judiciary Article of the 1846 constitutional convention, the Court’s purpose has been to “unify, clarify, and pronounce the law” of New York.

In any appellate court, the study of judicial decision-making requires a thorough understanding of the substantive jurisdictional, statutory, and constitutional issues that may arise. It is at least as important to understand the personal and collegial dynamics among the justices and the internal procedures that guide them. Attorneys who hope to practice before the Court of Appeals would do well to inform themselves of the basic happenings within the red room and around the Court’s famed round conference table.

This paper focuses on the internal operating procedures that serve as the framework within which decision-making at the Court takes place. The paper also looks at the internal operating procedures implemented by other state high courts across the country.
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To read the paper, open HERE.

Posner’s Pragmatism: A Viable Method of Judicial Interpretation

By Joshua Greenfield
Josh Greenfield, a 2014 graduate of Albany Law, did his undergraduate work at Syracuse University studying Art History. Josh has interned at CBS's legal division and the New York Public Employment Relations Board. He has been a contributing member of the Center for Art Law website, writing on various issues in the field of art law. Currently, he is a Legal Fellow with the National Center for the Study of Collective Bargaining in Higher Education and the Professions at CUNY’s Hunter College.
Josh has been published by the Center previously (See Ginsburg (and sometimes Scalia) on Search and Seizure, Jan.19, 2014.
This paper was prepared for Prof. Bonventre’s Judicial Process Seminar.


How can one argue with a pragmatic approach to judicial interpretation? A pragmatist is, by definition, sensible and reasonable. However, what does this really mean? What makes a decision “pragmatic”? How can pragmatic decisions be “right” or “wrong”?

This paper explores the concept of judicial pragmatism, and how judges like Richard Posner approach the concept. It also examines how judicial pragmatism is defined and how it compares to other methods of judicial interpretation, such as originalism and why it is a viable method of interpretation.
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To read the paper, open HERE.

Monday, September 1, 2014

Center Staff for the 2014 - 2015 Academic Year

Director
Vincent Martin Bonventre

Student Editorial Board
Editor-in-Chief
Sarah Engster, a third-year student at Albany Law School, graduated from American University in 2008 with an interdisciplinary studies degree in communications, law, economics, and government.
Prior to law school, Sarah worked as a Litigation Clerk for an intellectual property law firm in Washington, D.C.  While in law school, Sarah has interned with the Albany County Public Defender’s Office, and continues to intern at the Supreme Court, Appellate Division 3rd Department.
Sarah is currently an Associate Editor for the Albany Law Review and student editor for the NYSBA Government, Law & Policy Journal. Sarah is also a research assistant for Professor Patrick M. Connors.

Executive Editor
Davinder Sahota, a third year student at Albany Law School, studied Criminal Justice as an undergraduate and holds a Master’s degree in Public Administration from John Jay College of Criminal Justice.
Davinder has enjoyed her internship at the Albany County District Attorney in the Appeals Unit. Last year, she was a year-long intern with the United States Attorney’s Office for the Northern District of New York.
She is currently a research assistant for Dean P. Andrews and Professor D. Pratt.  During the Summer in 2014, she interned with the Queen’s County District Attorney’s Office in Special Victims’ Unit.

Executive Editor
Kimberly Waldin is a third year student. She holds a B.A. from Russell Sage College, where she graduated magna cum laude in 1998.
Prior to law school, Kimberly was a visual and performing arts instructor for several nonprofits, working primarily as an Education Consultant for the New York State Theatre Institute for fifteen years. Currently, Kimberly is a Student Assistant for the Office of Children and Family Service, Office of the Ombudsman.
During her time at Albany Law School, Kimberly has been the recipient of the New York Bar Foundation's 2014 Judge Bernard S. Meyer Scholarship for her essay entitled, "Trash: Getting Rid of Unwanted Children through "Private Re-Homing,'" as well as the 2013 and the 2014 Hon. Robert G. Main, Sr. and Robert G. Main, Jr. Legal Scholarship.  Kimberly is also a Senior Editor for the Albany Government Law Review.

Editors: John Daley, Beau Melita, Calee Oas, Ryan Rennaker, Jessica Sorrendino, Peter Stroe

For previous years' staffs, click HERE,

Sunday, April 27, 2014

Judicial Selection: Accepting the Inherent Nature of Transactional Politics

By Patrick Kennedy
Patrick Kennedy, a third year law student at Albany Law School, graduated from the College of Saint Rose in 2011 with a Bachelor's Degree in History and Political Science and a minor in Philosophy. Patrick is interested in New York State politics and government, having interned with the New York State Executive Chamber while in law school. Previously, Patrick interned with the NYS Division of Criminal Justice Services, in the Offices of Assemblyman Phil Boyle and Congressman Paul Tonko, and with the New York City Office of State Legislative Affairs.
Mr. Kennedy has been published by the Center previously. (See Breyer on Religious Freedoms, Feb. 2, 2014.)
This paper and presentation were prepared for Prof. Bonventre's Judicial Process seminar, Fall 2013.

If you were to stop and ask someone on the street whether judges should be qualified, independent, and impartial, virtually everyone would answer in the affirmative.  It seems like common sense; such factors are touted as the cornerstones of a functioning judiciary.

However, if you were to dig a little deeper and ask what actually makes courts independent and impartial or what “qualified” actually means, you would get a plethora of different answers. If you narrowed the inquiry even further by asking specifically whether appointing judges or electing judges is more beneficial to judicial independence and impartiality, you would find advocates on both sides.

Should the judiciary be the “least democratic” of the three branches of government in not only the decisions judges issue from the bench, but when the judge assumes office from the get-go?
(click to enlarge)

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To read the paper, open HERE.
To view the complete slide presentation, open HERE.
(Then, for the best view, click File + Download, and Open the download.)