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.

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]

Essays on State Constitutional Adjudication (Part 2: Anna Mumford and Bronson Stephens)

This is the second of the two-part series of essays examining the role of state courts in constitutional adjudication and the approaches those courts take in such adjudication, especially their treatment of U.S. Supreme Court decisions on similar issues.

Decisional Approaches to State Constitutional Claims

By Anna R. Mumford

Anna Mumford, a third year student at Albany Law School, is the Managing Editor for Business & Production for the Albany Government Law Review and a co-Executive Editor of International Law Studies.

Read the Essay (click link or see below)

State High Courts Taking Their Rightful Place

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.

Read the Essay (click link or see below)

Decisional Approaches to State Constitutional Claims

By Anna R. Mumford
Anna Mumford, a third year student at Albany Law School, is the Managing Editor for Business & Production for the Albany Government Law Review and a co-Executive Editor of International Law Studies. (See her ILS publication: Genocide In Cambodia?A Look at the ‘Protected Groups’ in the 1948 Genocide Convention, Jan 21, 2012.)
She has studied international law at the courts in the Hague, and she has worked as a legal associate with DC-Cam in Phnom Penh, Cambodia, an NGO which provides evidence to the Extraordinary Chambers in the Courts of Cambodia (ECCC).
This essay was prepared for the State Constitutional Adjudication Seminar, Spring 2012.


There are three different, basic approaches state supreme courts take in analyzing state constitutional claims—the dual reliance approach, the primacy approach, and the supplemental approach.  Stewart G. Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 Texas L. Rev. 977, 983 (1985).

State High Courts Taking Their Rightful Place

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 essay was written for the State Constitutional Adjudication Seminar, Spring 2012 semester.
Bronson has been published previously by the Center (See, e.g., Bankruptcy’s (Relatively) Even Keel at the Court: An analysis of nine justices’ voting patterns, 1992 – 2000, Feb. 22, 2012.)

Three state court opinions examined in the light of articles written by Pollock, Utter and Bonventre reveal some of the many ways state courts are stepping up to claim their place as the shapers of state law and individual freedoms.

The first article, Adequate and Independent State Grounds As A Means of Balancing the Relationship Between State and Federal Courts[1] written by Stewart G. Pollock, and the second Swimming in the Jaws of the Crocodile[2] by Robert K. Utter, speak to the importance of state court involvement in the development of American law; both federal constitutional law and state constitutional law within the individual states.[3]  The two articles by Pollock and Utter, along with the third article Changing Roles,[4] by Vincent M. Bonventre, mention the present threat, ever since Michigan v. Long,[5] that the Supreme Court will overrule a state court’s protection of its citizens.

Essays on State Constitutional Adjudication (Part 1: Steven Sacco and Dana Vitarelli)

This is the first of a two-part series of essays examining the role of state courts in constitutional adjudication and the approaches those courts take in such adjudication, especially their treatment of U.S. Supreme Court decisions on similar issues.

Constitutional Guardianship in State Courts

By Steven Sacco

Steve Sacco, a dual degree student, is in his 3d year student at Albany Law School while pursuing a Masters in Social Work at the SUNY Albany School of Social Welfare.
Read the Essay

The Interplay Between State and Federal Courts

By Dana Vitarelli

Dana Vitarelli, a third-year law student at Albany Law School, is currently the Research and Writing Editor and Business Manager for the Journal of Science & Technology.
Read the Essay

The Interplay Between State and Federal Courts

By Dana A. Vitarelli
Dana Vitarelli, a third-year law student at Albany Law School, is originally from Monroe, New York. She graduated magna cum laude from the State University of New York at Geneseo, majoring in Psychology. While at law school, she has worked at the United States Attorney's Office for the Northern District of New York as well as Albany Medical College. Dana is currently the Research and Writing Editor and Business Manager for the Journal of Science & Technology and Chair of the Domenick L. Gabrielli Appellate Advocacy Competition for the Moot Court Editorial Board.
This essay was prepared for the State Constitutional Adjudication Seminar, Spring 2012.


Stewart Pollock discusses that the basic principle of the relation between state and federal courts is that the two judicial systems are together responsible for protecting and upholding constitutional rights.[1] He says that respect for state court decisions by the United States Supreme Court is “essential to the continuing vitality of the dual judicial system.” He goes on to state that while the outcome of a case may vary based on the forum in which it is decided, state and federal courts are ultimately joined in a partnership with the purpose of protecting individual rights and liberties. It is paramount for each system to have independence and respect for one another while still working together in order to form an effective partnership. It is through this partnership that deference by the United States Supreme Court concerning state court decisions, primarily based in state law, has become a vital part of federal jurisprudence.

Pollock continues with this idea and says that by respecting these judgments, the United States Supreme Court regards state courts as “partners in the federalist system.” This respect is extremely evident when the outcome of a case would have differed using the federal constitution. The landmark case of Michigan v. Long removed any ambiguity in the United States Supreme Court's previous approach to determining the independence of a state court decision.[2] According to Long, a state court that discusses federal law must make a “plain statement” asserting that it used the federal law for guidance only in order to avoid review of its decision.


Robert Utter  expands upon Pollock’s “partnership” theory and discusses the fact that state courts have made “great contributions to the growth of federal constitutional law.”[3] He mentions the fact that state courts have interpreted their state constitutional provisions long before the United States Supreme Court examined its federal counterparts. He also states that the Supreme Court has recognized the “importance of the variety, breadth, and depth of state court analysis … in its own decisions.”

Constitutional Guardianship in State Courts

By Steven Sacco

Steve Sacco, a dual degree student, is in his 3d year at Albany Law School while pursuing a Masters in Social Work at the SUNY Albany School of Social Welfare. His focus is public interest law, specifically in the areas of immigration and family law, and in the civil rights and international issues that intersect with those areas of the law.

This essay was prepared for the State Constitutional Adjudication Seminar, Spring 2012.

Part I: Changes in Constitutional Guardianship

As Stewart Pollock and Vincent Bonventre point out, throughout the mid-20th century, particularly during the 1950’s to 1970’s, the Supreme Court of the United States provided protection to civil liberties and rights that the state high courts would not.[1] But in recent decades the pendulum has swung in the other direction and state high courts in their review of constitutional issues now act as the guardians of fundamental rights and liberties.[2] This shift has drawn attention to the ways in which state courts are in a unique position to protect civil rights and liberties, and conversely to the ways in which the Supreme Court of the United States is challenged in this regard.

For example, Robert Utter argues that state review of federal issues has contributed to the substantive development of federal law, and that the state courts are in a special position to expand certain rights and liberties the federal courts cannot or have not.[3] State court decisions have shaped federal law in many areas of substantive rights and liberties because the Supreme Court has often looked to state decisions to inform its own opinions on these issues.[4] 

Conversely, Utter also argues that the federal courts are restricted in at least three ways that state courts are not. First, that the U.S. Supreme Court is often reluctant to rule on issues in deference to the state in the interests of federalism; an institutional restriction the state Supreme Court does not have – something Utter refers to as “underenforcement” of the constitution.[5] Second, and this follows from the first, state courts do not need to worry about their decisions affecting the entire country, and thus can afford to exercise much less caution in making their decisions.[6] Finally, if the Supreme Court is underenforcing the constitution, it follows that the law is not providing liberty to the full extent that the document allows.[7] States, unencumbered by the first issue, have the ability to enforce the Constitution to its fullest potential.

However, the argument that the State high courts have some greater institutional capacity for developing and protecting civil rights and liberties seems to have been thwarted by a Supreme Court decision now nearly 3 decades old. Since 1875 the Supreme Court would decline review of a case if the state court based its judgment on an adequate and independent state ground; as long as such a ground were mentioned in the argument, the Supreme Court would presume the case off-limits for review.[8] But this changed in 1983 with Michigan v. Long.

The New York State Court of Appeals and the Exclusionary Rule

From the Kaye Court to the Lippman Court

By Mackenzie M. Keane

Mackenzie Keane, a second-year student at Albany Law School, is a member of the Law Review and an Associate Editor of the Center. Originally from Albany, she graduated magna cum laude from SUNY Buffalo where she majored in English and spent a summer studying in Spain. She has interned with the Albany County District Attorney's Office and Governor Cuomo's Office of General Counsel, and is a Research Assistant for Professor Bonventre, as well as a Teaching Assistant for his Criminal Law class.
This paper was prepared for the Judicial Process Seminar, Fall 2011.

In the landmark Supreme Court decision of Weeks v. United States in 1914, the Court held that the exclusionary rule is inherent in the Fourth Amendment, which protects all citizens against unreasonable searches and seizures. The now famous “fruit of the poisonous tree” language first appeared in Nardone v. United States and has since been used to describe evidence linked to an illegal search or seizure.

The language of the Fourth Amendment took time to become a part of the New York State Constitution. The 1938 New York State Constitutional Convention was largely influenced by the events taking place in Europe at the time, including the social and political strife caused by the Nazi regime. The debate that ensued was a highly publicized and partisan one that threatened both constitutional and political consequences.

Then New York County District Attorney Thomas E. Dewey framed the constitutional argument as a dangerous one that would limit the ability of the State of New York to protect its citizens. Most supporters of the addition of the Fourth Amendment language to the New York State Constitution relied on the Supreme Court’s decision in Weeks v. United States, arguing that the protection of the exclusionary rule was inherent in the substantive protection of the Fourth Amendment. Despite the heated debate, the convention ultimately decided not to constitutionalize the exclusionary rule and to instead let the Legislature and the Court of Appeals debate its scope and limitations. Although the convention did not add the exclusionary rule to the New York State Constitution, state voters ratified the 1938 convention’s proposed constitution’s bill of rights provisions in 1938. Those provisions included search and seizure and wiretapping provisions.

The United States Supreme Court decision in Mapp v. Ohio extended the exclusionary rule protection to state criminal cases. Justice Clark argued the hypocrisy of the fact that federal prosecutors could not even consider using illegally obtained evidence, but state prosecutors could use that same evidence in their case, even though those state prosecutors are supposedly acting under the same Constitution as the federal prosecutors. Although the New York State Constitution’s adoption of the U.S. Constitution’s Fourth Amendment language would seem to frame the State’s adoption of the exclusionary rule as a constitutional issue, the Court of Appeals has never made clear whether its application of the rule is a constitutional interpretation or a common law rule of evidence.

A judge’s stance on the application of the exclusionary rule indicates much about her personal and political views. Calabresi’s commentary on the exclusionary rule simplifies the indication as follows: “To liberals, it is a pillar of privacy; it is essential to protect individuals from predations on the part of the police. To conservatives, it is an absurd rule through which manifestly dangerous criminals are let out because the courts prefer technicalities to truth.”

Calabresi also mentions the interesting paradox of the “veracity” of evidence obtained in violation of search and seizure rights. Illegal evidence obtained from illegal wiretapping, warrantless searches, and vehicle stops without probable cause are examples of evidence that is inherently truthful because of the way in which it is gathered. And yet that evidence is barred from use by the prosecutor. The way that a judge votes on an exclusionary rule issue is very telling, because of the high stakes that accompany use of the rule. In reality, the judge isn’t simply voting on whether or not the exclusionary rule applies in a straightforward, application of law to facts approach. The judge is performing a costs versus benefits analysis of the gravity of the police misconduct and the danger of letting a criminal reenter society.*

_____________________________

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

A Reasonable Path to a Just Result

Cardozo's and Holmes' Counter to Judicial Restraint

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. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

Benjamin N. Cardozo wrote The Nature of the Judicial Process,[1] while serving on the New York Court of Appeals, six years before he rose to the position of Chief Judge, and eleven years before he succeeded Oliver Wendell Holmes, Jr. as an Associate Justice on the United States Supreme Court. In this article, Cardozo discusses the role of the judiciary and the processes it employs in the contexts of statutory interpretation and the evolution of case law.

Cardozo’s view of the purpose and function of the judiciary runs counter to judicial restraint, the theory advocated by such other renowned justices as Antonin Scalia and William Rehnquist. While an unequivocal endorsement of judicial activism should not be read into Cardozo’s article, he does at one point use the metaphor of the judge as an “artist” to suggest that on some level he endorses a more activist approach.

With respect to statutory interpretation, Cardozo articulates the role of the judiciary as filling in the gaps and clearing up ambiguities in statutes created by the legislature. Statutes are often “fragmentary, ill-considered and unjust” and the judge must act as the “interpreter for the community of its sense of law and order.” The judge cannot simply apply the law to the facts because the law, as articulated by the legislature, is incomplete. Nor may the judge exercise restraint because there is no authority restraining him.