Saturday, February 2, 2019

Cuthbert W. Pound: An Advocate Through Dissent and Debate

By Allison Bartlett
Allison Bartlett earned her J.D. from Albany Law School summa cum laude and a B.A. in Art History from Vassar College.  Currently, she is an associate at Harter Secrest & Emery in the environmental land use and zoning practice group.
At Albany Law School, Allison was both a teaching assistant and research assistant, and served on the executive board for Albany Law Review, vol. 81, and the Women’s Law Caucus.  She also interned with the Honorable Mae A. D’Agostino, Northern District of New York, and the Honorable Peter A. Lynch, Albany County Court. 
Allison’s paper was prepared for Professor Bonventre’s Court of Appeals Seminar, Spring 2018.


Throughout his legal career, Judge Cuthbert Winfred Pound advanced protections for unprotected classes through his precise use of language and unwavering application of the law.

Cuthbert Pound graduated from Cornell University and began his legal career working alongside his older brother. He was admitted to the bar in 1886 when he was twenty-two. Before beginning his judicial career, Pound served as a State Senator from 1894-1895, where he demonstrated his progressive nature by sponsoring an initiative to provide voting rights to women. He then served as Lockport City Attorney, member and chairman of the state civil service commission, and law professor at Cornell Law School. He also served as counsel to Governor Frank Higgins, who later appointed him to the trial bench, as a State Supreme Court Justice.

In 1915, Pound received a temporary appointment to fill a vacancy on the Court of Appeals and then won election to that Court the following year. He served on New York's high court for nearly twenty years. That included a brief tenure as Chief Judge, a position to which he was initially appointed by Governor Franklin D. Roosevelt to succeed Benjamin Cardozo, from 1932 until his mandatory age retirement in 1934.

While remembered for being a liberal judge, he was elected to both the trial bench and the position of Chief Judge “without controversy by the joint action” of both the Republican and Democratic parties. He is most recognized for his decisions regarding economic regulation and freedom of speech, and of course, for having served on the Court at the same time as Benjamin Cardozo, who referred to him as “a great figure in the judicial history of New York.”
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To read the paper, open HERE.

Sunday, January 27, 2019

Scrooge v. Robin Hood: A Tale of Two Justices

James McReynolds and Louis Brandeis

By Emma Tiner
Emma Tiner, a 2018 summa cum laude graduate of Albany Law School, served as Editor-in-Chief of the Albany Law Review.  Prior to law school, Emma received her BS in communications, summa cum laude, at SUNY Cobleskill. She is currently clerking with Judge Richard K. Eaton at the United States Court of International Trade for the 2018-2020 term.



“That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected.”  These words, attributed to Justice James McReynolds in his opinion for the Court in the case Meyer v. Nebraska, laid the groundwork for protections that would have far-reaching effects in Supreme Court jurisprudence. In both Meyer and Pierce v. Society of Sisters,  McReynolds assisted in establishing important protections beyond the vagaries of the Fourteenth Amendment, identifying crucial rights that existed independent of specific Constitutional language.  These protections contributed to the evolution of the body of law known as substantive due process.

Yet, despite these two landmarks—discussed in more detail below—James Clark McReynolds is not remembered for this vigorous application of Constitutional protections. Instead, he is remembered for his unwavering vitriol and bigotry against those who differed from him—and against one justice in particular. Louis Brandeis shared the entirety of his time on the Court with James McReynolds. But he, not McReynolds, would be classed as one of the “greats.”  Although both justices were appointed by President Woodrow Wilson, an enmity existed between them because of Brandeis’ Judaism.  The conflict between these two justices—one glorious, one infamous—illustrates the contribution that a judge’s personal reputation makes to the legacy and legitimacy of the Supreme Court.
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To read the paper, open HERE.

Tuesday, January 22, 2019

The Boomer Decision and Court Calculations

The NY Court of Appeals' Economic Approach to Solving a Social Problem 

By Benjamin Goes

Benjamin Goes graduated from Albany Law School, magna cum laude, in December 2018.  He has a Bachelor of Science degree in Economics from SUNY Albany.  Ben currently serves on the Guilderland Board of Education and is involved in various educational reform movements.


Since the publication of Ronald Coase’s The Problem of Social Cost and the concomitant development and popularization of the field of law and economics, courts and legislatures have been encouraged to consider the principles of economic theory in the course of their decision-making.  This seems entirely proper.

Economics is a science for studying the condition and activity of human life. And law is a normative institution attempting to maintain and improve the condition of human life. However, attempts to employ economic concepts without truly understanding them, or employing them narrowly, can be a dangerous practice, leading to decisions which are sound from neither a traditionally legal nor an economic aspect.

One particularly striking example of a court embracing a seemingly economic approach to solving a social problem is the New York Court of Appeals’ 1970 decision in Boomer v. Atlantic Cement Co.  

In this case, plaintiff landowners sought an injunction to prevent defendant cement factory from continuing to damage their property by its emittance of smoke, dust, and vibrations. The lower courts found that the defendant’s operations did constitute a nuisance to plaintiff’s property. But those courts denied plaintiffs an injunction due to the “large economic disparity in economic consequences of the nuisance and the injunction.” Instead, the courts simply ordered the payment of temporary damages.

The Court of Appeals reversed. New York's high court did so in accordance with the long-established state rule that whenever the damage resulting from a nuisance is found to be “not insubstantial,” an injunction would be granted.
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To read the paper, open HERE.

Tuesday, January 1, 2019

Center Staff for the 2018 - 2019 Academic Year

Director
Vincent Martin Bonventre


Editor-in-Chief
Anthony Sokolowski is a current third year student at Albany Law School anticipating graduation in May of 2019.  Anthony graduated from Utica College in 2016 with a bachelors in political science and minor in philosophy.  In addition to serving as the Editor in Chief of the Center for Judicial Process Blog, he is also the Executive Editor of Albany Law's Government Law Review as well as Treasurer of the Italian American Law Society. Upon graduation, Anthony will be accepting a position as an Assistant Distract Attorney at The Oneida County District Attorney's Office. 



Executive Editor
Nicholas Marricco is a 3rd year student at Albany Law School. In 2016, Nicholas graduated cum laude from the University at Albany, SUNY with a BA in European History. In the summer of 2017 Nicholas interned for the Honorable Raymond Rodriguez of the Richmond County Criminal Court through the Sonia and Celina Sotomayor Judicial Internship Program. Nicholas has also interned for the Schenectady County District Attorney’s Office Special Victims Bureau, Albany County District Attorney’s Office Major Offenses Bureau, and the Bronx County District Attorney’s Office Gangs and Narcotics Bureau. Nicholas is the President of the Albany Law School Italian American Law Student Association, Vice Justice of Phi Alpha Delta, and an Article Editor for the Government Law Review. Nicholas wrote his note on government regulation of Armed Protests under the 1st and 2nd Amendment. When Nicholas graduates in May 2019, he will serve as an Assistant District Attorney for the Bronx County District Attorney’s Office.
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2017 - 2018 Student Editorial Board
Editor-in-Chief (Fall Semester 2017)
Wesley Rene, a third-year student at Albany Law School, graduated from the University of Syracuse in 2013 with a Bachelor of Science in both Finance and Marketing.

Wesley is currently an associate editor of the Albany Law Review and enrolled in New York’s Pro Bono Scholar Program.  He has also served as a Teaching Assistant, interned with Ayco, a Goldman Sachs Company and worked in the Immigration Law Clinic at the Albany Law Clinic and Justice Center during his time at Albany Law.  Upon graduation, Wesley will be working as an associate for Harris Beach PLLC.

Executive Editor / Editor-in-Chief (Spring Semester 2018)
Erin Kilmer is a student at Albany Law School and Albany Medical College in Albany, NY where she is anticipated to earn a JD and an MS in bioethics in May 2018. She graduated magna cum laude from Marist College in Poughkeepsie, NY in 2015 with a BA in philosophy.

At present, she is interning with Judge Kahn in the Northern District of New York. She spent summer 2017 in Vienna, Austria, interning at a law firm through a program with the New York State Bar Association. Erin is an Associate Editor at Albany Law Review and works as a research assistant for Professor Tenenbaum doing health law research.


Associate Executive Editor
Anthony Sokolowski, a current second year student at Albany Law School, holds a BA Magna Cum Laude in Political Science which he obtained from Utica College in 2016.

Anthony is currently a sub-editor for the Government Law Review Journal at Albany Law School where he is specializing his research in the issues surrounding child competency when they are defendants in murder cases. He is also a fellow of the Government Law Center which has led to internship opportunities at the Office of the Oneida County Executor. Currently, Anthony interns at the Office of the Oneida County District Attorney where he is a special assignment coordinator assisting in the litigation of crimes arising out of the Drug Enforcement, Special Victims Crimes and Murder divisions.
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For previous years' staffs, click HERE.

Wednesday, November 15, 2017

Judge Lawrence H. Cooke: A Career That Went Beyond the Bench

By Parker Niles
Parker Niles is a 2017 cum laude graduate of Albany Law School. He earned his undergraduate degree in History from Union College.
While in law school, Parker was an Executive Editor for Notes and Comments for Volume 80 of the Albany Law Review. He has also served as a teaching assistant and as a judicial extern for the Hon. Mae A. D’Agostino in the U.S. District Court for Northern New York.
Parker is currently a first-year associate at Holland & Knight in Boston.

Judge Lawrence H. Cooke’s reputation as a judge and then the Chief Judge for the New York State Court of Appeals was well earned.  He did not get a bid to the Court of Appeals on his first try in 1972,  but when he was finally elected in 1974, he was voted in by one of the highest margins ever.

Judge Cooke then went on to become one of the most respected judges to ever sit on the Court of Appeals. He was known for his work ethic, being fair and practical, caring for others, and being a proponent of state constitutional law.

Lawrence Cooke was born on October 15, 1914 in Monticello, New York.  He was born into a family with a background of working in the public sector of the law as his father, George L. Cooke, was the county judge, surrogate judge, and children’s court judge of Sullivan County for many years.

After graduating from Monticello High School, Cooke attended Georgetown University. After graduating from college, Cooke decided to follow in his father’s footsteps and attend law school.  Cooke began his law studies at Harvard Law School, but then soon transferred to his father’s alma mater, Albany Law School.
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To read the paper, open HERE.

Tuesday, October 24, 2017

Baldest Judge on the Bench: Robert Earl of the New York Court of Appeals

Robert Earl
This paper, prepared by a student in the Court of Appeals Intensive Seminar, spring 2017, explores the background, life, and considerable impact of Judge Robert Earl who served on New York's highest court for more than 20 years in the latter half of the 19th century.

Part I explores his upbringing, education, and public service prior to his time on the court. Part II highlights his time on the court, retirement, notable decisions, and prolific writings. Part III discusses his death and impact on the court and the State of New York in general.
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To read the paper, open HERE.

Monday, October 23, 2017

Center Staff for the 2017 - 2018 Academic Year

Director
Vincent Martin Bonventre


Editor-in-Chief (Fall Semester 2017)
Wesley Rene, a third-year student at Albany Law School, graduated from the University of Syracuse in 2013 with a Bachelor of Science in both Finance and Marketing.

Wesley is currently an associate editor of the Albany Law Review and enrolled in New York’s Pro Bono Scholar Program.  He has also served as a Teaching Assistant, interned with Ayco, a Goldman Sachs Company and worked in the Immigration Law Clinic at the Albany Law Clinic and Justice Center during his time at Albany Law.  Upon graduation, Wesley will be working as an associate for Harris Beach PLLC.


Executive Editor
Editor-in-Chief (Spring Semester 2018)
Erin Kilmer is a student at Albany Law School and Albany Medical College in Albany, NY where she is anticipated to earn a JD and an MS in bioethics in May 2018. She graduated magna cum laude from Marist College in Poughkeepsie, NY in 2015 with a BA in philosophy.

At present, she is interning with Judge Kahn in the Northern District of New York. She spent summer 2017 in Vienna, Austria, interning at a law firm through a program with the New York State Bar Association. Erin is an Associate Editor at Albany Law Review and works as a research assistant for Professor Tenenbaum doing health law research.

Associate Executive Editor
Anthony Sokolowski, a current second year student at Albany Law School, holds a BA Magna Cum Laude in Political Science which he obtained from Utica College in 2016.

Anthony is currently a sub-editor for the Government Law Review Journal at Albany Law School where he is specializing his research in the issues surrounding child competency when they are defendants in murder cases. He is also a fellow of the Government Law Center which has led to internship opportunities at the Office of the Oneida County Executor. Currently, Anthony interns at the Office of the Oneida County District Attorney where he is a special assignment coordinator assisting in the litigation of crimes arising out of the Drug Enforcement, Special Victims Crimes and Murder divisions.
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2016 - 2017 Student Editorial Board

Editor-in-Chief
Desiree Santos, a third year student at Albany Law School, holds a B.A. and M.A. in English from St. John’s University, where she graduated cum laude in 2007. Desiree is currently Director of the Pro Bono LGBT Rights Project and Student Liaison for the New York State Bar Association’s Entertainment, Arts and Sports Law Section. Beyond law school, she is planning to pursue a career in Business Law.
Executive Editor
Jeremy Andrew Millard is currently a 3L at Albany Law School. He graduated from SUNY at Albany in 2011 with a BA Magna Cum Laude in European History and Classical Studies (Latin) and a Master’s Degree in European History focusing on 18th Century France, for which he wrote a Master’s thesis “Rousseau, Robespierre, and the French Revolution: An Examination of the Origins of the Reign of Terror.”



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For previous years' staffs, click HERE.

Monday, April 24, 2017

Former NYS Court of Appeals Judge Pigott: A Record of Pragmatism

By Corey Carmello
Corey Carmello is a third-year student at Albany Law School. He graduated from the University at Albany in 2014 with a Bachelor of Arts in Political Science. Corey has interned with Judge Lawrence E. Kahn, of the Northern District of New York; the Albany County District Attorney’s Office; and the Appeals and Opinions Bureau of the New York State Attorney General’s Office. He is also a member of the Albany Law Review and has served as a teaching assistant. Corey will be working as an associate for Milbank Tweed Hadley & McCloy upon graduation.

This paper was prepared for Professor Bonventre’s Court of Appeals Intensive Seminar.


During his confirmation hearing, Judge Eugene Pigott said, “I approach each case, I like to say, with a great deal of humility, because I don’t think I’m much smarter than, for example, [the legislature] or the governor or another court . . .” He went on to say that this is the reason he focuses on the legislature’s intent when deciding each case. Pigott explained that he will always start with the statute, and if the legislative intent is clear, he will end with the statute.

An analysis of Judge Pigott’s positions in divided decisions shows that he lived up to the philosophy that he spelled out during his confirmation hearing.  In other words, it is evident from his opinion writing and voting pattern that Judge Pigott highly respected the legislative process, and the decisions made at trial.

This paper will discuss (1) his deference to the legislature;  (2) his deference to the trial courts;  (3) his record on criminal law cases;  and (4) it will discuss which Judges were most frequently on the other side of his majority opinions, and for which types of cases.
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To read the paper, open HERE.

Tuesday, March 7, 2017

New York's Former Chief Judges: Kaye & Lippman [mini-presentations]


Here are two mini-presentations prepared by students in the Court of Appeals Intensive Seminar. One by Ashley McDonough on the late former Chief Judge Judith Kaye, and the other by Robert Sohm on the immediate past Chief Judge Jonathan Lippman.

Ashley McDonough










To view Ashley McDonough's mini-presentation on Chief Judge Kaye, click HERE.

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Robert Sohm



To view Robert Sohm's mini-presentation on Chief Judge Lippman, click HERE.