Sunday, May 26, 2019

Philosophy & Jurisprudence: The Thoughts and Methods of Holmes, Cardozo, and Brandeis

By David Dickinson
David Dickinson just completed his 2nd year at Albany Law School. He earned his bachelor’s degree in Political Science from Hobart College with a minor in international relations.
Prior to attending law school, David worked for four years at the New York State Department of Labor. While a student at Albany Law, David has served as a faculty research assistant and the student editor-in-chief of The New York Environmental Lawyer, a publication of the Environmental & Energy Law Section of the New York State Bar Association.
David’s paper was prepared for Professor Bonventre’s Supreme Court Seminar, Fall 2018.

Supreme Court Justices have often had their judicial philosophies analyzed and described, their evolutions tracked and notated, and their insights in major and minor cases outlined, quoted, and footnoted. This paper aims to draw out, so much as it is possible, some of the philosophical tenets providing the foundation for the thought of three of the nation’s most respected jurists: Oliver Wendell Holmes, Benjamin Cardozo, and Louis D. Brandeis.

Each of these Justices had their own method of preparing for and approaching cases, Additionally, each looked to varied political and philosophical traditions to begin these inquiries. For example, Holmes jurisprudence reflects a tension between the thoughts and concepts present in his legal writing, which find their foundations in philosophies, and Holmes’ own desire to be seen as having original thoughts and insights. This tension can be found in his writings on natural law, on common law, and on free speech.
To read the paper, open HERE.

Saturday, April 20, 2019

The Nature of Cardozo’s Process: Testing it in Schloendorff and MacPherson

By Mary Ann Krisa
Mary Ann Krisa, currently in her final semester at Albany Law School, received her bachelor's degree in English Language and Literature from Smith College, and her Master's degree in Public Administration from Cornell University.  Additionally, Mary Ann has studied at Trinity College, Oxford, and Columbia University.  Prior to attending law school, she worked in the field of Higher Education for ten years. 

Within the world of legal scholarship, Benjamin Cardozo is lauded as a jurisprudential icon.  Having written approximately 500 opinions during his eighteen-year tenure at the New York Court of Appeals, and over 170 opinions during his six years on the Supreme Court, Cardozo redefined legal precedents, created new legal precedents, and wove his thinking into countless areas of law.  Outside of the courtroom, Cardozo wrote—and lectured—ostensibly about the purpose and function of law and the role of the judge in the legal system.

For Cardozo, “the Law” was not simply based on logic, but rather on a series of other considerations that addressed larger societal concerns.  This paper explores the application of Cardozo’s judicial philosophy as written in Cardozo’s book  The Nature of the Judicial Process, in two landmark New York Court of Appeals cases, Schloendorff v. Society of New York Hospital and MacPherson v. Buick Motor Co.

To understand how Cardozo purported to think about jurisprudence, one need not look any further than the opening lines of Cardozo’s seminal work The Nature of the Judicial Process.
What is it that I do when I decide a case?  To what sources of information do I appeal for guidance?  What sources of information do I appeal for guidance?  In what proportions to I permit them to contribute to the result?  In what proportions ought they to contribute?  If a precedent is applicable, when do I refuse to follow it?  If no precedent is applicable, how do I reach the rule that will make a precedent for the future?  If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it?  At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or common standards of justice and morals?   
Cardozo concludes, “[i]nto that strange compound which is brewed daily in the caldron of the courts, all these ingredients enter in varying proportions.”  Cardozo then goes one step further, acknowledging that such individual choices are not universal, but rather that the choices derive from beliefs nestled in both the conscious and the subconscious, beliefs that both “hover near the surface” and live “far beneath the surface.”

It is those deeply held beliefs, Cardozo argues, that keeps judges “consistent with themselves and inconsistent with one another.”   But when—and how—do those deeply (or not so deeply) held beliefs influence the judicial process?  Calling upon legal scholar John Chipman Gray, Cardozo suggests that those beliefs may invade when there is no answer, or when there is ambiguity, or “when the legislature has had no meaning at all; [or] when the question which is raised on the statute never occurred to it.”  To say it another way, these beliefs arise in times of uncertainty.
To read the paper, open HERE.

Wednesday, March 20, 2019

Judicial Activism and Restraint: Scalia’s Originalism and Jackson’s Pragmatism

By Howard Carter
Howard Carter is currently in his final semester at Albany Law School. Howard is a retired U.S. Navy SEAL Master Chief who served in the SEAL Teams from 1990 to 2012. Howard has bachelors’ degrees from Boston University and The Massachusetts College of Liberal Arts, as well as a Master’s Degree from Dartmouth College. 

The author views the Court’s authority as gained in Marbury v. Madison (1803).  This authority gained in Marbury is described under the modern context of conservative and liberal judicial politics and philosophy.  The topic then narrows to a comparison of liberal and conservative sub sets: pragmatism and originalism.  The originalism of Justice Antonin Scalia and pragmatism of Justice Robert Jackson are compared and contrasted in order to look at two particular justices differing methodologies.  The author finishes the analysis with comparison and contrast of Justice Jackson’s dissent in Korematsu v. United States (1944) and Justice Scalia’s dissent in Hamdi v. Rumsfeld (2004).

The United States Constitution does not explicitly state that the Supreme Court has the power of constitutional review.  Due to this lack of authority, one of the first important constitutional law cases is Marbury v. Madison in 1803.   Marbury displays the early Court’s tenuous legitimacy and can be viewed as the Court’s assertion of power.

Current Chief Justice John Roberts stated that prior to Marbury, “the Supreme Court was a court of law, but it wasn't established as a constitutional court.  So, its early decisions tended to be just everyday run-of-the-mill legal disputes, not great constitutional questions.”

As such, it is sixteen years after the adoption of the United States Constitution when Chief Justice John Marshall asserts power with his opinion in Marbury: “ It is emphatically the province and duty of the judicial department to say what the law is.  Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

Marbury is a political case.  It is a case where the Justices grapple with the legitimacy of the Court to decide on an action that impacts a political outcome.  It is considered within the context of the politics in which the case arose.   In Marbury the Court balances the political by grappling with the question of the overall nature of the Court’s authority first, and the specifics of jurisdiction second.
To read the paper, open HERE.

Saturday, March 9, 2019

“The Least Dangerous Branch”

The Politicization of the Judicial Branch in the U.S. and Germany
By Suzanne Foote
Suzanne Foote is a third year law student at Albany Law School, she holds a B.S. in History from The College at Brockport, SUNY, with a dual minor in Environmental Studies and Political Science. While attending Albany Law School she has interned with the Honorable Pater W. Hall of the United States Court of Appeals for the Second Circuit and the New York State Department of Agriculture and Markets Counsel’s Office and serves as the Executive Managing Editor for the Albany Law Review, Volume 82. Upon graduating in May, 2019, she will be serving as an Assistant Court Attorney for the New York State Supreme Court, Appellate Division, Third Department.
Suzanne’s paper was prepared for Professor Bonventre’s Supreme Court Seminar in the Fall of 2018.

Though they may have a judicial branch, constitutional democracies differ significantly in the ways these branches operate and the powers that may be exerted.  Judicial institutions, no matter the setup, are not free of political pressures.Yet, they may be less partisan than we see through the United States Supreme Court.

The judicial branch will undoubtedly always be political in nature because of the importance of the issues these courts decide—specifically, the individual rights of citizens under the governing constitutions. To examine the political pressures faced by judicial systems, this essay will examine the United States Supreme Court as compared to the German Bundesverfassungsgericht (“German Constitutional Court”).

The United States Supreme Court serves as a representative of a court vested with the right to review the actions of other branches of an otherwise co-equal government and to determine the constitutionality of their actions,. It also possesses other broad powers to decide non-Constitutional issues as the federal government’s “court of last resort.”

By contrast, while the German Constitutional Court represents a separate judicial body, which has been granted the power to decide upon constitutional issues, the court is limited to only these constitutional issues. By examining the similarities and differences of these two bodies, it can be concluded that despite the differences, both types of judiciaries are subject to political pressure and politicization due to role the judicial body plays in the federal government of each country.
To read the paper, open HERE.

Sunday, February 24, 2019

The Chief Justices’ Marriage to Stare Decisis

An Analysis of Burger’s, Rehnquist’s, and Roberts’ Relationship with Precedent

By Kieran T. Murphy
Kieran Murphy, a second year student at Albany Law School, is a member of the Albany Law Review, an associate member of the Anthony V. Cardona '70 Moot Court Board, a Dean Thomas Sponsler honors teaching fellow, and President of the Class of 2020.
Kieran has served as a judicial extern both to the Hon. Thomas J. McAvoy at the United States District Court for the Northern District of New York, and to the Hon. Judge John C. Egan, Jr. at the NYS Supreme Court, Appellate Division, Third Department. He has received multiple moot court awards, including the Hon. Judith S. Kaye Advocate Award from the New York State Bar Association.
Prior to attending law school, Kieran earned degrees in Integrative Neuroscience and Economics from Binghamton University, graduating in 2017. This summer, Kieran will be at the law firm of Milbank, Tweed, Hadley & McCloy, LLP in Manhattan as a summer associate. This paper was prepared for Prof. Bonventre's Supreme Court Seminar in the fall of 2018.

“I don’t get to pick and choose which Supreme Court precedents I get to follow . . . I follow them all.”   During his controversial nomination process, now-Justice Brett Kavanaugh sat directly in the lap of stare decisis while answering Senate Judiciary Committee questions—a fallback that has become commonplace for recent judicial nominees.

For decades, Supreme Court Justices have relied on stare decisis to skirt difficult questions concerning personal or political views on case law, as well as to maintain a neutral image of balance at the judiciary.   What becomes most important, however, is not how precedent is used as a talking point during the confirmation process, but how the doctrine plays out on the Court after a certain Justice has been confirmed.

The stare decisis doctrine has monitored the Court for hundreds of years, dating back to eighteenth century English common law. Stare decisis et non quieta moevre, translated to mean “to stand by matters that have been decided and not to disturb what is tranquil” is the idea that, in order to maintain uniformity among changing courts, prior decisions must stand as final word. While clear in translation, most courts have maintained that, while stare decisis is a vital element of judicial decision making, it “is a principle of policy and not a mechanical formula to the adherence to the latest decision.” As such, interpretations of the doctrine at the federal level have been severely scattered due to its inherent flexibility.

The dichotomy that exists between the importance of the Supreme Court’s marriage to precedent and the obvious, fast-changing social policies of the 20th and 21st centuries is an interesting one. While the Court’s foundational philosophy revolves around a need to maintain stability in decision making, the fast-changing social construct of today’s world makes doing so nearly impossible in certain situations. The implementation of stare decisis in the Justices' chambers as a result of this ongoing social pressure is much more important than their pre-written speeches on Capitol Hill. As such, this paper will focus on the doctrine’s evolution as it relates to three separate, recent eras of  the Supreme Court: (1) the Burger Court, (2) the Rehnquist Court, and (3) the current Roberts Court.
To read the paper, open HERE.

Monday, February 18, 2019

Judge Cooke: The Man and His Impact on the Law

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

Lawrence Henry Cooke has been described as “a giant . . . [i]n every good and important way.” For a man who began his work days at four in the morning, it cannot be overstated how impressive his impact on the law, not only on the subject matter he covered, but also on the people he encountered along the way.

This paper examines the Judge’s rise to the court, his key decisions as an associate judge and how they impacted they law as well as his decisions as Chief Judge and their impact on the law. The impact will focus mostly on the impact his opinions had on the criminal law field. Lastly, this work concludes with a discussion on his impact on the people he worked with and concluding remarks.

Born in Monticello, New York, Judge Cooke was heavily influenced by his father, George, who as a graduate of Albany Law School, was elected Sullivan County District Attorney in 1909. George Cooke made the transition from attorney to judge when he was elected to County Judge of the Surrogate and Children’s Court in 1926, a position he would spend the next twenty-two years working. Judge Cooke would learn from his father a lesson he would continue to share throughout his career, “when in doubt, always take the high road.”

Judge Cooke originally attended Harvard Law School before transferring to Albany Law School to obtain his law degree. He began his practice at the law office of John Lyons. While in private practice, he also worked as a volunteer fireman, was elected as Supervisor of the Town of Thompson and even filled his father shoes by becoming elected to the County Judge of Surrogate and Children’s Court in 1959. This ultimately led to his becoming elected to the Justice of the Supreme Court in the Third Department of New York in 1961, which then led to a cross party nomination by then Governor Nelson Rockefeller in 1968 to New York State’s Appellate Division, Third Department.
To read the paper, open HERE.

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.”
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.
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.
To read the paper, open HERE.