Bankruptcy’s (Relatively) Even Keel

An analysis of nine justices’ voting patterns, Supreme Court of the United States 1992 – 2000
By Bronson C. Stephens
Bronson Stephens, a Third year student at Albany Law School, is a Senior Editor for the Center, as well as the Immigrants’ Rights/International Human Rights Project Director of the law school's Pro Bono Society.
This paper, like his previously published essay on Holmes and Cardozo, was written for the Judicial Process Seminar, Fall 2011 semester. (See, Holmes and Cardozo on Judicial Decisionmaking: A Contrast to Scalia and Rehnquist, Nov. 13, 2011.)

The aim of this article is to present and provide analysis of raw and statistical data covering the voting patterns of the United States Supreme Court Justices; specifically, the Justices' voting patterns in bankruptcy cases subcategorized as pro-debtor or pro-creditor. Analysis of that data includes examination of the relationships between the voting patterns of the individual Justices, the Justices’ voting patterns compared with those of the Court as a whole, and each Justice’s voting patterns within the pro-debtor/pro-creditor subcategory as compared with their overall voting patterns, both in general and as conservative or liberal.

The introductory section of this article identifies the data that has been selected and describes the method used in selecting and parsing the data. The next section briefly describes the reasoning behind the topic choice of this article. The final section presents the data and discusses findings and possible applications of data with regard to the Court as a whole and the individual Justices.

Reviewing and categorizing judicial decisions over a period of time reveals the trends of specific Justices, indicating their ideological theories and preferences. Often the most revealing data comes from judicial decisions that involve discord among Justices whose interests are usually commonly aligned. Cases where a Justice is the lone dissenter on an issue or where a coalition is formed between normally divergent colleagues frequently involve a Justice stepping outside the bounds of the label assigned to them, (liberal or conservative) and breaking with his or her ideological peers.

Dissenting, even when done along with a Justice’s ideological peers, imposes costs which are amplified when the dissenting judge is on the opposite side from their ideological peers. When a Justice has made the choice to dissent in such a case, it says something about their commitment to the topic at hand: there was some aspect of the case that was important enough for that Justice to take an action that was outside of their norm, despite the cost imposed. A series of these cases, taken as points of data, reveal more reliable patterns because of the high cost to the Justice who has broken with his/her peers.*

_____________________________
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

Jerome Frank’s “Other” Form of Judicial Activism

The Effect of Capricious Fact-Finding at the Trial Court Level

By Molly C. Casey

Molly Casey, a third year student at Albany Law School, is a Senior Editor for the Center. She works in the New York State Legislature as a Legislative Aide to Senator Lee M. Zeldin.

She wrote this essay as an assigned memo for the Fall 2011 Judicial Process Seminar.

This is her second contribution to the Center. (See A Reasonable Path to a Just Result: Cardozo's and Holmes' Counter to Judicial Restraint, Nov. 7, 2011.)

In the initial chapters of his book “Courts on Trial : Myths and Realities in American Justice,” Jerome Frank discusses the role of the court as a fact finder. [1] Frank’s discussion suggests that the judicial activism/restraint debate would be more fitting in a discussion of an appeals court, and less applicable in his discussion of trial courts. Decisions at the appellate courts are concerned with formulating a rule that can be used and applied. The primary purpose for this is the interest of predictability. The appellate courts articulate rules that serve as precedent for later cases and the judges who articulate these decisions have to consider the effects of their determinations. Trial courts, on the other hand, are concerned with the case before them and their determination affects only the result in that particular matter.

_________________________

[1] Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton University Press, 1949).

Silence of the Justices (Or Lack Thereof) [slide presentation]

By Richard Caister


Richard Caister, a third-year law student at Albany Law School, is originally from Clinton, NY. He is a graduate of Union College, having majored in Philosophy and Classics. He completed a legal internship with the Herkimer County Supreme Court, and is currently interning with the Committee on Open Government.

His slide presentation on the frequency--or lack thereof--with which the Justices ask questions at oral arguments was prepared for the Judicial Process Seminar, Fall 2011. His related paper on Justice Thomas, specifically Thomas's silence and dissents, was prepared for the same course and is accessible below.

(click to enlarge on all slides)

_____________________________

To view the complete slide presentation, open HERE.

(It is then best to download the presentation and view it from there.)
To read the related paper on Justice Thomas, open HERE.

To Agree or Not to Agree, That is the Question: The New York Court of Appeals On Remand

--Following Supreme Court Reversal in Cases Involving Search and Seizure and Self Incrimination from 1980 to the Present


By Madeline M. Moore
Madeline Moore, a third year student at Albany Law School, is an Associate Director for the Center. Raised in Maybrook, New York, she is a philosophy graduate of the University of Michigan. In law school, she has worked as a law intern at the Albany County Office of the Public Defender and the Office of the Federal Public Defender for the Northern District of New York.

She prepared this paper for the State Constitutional Adjudication seminar, Spring 2011.

This paper examines cases decided by the New York Court of Appeals, the state's highest court, following reversal and remand by the United States Supreme Court. The paper focuses on criminal cases. Specifically, it examines those five cases since 1980 that dealt with search and seizure or self incrimination issues.

In these cases, the New York Court of Appeals did one of three things. It came to the same conclusion as the United States Supreme Court, but on different grounds; it came to the same conclusion and followed the Supreme Court's reasoning; or it refused to follow the Supreme Court and came to a different conclusion based on independent state grounds.*

_____________________________
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

The NYCOA Bunch: An Analysis of Divided Criminal Cases at the New York State Court of Appeals

By Alexander Hyde
Alex Hyde, a 2011 summa cum laude graduate of Albany Law School, is currently employed in the General Counsel’s office for a group of insurance companies, headquartered in Glenmont, N.Y.  In his paper and slides, which were prepared for the Fall 2010 Judicial Process Seminar, Alex tracked and analyzed voting trends at the New York Court of Appeals in divided criminal cases between 2007 and 2010.


Observing the actual function of courts has been the work of many legal realists. It is an important task for many reasons.  First, courts make law and determine rights.  Demystification of the judicial process helps to decipher how justice is meted out; it can also prepare a practitioner.  Second, many realists seek to improve the way courts function. The first step in that process is to acknowledge the current role of the judiciary and isolate areas of weakness.  Finally and most importantly, for many realists the determination of what courts actually do is important simply to expose the inaccuracies of alternative pronouncements of the judicial process.  If ignorance tolerates injustice, disingenuousness accelerates and exacerbates it.  A frank discussion of reality, the argument goes, is the necessary approach to a judicial system which, admittedly, is impossible to perfect.

For my foray into the realist’s world, I chose to observe the New York State Court of Appeals.  The Court’s recent change of leadership piqued my interest. Specifically, I sought to determine the significance of the replacement of former Chief Judge Judith Kaye with the current Chief Judge, Jonathan Lippman.  Other than their swap, the court’s composition has remained unchanged since 2006.  Therefore, the two chiefs were each paired with the same six confederates for roughly the same period of time as of the writing of this paper.

To glean the significance of this judicial switcheroo, I chose to analyze divided criminal cases at the Court for the final two years of Chief Judge Kaye’s tenure, and for the first two years of Chief Judge Lippman’s tenure.  I focused on whether cases were decided “pro-defendant” or “pro-prosecution”.  I made the same determination for each judge’s written opinions and dissenting votes.  Based upon that compilation of data, I attempted to identify any discernible trends, and the results of that effort are reported below.*

_____________________________
* Citations to references in this introduction are available in the paper.

To read the entire paper, open HERE.
To view the complete slide presentation, open HERE.
(It is then best to download the presentation and view it from there.)

Toal’s Ladder

An Appreciation of South Carolina's Chief Justice, Jean Hoefer Toal

By Nicole Nielson

Nicole Nielson, a third year student at Albany Law School, is a member of the Albany Law Review and the student Executive Editor of the Law Review's annual State Constitutional Commentary issue. She is a Senior Editor of the Center and has previously contributed two articles.


Last spring, Albany Law School and the Albany Law Review were privileged and honored to host renowned Chief Justice Jean Hoefer Toal of the South Carolina Supreme Court during the Fifth Annual Judge Lawrence H. Cooke State Constitutional Commentary Symposium, Great Women, Great Chiefs.[1]During her remarks, Chief Justice Toal spoke about gender in the legal profession and described her philosophy, “Leaving the ladder down.” [2] This philosophy stands for more than helping diversify the profession—it serves as a clear reminder of her personal, professional, and judicial convictions.

Justice Breyer's Criminal Law Voting Record

By Nathan Hall


Nathan Hall, a 2011 summa cum laude graduate of Albany Law School, is originally from Lake George, NY, but is now pursuing his law career in New York City. In law school, Nathan interned at the New York State Department of Environmental Conservation, was a research assistant in international law for three years, and was a Senior Editor on the Albany Law Review.


This paper examines Justice Stephen Breyer’s voting patterns on important criminal law issues. It studies cases between 2002, when John Roberts became Chief Justice, through the 2009-10 term. These forty-six cases show that, in general, Breyer sides with the accused more often than the prosecution.


However, Breyer seems very concerned about stare decisis and deferring to precedent he deems binding on the matter at hand. This has oftentimes led him away from his typical “rights of the accused” stance and to vote in favor of the prosecution.This has been true in several cases dealing with search and seizure and others dealing with the right of confrontation.


Arguments in criminal cases before the Supreme Court are more likely to secure Justice Breyer’s vote if they can persuade him that they are based on legal precedent.

_____________________________
Read the entire paper HERE.

Selection and Appointment of Supreme Court Justices

The Criteria--What They Are and How They Are Used

By Eric Ross

Eric Ross, a third year student at Albany Law School, is President of the Albany Law Civil Liberties Union and a Senior Editor of the Center. He works at the U.S. Attorney's Office, Northern District of New York, as a Law Intern. This paper and slide presentation were prepared for the Judicial Process Seminar, fall 2010.

Elena Kagan’s nomination and confirmation to the Supreme Court, in the summer of 2010, brought to the forefront the process by which Justices are selected by the President and confirmed by the Senate. What is not publicized is the selection process itself. What exactly is needed to become a Supreme Court Justice?

The process and criteria described below may surprise the uninitiated. However, delving into the process and the history of selections, it becomes clear that, similar to many of the processes of today’s government, the selection process is largely political.

One looking to the Constitution for selection criteria will be surprised to learn that it does not provide any guidelines for selecting Justices to the Supreme Court. The Constitution does provide a clue, however, as to how a judge is appointed. It says, “[The President] shall have Power, by and with the Advice and Consent of the Senate . . . [to] nominate . . . Judges of the [S]upreme Court.” The extent of instructions on how to nominate a judge is limited to the language that, “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour."*

_____________________________
* Citations to references in this introduction are available in the paper.

Read the entire paper HERE.
View the complete slide presentation HERE.

Selection and Appointment of Supreme Court Justices [Slide Presentation]

The Criteria--What They Are and How They Are Used

By Eric Ross

[This slide presentation outlines the above-titled study.]

(click any slide to enlarge)