Sandra Day O'Connor: FWOTSC

(First Woman on the Supreme Court)

By Yaronit Nordin

Yaronit Nordin, a second year student at Albany Law School, is a graduate of Bennington College in Vermont where she studied Literature and Photography.  After graduating law school, Yaronit hopes to practice in Vermont.
Yaronit's presentation was prepared for the Judicial Process Seminar, Fall 2012.

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

If Robert Bork Were on the Court

What Might Have Been?
25 Years of Robert Bork on the Supreme Court

By Benjamin P. Pomerance

Ben Pomerance, a third year student at Albany Law School, is the Executive Editor for Symposium for the Albany Law Review and the 2012 Edgar and Margaret Sandman Fellow for the Government Law Center.  Ben received the New York State Bar Association President's Pro Bono Service Award in recognition of his founding and leading the law school’s Veterans Pro Bono Project.  He also received the Bar Association’s Elder Law Section Scholarship for his work in that field, including service as president of the school’s chapter of the National Academy of Elder Law Attorneys and a student editor of the Bar Association’s Elder Law Attorney publication.  Additionally, Ben is student co-chair of the Law School Liaison program and editor-in-chief of Law Student Connection, the Bar Association’s student newsletter.

This presentation was prepared for the Judicial Process Seminar, Fall 2012.

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To view the complete slide presentation, open HERE for Part 1 & HERE for Part 2.

(Then, for the best view, click File + Download, and Open the download.)

A Critique of Originalism and the Living Constitution

By Jeongkwan Lim

Jeongkwan Lim, an international student from South Korea, is in his second year at Albany Law School. He studied political science and philosophy as an undergraduate and received a masters degree in political science at Sogang University in Korea.  Prior to law school, he worked for a local government institution in Korea as a researcher.  Jeongkwan is interested in international law and philosophical debates about judicial power and the judicial process.

Jeongkwan's essay was prepared for the Judicial Process Seminar, Fall 2012.


Rehnquist said in his article, “The Notion of a Living Constitution,” that “[t]he framers of the Constitution wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment.”[1]

He also agreed with Justice Holmes that the words of the Constitution have called into life a being, the development of which could not have been foreseen completely by the most gifted of its begetters.[2]  He seemed to put the idea of applying general language in the Constitution to the unceasingly changing environment of the “living.”

However, Rehnquist wanted to put a limitation on the notion of a living constitution.  He criticized the brief writer’s version of the living Constitution, which insists that the courts should play a role as the voice and conscience of contemporary society when other governmental branches have abdicated their responsibility.[3]

Therefore, the federal courts, Rehnquist insists, should not interfere. That is so, even if a state’s legislature and governor, or the federal Congress and the President, have not solved a particular social problem.[4]

Basically, Rehnquist’s philosophy of constitutional law is that, when the meaning of general phrases in the Constitution are subject to a broad interpretation, judges should reduce that interpretation in favor of the other branches of government.

Judges: Lawmakers By Any Other Name

By Laura K. Bomyea
Laura K. Bomyea is a third year student at Albany Law School.  She received her undergraduate degree from Bard College, where she studied philosophy and literature.  Laura serves 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 currently works as a Law Clerk with Young/Sommer LLC.
This essay was prepared for the Judicial Process Seminar, Fall 2012.

The question of the role of judges as lawmakers is best addressed by Judge Cardozo’s assertion that the process of judging is not equivalent to matching colors in a card index. Rather, there are some “principles of selection” guiding the judge in his decision-making, even if those principles are not apparent to the judge himself.[1]

A judge cannot help but be a lawmaker.  For the process of making decisions, of creating new law where none existed before, is inherent in the process of judging. That is why judging is nothing like matching colors in a card index and spitting back the best match. 

Once a judge reaches “the land of mystery when the Constitution and statute are silent” on a given issue, the real work of judging begins.[2]  Precedent does not always help. Often it is merely, as Holmes calls it, prophecy.[3]

The judge needs to make a rule, or draw the case at hand within the net of existing rules, or carve out exceptions. He needs to decide something new, even by invoking something old in a new context, and that is where he puts on his hat as a lawmaker.

"THE UNTOLD SECRETS OF EAGLE STREET"

 As Told by the Judges of the Court of Appeals Themselves!

The 7th Annual Chief Judge Lawrence H. Cooke Symposium

Thursday, March 21

5:00 - 7:00pm

Albany Law School

For more information, click HERE.

Judges as Lawmakers: An Inescapable Reality

By Joanna Pericone

Joanna Pericone, a third year student at Albany Law school, studied political science as an undergraduate at LeMoyne College.  Before attending law school, Joanna worked for the New York State Assembly in the communications office.  During law school, she has worked as a law clerk at the Albany County District Attorney's Office, and as a judicial extern for the Honorable Lawrence Kahn.  Currently, Joanna serves as a law clerk in the Albany law firm of Ganz Wolkenbreit & Seigfeld.  Joanna is also the Chair of the Domenick L. Gabrielli National Family Law Moot Court Competition and a Senior Editor on the Albany Government Law Review.

Joanna's essay was prepared for the Judicial Process Seminar, Fall 2012.

The common conception regarding the role of judges and the courts is that judges should not be making law.  As the unelected branch of our government, judges should defer to the decisions of the populous unless those decisions are a clear violation of the federal Constitution.  

Judges themselves have even perpetrated this impression by publicly rejecting the idea that they do more than simply apply the black letter law to the facts of a case to reach their decisions.  In those cases, judges do not want to be labeled as “activists,” because the notion of a judge creating law is unfavorable and seen as an abuse of judicial power.  

In the course of the study of judges and the judicial process, however, it is apparent that despite whether they recognize it or not, judges do more than “umpire,” in the words of Chief Justice Roberts.[1]  Rather, they often interject their own ideologies into the decisions that are being made.

In the beginning of the century, Justice Benjamin Cardozo gave a lecture at Yale University where he openly acknowledged that “judge-made law [is] one of the existing realities of life.”[2]  Cardozo articulated in his lecture that not every case is black and white and easily applicable to precedent.[3]  If a case were easy, it would never reach the high courts.

Patterns in Pigott's Dissents

By Julia Steciuk

Julia Steciuk, a second year student at Albany Law School, studied English as an undergraduate at Siena College.  During her first year at Albany Law, Julia became Co-Director of Albany Law's Animal Pro Bono Project, as well as President of the school's Animal Legal Defense Fund chapter.  Julia is also a Research Assistant for Professor Vincent M. Bonventre, and an Associate Editor for the Center for Judicial Process.  She spent her summer interning with the Albany County District Attorney's Office.
This essay was prepared from research Julia did for Prof. Bonventre. 

At the time of this writing—December 2012—New York Court of Appeals Judge Eugene Pigott had dissented forty-five times since Jonathan Lippman was appointed Chief Judge in 2009.

Judge Pigott dissented in twenty-two criminal cases.  Of these, he dissented in favor of the criminal defendant’s interests five times.  Against those interests seventeen times.

Judge Pigott dissented in favor of criminal defendants’ right to counsel in two cases.  In one case, the defendant requested new counsel and, according to Pigott, the request was denied without the required minimal inquiry by the trial court.[1]  

In the other, the trial court disqualified defendant’s counsel after the defendant gave a waiver for conflicts that might arise.[2]  Judge Pigott maintained that the defendant should have been able to select the counsel of his choosing.[3]

Judicial Activism: Legal Dirty Words

By Michelle K. Mallette
Micky Mallette, a third-year student at Albany Law School, is the student Executive Director of the Center. She is a graduate of the United States Military Academy, where she studied law and systems engineering.
Prior to law school, she worked for Procter & Gamble as a Marketing Purchases Manager and Technical Engineer. During law school, she has worked as a legal intern at the Third Judicial District Town & Village Courts and at the Appellate Division, Third Department, as well as a summer associate at Couch White, LLP.
Currently, Micky serves as the Executive Editor for State Constitutional Commentary for the Albany Law Review.
Micky's essay is the second in the series on judges as lawmakers prepared for the Judicial Process Seminar, Fall 2012.

Any implication that a judge is engaging in judicial activism is anathema to most judges.[1]  Judges don’t make law. Judges render decisions based solely on the application of black letter law to the facts of any given case.

According to Posner, “[j]udges tend to deny the creative—the legislative—dimension of judging . . . because they do not want to give the impression that they are competing with legislators, or engaged in anything but the politically unthreatening activity of objective, literal-minded interpretation, using arcane tools of legal analysis.”[2]

But no matter how hard judges try to deny it, whether they realize it or not, judicial lawmaking is inescapable.  Judges are not independent arbitrators free of the influences pervasive in society.  Judges “may try to see things as objectively as [they] please,” counsels Judge Benjamin Cardozo, but “[n]one the less, [they] can never see them with any eyes except [their] own.”[3]

What's Wrong With Judicial Lawmaking Anyway?

By Benjamin P. Pomerance

Ben Pomerance, a third year student at Albany Law School, is the Executive Editor for Symposium for the Albany Law Review and the 2012 Edgar and Margaret Sandman Fellow for the Government Law Center.

Ben received the New York State Bar Association President's Pro Bono Service Award in recognition of his founding and leading the law school’s Veterans Pro Bono Project. He also received the Bar Association’s Elder Law Section Scholarship for his work in that field, including service as president of the school’s chapter of the National Academy of Elder Law Attorneys and a student editor of the Bar Association’s Elder Law Attorney publication. Additionally, Ben is student co-chair of the Law School Liaison program and editor-in-chief of Law Student Connection, the Bar Association’s student newsletter. He has previously been published by the Center for Judicial Process. (See Original Sin? Why a Prescription of Originalism as a Judicial Cure-All Falls Short of the Promised Remedy, 9/29/2012.)

One more thing, he organized an extraordinary symposium for the Law Review on Free Speech. It is no exaggeration that Ben planned and executed one of the very best events in my 22 years at Albany Law School.

This essay by Ben is the first in the series on judges as lawmakers prepared in the Judicial Process Seminar, Fall 2012.

Here’s the dirty little secret: Judges make law.

Actually, it isn’t much of a secret. The cat has been out of the bag since at least 1897, the year of Justice Oliver Wendell Holmes, Jr.’s seminal essay The Path of the Law.[1]

“Theory is my subject, not practical details,” Holmes wrote.[2] Then, a few lines later, he continued, “[t]heory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house. The most important improvements of the last twenty-five years are improvements in theory. It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject.”[3]

In other words, simply applying law to facts and reaching an obvious conclusion cannot decide the vast majority of cases. The cases are not obvious, and the decisions are tough. And in order to reach them, judges must interpret the constitutional and statutory provisions to reach an answer. All of which leads to one unavoidable conclusion: Judges making law.

Many of the great judges recognize this reality. Holmes gave way to Benjamin Cardozo,[4] whose mantle of judicial realism has been taken up by today’s pragmatists like Richard Posner.[5] These judicial luminaries have stated—not as a confession but as a fact of life—that their job implicitly comes with more than a little bit of lawmaking.

Cardozo spoke freely in his celebrated lecture series, The Nature of the Judicial Process,[6] about his own use of value judgments and societal foresight and sensibilities in deciding cases.[7] He talks about the many ingredients that go into his decisions: logic, justice, sentiment, and reason.[8] Posner essentially does the same when criticizing the hard-line ideological stances of Justice Scalia and Justice Breyer.[9]  Get over it, he seems to be saying.  We know you make law.  And it’s okay.[10]