Judith Kaye Has an Opinion Too: A Unifier’s Guide to Dissenting

By Alison C. Beck

Alison Beck graduated cum laude from Albany Law School in May 2021. Prior to attending law school, she graduated magna cum laude from St. John Fisher College in Rochester, NY with a B.A. in English and Legal Studies.

During her time in law school, she worked as a law clerk at NYSUT before heading to the New York State Legislature. Alison worked in the Assembly Minority Counsel's Office before landing a position as a law clerk in the Senate Minority Counsel's Office.

She also worked as a research assistant for Dean Rosemary Queenan and participated in the Domenick L. Gabrielli Appellate Advocacy Competition. However, her real claim to fame in law school has been her ability to "name that tune" in Professor Patrick Connors' classes.

Alison is currently an associate counsel at the New York State Senate Minority Counsel's Office.

There exists a double standard for women in the law, often seen as too aggressive or too emotional. New York Chief Judge Judith Kaye, known for her kindness and compassion, was likely stereotyped as the latter type of lawyer. Her judicial opinions often incorporated passionate and heartfelt language. This wasn’t a bad thing though; it also made her writing more powerful. Her desire to avoid division on the court exemplifies the level of sincerity and commitment she had to her beliefs when she dissented.

Kaye acknowledged throughout her life that she was always a writer first, that she went to law school only with the hope of landing a job at a newspaper or magazine company. The writings of a journalist have a particular gumption, their personal views and passions seem to seep through no matter what. In dissecting Judge Kaye’s writing—mainly her dissents, but also a few majorities where appropriate—I analyzed the pillars of her judicial identity and how they reflect traditional gender norms. What seeped through was a desire for fair and equal treatment under the law, compassion and understanding for the background of the parties, and a fierce defense of the defenseless.

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To read the paper, open HERE.

The Role of New York's Chief Judge: Kaye’s, Lippman’s, and DiFiore’s Executive Emphases

By Kieran Murphy

Kieran Murphy, a 2020 graduate of Albany Law School, was the Executive Director of the Anthony V. Cardona Moot Court Program, an Associate Editor of the Albany Law Review, a Dean Thomas Sponsler Honors Teaching Fellow, and President of the Class of 2020. Prior to attending Albany Law, Kieran received a B.S. in Integrative Neuroscience and a B.A. in Economics from Binghamton University. 

While in law school, Kieran served as a judicial extern to the Hon. Thomas J. McAvoy of the U.S. District Court for the Northern District of New York, and to the Hon. John C. Egan Jr. of the New York State Supreme Court, Appellate Division, Third Department. He is the recipient of the New York State Bar Association’s 2019 Judith S. Kaye Outstanding Advocate Award, and a member of the National Order of the Barristers. 

After sitting for the October 2020 Bar Exam, Kieran will begin his legal practice in the litigation department of Milbank, LLP. 

Most often, judges are criticized for decisions that relate to their performance on the bench.  Whether it be their non-compliance with stare decisis, inconsistencies among cases within the same area of the law, or just flat-out disagreement with their analytical processes, the reproach judges experience tends to stem directly from the cases.  Much less chastised, and certainly much less analyzed, is the executive decision-making we give to the chief judges on high courts.  

This paper addresses the policy emphases of the three most recent Chief Judges of the New York Court of Appeals.  Additionally, it analyzes the execution of those policies to determine the extent to which each Chief Judge succeeded in implementing their initiatives.

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To read the paper, open HERE.

Former New York Court of Appeals Chief Judge Judith Ann Kaye [mini-presentation]

By Joseph Zeitler

Joseph Zeitler is a second-year student at Albany Law School where he is also a member of the Albany Law Review. Joseph has worked as both a law clerk at a local Albany law firm and as a legal intern at the New York State Attorney General’s Office.

Prior to attending law school, Joseph spent three years on the West coast working in the aerospace industry. In 2014, he graduated from Clarkson University where he majored in Supply Chain Management with a minor in Literature.

This summer, Joseph will be at the law firm of Whiteman, Osterman, & Hanna, LLP in Albany as a summer associate.

This presentation was prepared for Prof. Bonventre’s Court of Appeals Intensive seminar in the Spring of 2020.

Hailed as a great judge, Chief Judge Judith Ann Kaye certainly left her mark on New York’s justice system. Most of us know that she was the first female Chief Judge of the Court of Appeals, which is historic especially for women in the legal field. But she was so much more than that. As Judge Victoria Graffeo puts it, Judge Kay was a rock star in the legal community. And Judge Kaye certainly earned that reputation throughout her career. Simple searches made online lead to article after article from judges, lawyers, and law scholars heaping praise onto Judge Kaye. There has been a tremendous outpour of praise and gratitude for what Judge Kaye did for New York. Judge Kaye’s efforts during her time on the Court of Appeals led to reforms in the jury selection process, problem-solving justice, and family justice.

On the reforms made on the jury selection process, Judge Kaye stated, “Symbolically, it told the public that we all stand equal before the law, that no person, no group, is more powerful or privileged so as to be automatically excused from a fundamental obligation of citizenship.”

Judge Kaye helped implement problem-solving programs in New York’s justice system. These programs provided services such as drug counseling and job training. Instead of continuing the vicious cycle of imprisoning drug addicts, the justice system was working to break the cycle by providing services to reduce recidivism. These programs, while non-traditional and progressive at the time, had positive results, and New York State became a national leader in problem-solving justice.

During her career, Judge Kaye made significant progress in improving family justice, which was her passion. Her efforts helped to both improve the quality of life for children in foster care and increase adoption rates in New York. As Judge Kaye stated, “Every kid deserves to be valued, to have an opportunity at life. And every one of us can contribute to accomplishing that. My Purpose is to help make it happen.”

Judge Kaye’s life serves as a reminder to those of us in the legal field and beyond. She never lost sight of what she knew was important: protecting and serving the vulnerable populations of our communities.

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To view Joseph Zeitler’s mini-presentation on Chief Judge Kaye, click HERE.

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.

New York's Former Chief Judge Judith Kaye [mini-presentation]

By Ashley McDonough

Ashley McDonough is a third-year student at Albany Law.
Prior to law school, Ashley graduated from York College with a degree in Political Science, and she was a paralegal for six years.
Ashley is an Executive Editor for Notes and Comments for Volume 80 of the Albany Law Review. She has also served as a judicial intern in the U.S. District Court for the Hon. Christian F. Hummel and is a teaching assistant at Albany Law.
Ashley will be joining the law firm of Jones Day after graduation.

(click on any slide to enlarge)

Observing and Learning from the Court of Appeals

Lessons Learned Studying New York’s High Court

By Michael L. White
Michael White, a 2014 cum laude graduate of Albany Law School, graduated magna cum laude from the State University of New York at Plattsburgh with a Bachelor’s degree in Political Science.
While in law school, Michael served as the Executive Editor for Symposium for the Albany Law Review. He also won the award for best oral advocate in the Domenick L. Gabrielli Appellate Advocacy Moot Court Competition, and he was selected to represent the law school in a national moot court competition in Virginia. Additionally, he worked for the United States District Attorney’s Office for the Northern District of New York and he completed an internship with the City of Albany’s Law Department.
Michael has begun his legal career at Martin, Harding & Mazzotti, LLP, which he views as a great fit for his experience and his passion to help people—especially in times when they need an advocate most to protect their rights.
He prepared this essay based upon an independent study he undertook in his last semester in law school, part of which involved joining the Court of Appeals Intensive seminar's visits to the state's high court and meeting with its Judges.

This paper will highlight the lessons that I learned in my final year at Albany Law School studying effective oral advocacy techniques and the judicial process.  Much of what I learned came from an independent study I undertook which included visits to New York’s highest court, with the Court of Appeals Intensive seminar, in my last semester at the law school. Those visits gave me the opportunity to observe oral arguments and listen to Court of Appeals judges who spent time with the class explaining what they perceive their role to be as Judges on the high court.

While speaking to our class, Chief Judge Lippman made an interesting point about the effect advances in technology have on a judge’s role in shaping or interpreting law.  Chief Judge Lippman stressed the importance of how societal changes, technological advances, and other policy factors should all be considered when a judge, particularly on a state’s high court, is deciding an issue.

Take for example the Matter of Empire Center for New York State Policy v. New York State Teachers' Retirement System case (23 NY3d 438 [2014]), where at issue was the disclosure of the names of public employees who received a pension from the state.  To de-emphasize the privacy concerns, some of the judges were making a point through their questioning that most of the information that was sought to remain exempt from disclosure might already be searchable on the internet.  The judges seemed to be aware of the privacy concerns, but also cognizant of the lower expectations of privacy people now have with the advent of Facebook, Twitter, and other social media sites.  This balance between the cherished right to be “let alone” and the emerging world of social media reminded me of one of Chief Judge Lippman’s most famous and oft cited rationales.

New York’s Court of Appeals: The Internal Operating Procedures

By Sarah Engster
Sarah Engster, a third-year student at Albany Law School, graduated from American University in 2008 with an interdisciplinary studies degree in communications, law, economics, and government.
Prior to law school, Sarah worked as a Litigation Clerk for an intellectual property law firm in Washington, D.C.  While in law school, Sarah has interned with the Albany County Public Defender’s Office, and continues to intern at the Supreme Court, Appellate Division 3rd Department.
Sarah is currently an Associate Editor for the Albany Law Review, a student editor for the NYSBA Government, Law & Policy Journal, and a research assistant for Professor Patrick M. Connors.
Sarah prepared this paper for Prof. Bonventre's Court of Appeals Intensive Seminar, after which she was selected as this year's Editor-in-Chief for the Center.


New York’s court of last resort, the Court of Appeals, has been held throughout history as one of the most influential appellate judiciaries in the country. Since its creation by the Judiciary Article of the 1846 constitutional convention, the Court’s purpose has been to “unify, clarify, and pronounce the law” of New York.

In any appellate court, the study of judicial decision-making requires a thorough understanding of the substantive jurisdictional, statutory, and constitutional issues that may arise. It is at least as important to understand the personal and collegial dynamics among the justices and the internal procedures that guide them. Attorneys who hope to practice before the Court of Appeals would do well to inform themselves of the basic happenings within the red room and around the Court’s famed round conference table.

This paper focuses on the internal operating procedures that serve as the framework within which decision-making at the Court takes place. The paper also looks at the internal operating procedures implemented by other state high courts across the country.

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To read the paper, open HERE.

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.*

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* 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.*

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* 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.)