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.)

Monday, April 21, 2014

The New York Court of Appeals: Recent Search and Seizure Jurisprudence

By Mackenzie Keane Plaske
Mackenzie is currently a first-year associate at the law firm of Iseman, Cunningham, Riester & Hyde, LLP in Albany, New York, practicing primarily in the field of health care. She graduated magna cum laude from Albany Law School in May 2013.
While at Albany Law, Mackenzie participated in the Health Law Clinic and was a teaching assistant for Civil Procedure, Torts and Criminal Law.  Additionally, she was a Finalist in the Domenick L. Gabrielli Appellate Advocacy Competition.  As a member of the Albany Law Review, she also served as Executive Editor for New York Appeals during her third year.
This paper was prepared for the State Constitutional Adjudication Seminar, Spring 2013. It is Mackenzie's second publication for the Center. (See The New York State Court of Appeals and the Exclusionary Rule: From the Kaye Court to the Lippman Court, March 5, 2012.)


The line between reasonable and unreasonable searches and seizures has proven difficult to delineate. Courts are unable to dictate with particularity when a search or seizure would be permissible or impermissible, because each situation calling for such an analysis presents unique facts and circumstances.

When interpreting and rendering decisions on search and seizure, the Court of Appeals may ground its opinions upon independent state constitutional grounds. Unlike other states, such as Florida, New York has not adopted a lockstep approach to constitutional analysis. Therefore, the Court of Appeals is free to provide more constitutional protection than that provided by the U.S. Supreme Court, and that is exactly what the Court of Appeals has done.

Sometimes, but not always, the Court’s decisions align with those of the U.S. Supreme Court. But, whichever way the decisions fall, the Court of Appeals cites its substantial interest in protecting the rights of the citizens of New York State.

This paper will explore some of the recent Court of Appeals decisions involving search and seizure rights that fall within the ambit of New York State Constitution’s prohibition on unreasonable searches and seizures.
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To read the paper, open HERE.

Monday, April 14, 2014

Justice Ginsburg’s Opinions on Race: Her Past is Prologue

By Christopher R. Scoville
Christopher Scoville is a third-year law student at Albany Law School. He received his B.A. in History with a minor in American Studies from New York University.
In law school, Christopher is pursuing a concentration in Labor and Employment Law, and he is currently employed as a Law Clerk with New York State United Teachers. Additionally, he currently serves as the Director of the Immigration Assistance Pro Bono Project and as Vice-President of the Labor and Employment Law Society.
He prepared this paper (as well as a presentation on the same subject which will be published subsequently), for Professor Bonventre’s Judicial Process Seminar.


This paper examines the life and times of Justice Ginsburg that shaped her into an advocate and set her on a trajectory that would lead to the United States Supreme Court.  The paper then follows that path to opinions Justice Ginsburg issued in cases dealing with race.

From her work in academia to her time with the American Civil Liberties Union, and her opinions since being on the Court, there is no denying Justice Ruth Bader Ginsburg is ideologically liberal. It is clear that Justice Ginsburg has a long history of arguing and deciding cases impacting many issues, including race based upon her arguments in front of the Supreme Court, her time on the U.S. Court of Appeals for the District of Columbia Circuit, and her time as an associate justice on the U.S. Supreme Court.

While on the United States Supreme Court, Justice Ginsburg’s most high profile opinions on race have been her dissents. Whether they are on affirmative action (Fisher), Title VII (Ricci), or most recently the Voting Rights Act (Shelby County), her dissents are well thought out and founded on facts and precedent. Her opinions also exhibit something beyond the mere “application of the law.” They seem clearly to be shaped by what Justice Holmes referred to as an “inarticulate and unconscious judgment.”
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To read the paper, open HERE.

Monday, March 17, 2014

The Future of Juvenile Offenders: Evolving Standards of Decency

By Kristin Keehan
Kristin Keehan is a 3L at Albany Law School. She is currently a Senior Editor for the Albany Government Law Review and a Senior Editor for the Center for Judicial Process. She has worked as a research assistant for both Professor Lytton and Hirokawa, and has been a teaching assistant for both Professor Lytton's Torts class and Profess Hirokawa's Property class.
After graduation she will start as an Associate at Martin, Clearwater and Bell working in the field of medical malpractice.
This paper, prepared to satisfy the Albany Government Law Review's Note and Comment requirement, was written under the great advisement of Professor Mary Lynch.


Two recent United States Supreme Court decisions, Roper v. Simmons  and Miller v. Alabama, are drastically changing the sentencing schemes of juveniles. These monumental decisions from the country’s highest court determined that the sentencing of juveniles to death or mandatory sentences of life without the possibility of parole is barred by the 8th Amendment because evolving standards of decency indicate that such punishments are no longer accepted by society. These decisions, and others which are similar, indicate a positive shift away from the sentencing of juvenile offenders as adults to a focus on the rehabilitation of these youthful offenders.

This paper will discuss psychological studies of juveniles, which indicate that juveniles are underdeveloped. Accordingly, these studies advocate for sentencing schemes which allow for the rehabilitation of such juveniles. Next, the paper will discuss the case law surrounding “evolving standards of decency” leading up to the recent decisions by the United States Supreme Court regarding the sentencing schemes of juvenile offenders. Finally, the sentencing scheme of juveniles in the United States will be compared with that of other countries, with a focus on what the “evolving standards of decency” reflect on an international scale.
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To read the paper, open HERE.

Sunday, March 2, 2014

The Erosion of 1st Amendment Religious Liberty as a Fundamental Right [presentation]

U.S. Supreme Court & New York Court of Appeals


By Chelsy Jones
Chelsy Jones, a May 2013 graduate of Albany Law School, is a Law Clerk for the West Firm, PLLC in Albany.  Chelsy is a magna cum laude graduate of Siena College with a degree in Political Science.  While in law school, she was a Senior Editor at the Center, a legal intern for the Domestic Violence Hybrid Prosecution Clinic, and a Research Assistant for the Albany Law School Clinic and Justice Center.  Chelsy also worked year round as a legal intern at the Schenectady County District Attorney's Office, and acted as the student ambassador for the Center for Excellence in Law Teaching and a member of the Teaching Enhancement Committee.
Chelsy's essay, "Judge Victoria Graffeo’s Approach to Constitutional Criminal Procedure" [Oct. 19, 2013], and paper, "Getting Justice Ginsburg's Goat: An Examination of Her Dissenting Opinions" [Dec. 5, 2012], were previously published by the Center.
Chelsy prepared this presentation for Prof. Bonventre's State Constitutional Adjudication Seminar, Spring 2013.
(click to enlarge)


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

Sunday, February 23, 2014

The Judicial Mind: A Cognitive Theory of Jurisprudence [the paper]

By Laura K. Bomyea
Laura Bomyea is a May 2013 graduate of Albany Law School and is currently employed at Young/Sommer LLC in Albany.  She received her B.A. in Philosophy, with a concentration in Literature, from Bard College, and wrote her Bachelor's thesis on philosophy of language and metaphor.
While at Albany Law, she served as Student Editor-in-Chief of the New York Environmental Lawyer, an Associate Editor on the Albany Law Review, a Student Editor with the New York Government Law and Policy Journal, and a Research Assistant with the Government Law Center at Albany Law.
She prepared this paper, as well as the presentation on the same subject, for Professor Bonventre's Judicial Process Seminar, Fall 2012.

A great deal has been written through the ages on the subject of jurisprudence, the role of judges, and the process of judicial decision-making. Justices currently on the bench, as well as those who sat decades ago, have produced lengthy tomes on their personal judicial philosophies, as well as their views on how judges should approach the many complex legal and social problems they face.

One common theme among the writings of some of the greatest U.S. Supreme Court Justices is the notion that something—some ineffable something—is at work beneath the judge’s conscious thought which shapes his view from the bench and steers him toward making particular decisions in particular ways.

Today, neuroscience and technology have advanced by leaps and bounds, enabling us to better understand the human brain and its activities. This, in turn, should also enable us to better understand the subconscious forces at work in the judge’s mind. Thus, attorneys and judges alike would do well to explore these contemporary scientific theories of the mind and its politics, perhaps finally making articulate and conscious those judgments which were such a mystery to the likes of Holmes and Cardozo.

Part I of this paper will lay out current theories advanced by cognitive scientist and linguist George Lakoff, who has created a theory of moral politics--i.e., how our politics are related to and derived from deep-seated moral worldviews. Part II of this paper will explore techniques for investigating judicial writings to reveal certain clues about a judge’s worldview or politics, and instances where Lakoff’s theory seems to hold true on the bench.
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To read the paper, open HERE.
To view Laura Bomyea's previously published presentation on this subject, click HERE

Sunday, February 2, 2014

Breyer on Religious Freedoms

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.
This essay on Supreme Court Justice Stephen G. Breyer's treatment of religious liberty was prepared for Prof. Bonventre's Judicial Process seminar, Fall 2013.

Despite the United States’ vast diversity, public opinion of politically, culturally, and socially charged issues divides on fairly consistent fault lines.  Examples in this endless culture war include issues that touch on race, gender, equality, privacy, or the role of the federal government.  These rifts are seen not only in public opinion polls, but also in the politicians we elect, and even in the opinions of the Supreme Court, which we like to fantasize as beyond the realm of politics.

While the passage of time may erode certain outdated points of view on many issues, the split in public opinion regarding religious freedom has seen decades of back-and-forth.  These battles have percolated into the Supreme Court’s decisions, which amount to a microcosm of the culture war represented by a series of holdings and case law nothing short of schizophrenic.

The inconsistencies in the Court’s opinions stem from the fact that, rather than being based on solid, uncontestable legal theories, the articulable rules that guide these cases are the result of flimsy majorities and pluralities made up of widely disparate viewpoints of justices who agree on little aside from the end-result of a given case.  These viewpoints shift as old justices retire and new justices with different political views replace them.

Each justice has his or her own individual viewpoint that helps shape decisions. This paper will focus on selected opinions of pragmatic Justice Stephen Breyer.
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To read the paper, open HERE.

Sunday, January 19, 2014

Ginsburg (and sometimes Scalia) on Search and Seizure

By Joshua Greenfield
Joshua Greenfield is a third year student at Albany Law. He graduated from Syracuse University in 2011 with a degree in Art History. Josh has interned at CBS's legal division and the New York Public Employment Relations Board. He is currently a contributing member of the Center for Art Law website writing on various issues in the field of art law.
This essay was prepared for Prof. Bonventre’s Judicial Process Seminar, Fall 2013.


Looking back on the last ten divided Supreme Court decisions in which Justice Ginsburg voted on the issue of search and seizure under the Fourth Amendment, it is evident that Ginsburg is, above all else, a proponent of greater individual and privacy rights.[1] Justice Ginsburg’s decisions are not guided by a need to ensure that law enforcement complies with procedure. Rather, it is the level of intrusion the government places on an individual that determines how she votes.

Her “stream of tendency,”[2] the underlying principle guiding her decisions, is based on greater individual freedom and personal autonomy. In every single divided case involving searches and seizures in the last ten years or so, Ginsburg has voted for greater individual protections from governmental intrusion rather than allowing law enforcement to exercise discretion.

Sunday, January 12, 2014

Same-Sex Marriage: Have We Been Here Before?

Comparing States’ Approaches Toward Same-Sex Marriage Bans
& Pre-Loving Anti-Miscegenation Statutes

By Grace Burhyte Atwater
Grace Atwater is a May 2013 graduate of Albany Law School She currently lives and works in Buffalo.
During law school, she served as Executive Managing Editor of the Albany Law Review, and as a Senior Editor for the Center. Grace also interned at the Office of the New York State Attorney General in the Consumer Frauds and Protection Bureau, worked as a Research Assistant for Professor David Siegel, and was Professor Bonventre’s Teaching Assistant for Criminal Law.
Grace received a Bachelor’s Degree from DePauw University in Greencastle, IN, where she majored in History, and minored in Latin American & Caribbean Studies.
She wrote this paper for the State Constitutional Adjudication seminar in Spring 2013.


The marriage equality debate is not new. Discriminatory practices in granting marriage licenses are a longstanding tradition of the American social order, despite marriage having been repeatedly referred to as a “fundamental right."

In Loving v. Virginia, the U.S. Supreme Court stated, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Of most recent controversy is the debate over same-sex marriage.

Litigants in same-sex marriage cases have made analogies to the anti-miscegenation cases of the 1950s and 60s by using the U.S. Supreme Court’s holding in Loving that marriage is a fundamental right to challenge state statutes limiting marriage to heterosexual couples. Nevertheless, many state courts have rejected these arguments without much explanation, compelling a comparative analysis of the underlying laws and court decisions.

This paper examines judicial opinions and compares the justifications provided for state statutes and constitutional provisions that banned interracial marriage before Loving with those that currently ban same-sex marriage. The language used by the courts to rationalize these holdings reveals a mindset strikingly similar to the mentalities behind the enactment and continued support of these statutes.

By comparing the underlying rationales of these decisions as well as the social movements running concurrently to states overturning these bans, it becomes clear that the unconstitutionality of same-sex marriage bans is not one of “if,” but instead, simply a question of “when.”
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To read the paper, open HERE.