Constitutional Individuation: The Jurisprudential Übermensch

By Clarence Felix Nyiri

Clarence Nyiri will be graduating from Albany Law School in December of this year. Before attending Albany Law, he received a bachelor’s degree in political science from Marist College.

Clarence spends most of his free time as the frontman and lead writer for the internationally acclaimed alternative rock band “The Dissidents.” He also works as an independent novelist and screenwriter and is involved in a music-centered AI startup known as “Haven Music.”

Currently, Clarence is in the process of drafting a thesis that links foundational legal and moral values to necessary constants and synchronous systems within the fields of psychology, physics, and neuroscience.

Does the law have a shadow?

Among the most significant intellectual thinkers of the Western canon is Friedrich Nietzsche, whose works have offered a rounded and nuanced explanation for how people process their environment through gradually changing moral prisms. Carl Jung, a student and successor of Nietzsche, made great strides in applying the concepts inherent in Nietzsche’s teachings to the archetypal foundations of the human psyche. Jung’s career and contributions have greatly enhanced mankind’s understanding of how psychology relates to human interaction with reality, making him a highly respected figure in the field.

Central to the teachings of both thinkers is the idea that the creation of a psychologically balanced system of beliefs and morals relies on a process of gradual change through introspection, the confrontation of fears, and the integration of the ideologically opposite “shadow” complex with the conscious persona which governs our day-to-day operations.
 
In this paper, the ideal role of judges is examined and redefined through this method of thinking. A new “ideal judge” is posited which rivals the “Judge Hercules” proposed by Ronald Dworkin. In lieu of a judge with the absolute mental command of legal precedent and tradition of the United States, an alternative is proposed which seeks to balance the judicial self-interests inherent in legal realism, the moral archetypes which would not be out of place in a natural law conception, and their application to community interactions as would be seen in a positivist perspective.

Through a case study of the history of the incorporation doctrine; the application of the Bill of Rights to the states, a legal parallel is made to the processes of Nietzsche and Jung. An argument is presented that incorporation is an apt representation of American Jurisprudence confronting the essential dominant and suppressed elements of its legal “psyche,” and that effective and moral law is the byproduct of this union.
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To read the paper, open HERE.

Understanding the Criticism of Roe v. Wade

 A Decision Exemplifying the Worst of Originalism and Legal Realism

By Nathaniel Clark

Nathaniel Clark is a third-year student at Albany Law School. Prior to attending law school, he earned his bachelor's degree from the University at Albany, State University of New York, where he majored in Emergency Preparedness, Homeland Security, and Cybersecurity. Additionally, Nathaniel minored in Philosophy.

At Albany Law, Nathaniel is a member of the Albany Law Review. He has interned with the New York State Office of the Attorney General and Magistrate Judge Christian F. Hummel of the Northern District of New York. He is currently a law clerk at the law firm of O’Connell & Aronowitz, P.C.

How should a judge decide a case? It seems the most basic of questions—if it is unclear to the presiding judge how a case should be decided, it seems a fool’s errand to ask attorneys to present arguments to persuade that judge, or to expect any consistency from the rule of law. And yet, the method by which a judge should render a decision in a case is the subject of significant debate. Some theorists suggest that a judge should make his decision by looking to the original meaning of the text of the statute at issue and applying the words of the statute as they meant when written to the case at hand. Others, however, argue that the ultimate duty of a judge is to weigh “the social advantage” of the laws at issue. Naturally, this dispute over the role of the judge has led to dispute over the decisions handed down by judges.

One of the most disputed decisions handed down by a judge in the 20th century is the Supreme Court’s decision in Roe v. Wade, which identified a fundamental right to privacy and held that it encompassed a woman’s decision as to whether or not to terminate her pregnancy, with some limitations. A decision such as this, which has developed into a lightning rod case about which Supreme Court nominees and political candidates are questioned, is an interesting case study on the process of judicial decision-making. Examining the judicial theories used in such a key decision, and whether those theories were followed, gives key insight into the process by which a judge decides a case.

This paper will examine Roe through the lens of legal realism, as enumerated by Justice Oliver Wendell Holmes, Jr., and originalism, as explained by Justice Antonin Scalia, in an attempt to understand why the decision has remained divisive from a legal perspective, independent of its substantive ruling. I will argue that this divisiveness stems from the fact that it is representative of the worst of both judicial decision-making theories, as it attempts to ground its findings in history but makes an incorrect historical analysis, and it sets out to follow Holmes’ method of legal realism but goes too far in its judicial legislation.

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To read the paper, open HERE.

Getting Justice Ginsburg's Goat

An Examination of Her Dissenting Opinions

By Chelsy Jones
Chelsy Jones, a third-year student at Albany Law School, is a Senior Editor of the Center.  Chelsy is a magna cum laude graduate of Siena College with a degree in Political Science. While in law school, she has served as a legal intern for the Domestic Violence Hybrid Prosecution Clinic, and as a Research Assistant for the Albany Law School Clinic and Justice Center.  Currently, Chelsy works year round as a legal intern at the Schenectady County District Attorney's Office. Chelsy also is the student ambassador for the Center for Excellence in Law Teaching and a member of the Teaching Enhancement Committee.
Chelsy's paper was originally written for the Judicial Process Seminar last year.

In his Nature of the Judicial Process lectures, Benjamin Cardozo once spoke of the “inarticulate” and “unavowed” views and positions that underlie all judges’ decisions.  He was speaking of judicial realism, a term most judges today retract from and even flat out deny, claiming impartiality to the point of judicial lobotomy.  

Realistically however, it truly is impossible for a judge, or any human for that matter, not to bring their personal views and positions into the equation when making a decision.  Cardozo therefore spoke of the “stream of tendencies” or patterns that naturally emerge in a judge’s voting record.  This paper will explore Supreme Court Justice Ruth Bader Ginsburg’s “stream of tendencies” in an effort to unearth what truly vexes her and reveal her “inarticulate” and “unavowed” views.

Dissents, in particular, best reveal a judge's position on certain issues.  When a judge dissents, she is not only disagreeing with her colleagues in the majority, but also taking the time and effort to explain her reasons for doing so.  Thus, to illustrate the types of issues Justice Ginsburg feels strongly about, or that “get her goat,” this paper will examine her dissenting opinions authored during the 2010 and 2011 terms.*
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* Citations to references in this introduction are available in the paper.

To read the entire paper, open HERE.

Posner on Judging

His Reflections on Scalia and Breyer

By Yaronit Nordin

Yaronit Nordin, a second year student at Albany Law School, is a graduate of Bennington College in Vermont where she studied Literature and Photography.  After graduating law school, Yaronit hopes to practice in Vermont.
Yaronit's essay was prepared for the Judicial Process Seminar, fall 2012.

Judge Richard Posner’s jurisprudence or judicial philosophy can be said to emphasize honesty and practicality, and to discredit the idea that there can exist a perfect or unified analytical system applicable to any constitutional question that comes a judge’s way.

In “The Incoherence of Antonin Scalia,” Posner points to the failings and falsehood of “originalism” as Justice Scalia explains it in his most recent book.[1] In “Justice Breyer Throws Down the Gauntlet,”[2] Posner criticizes Breyer’s attempt, in his recent book, to fashion a loose-constructionist answer to “originalism” that Breyer calls “active liberty.”[3] 

Posner’s main problem with both Scalia’s and Breyer’s judicial philosophies is that both try to impose on the Constitution a framework that is too rigid for the real world, and one that is not or cannot be consistent with the document itself.[4]

Posner’s jurisprudence emerges from his analysis and is free of what he calls in his article on Breyer, a judge’s “self-censorship,” which leads judges to try to claim that their work is objective.[5] Posner embraces Ronald Dworkin’s “political morality”—a judicial philosophy that requires the judge to be a proponent of his legal determination, rather than to claim to be a passive oracle.[6]

The New York Court of Appeals: Analyzing the Status of Workers’ Rights in New York

By Christina French
Christina French, a third year student at Albany Law School, is the Editor-in-Chief of Albany Law School's Journal of Science and Technology. She works at New York State United Teacher as a Law Clerk for the Office of General Counsel.
This paper was prepared for the Judicial Process Seminar, Fall 2011 semester. It is Ms. French's 2d publication for the Center. (See Holmes and Cardozo: Early Contributions to the Progression of the Law, Nov. 28, 2011.)

This paper will provide a brief summary of several judicial opinions issued by the New York State Court of Appeals regarding employee benefits awarded for accidental on the job injury. The intention of the exercise is to provide the practicing attorney and other legal scholars with some insight into the status of workers’ rights as represented in the decisions of the New York Court of Appeals.

Two pieces, written by Holmes and Cardozo, contribute to the study of the judicial process by articulating the theory of legal realism and its approach to understanding what it is that judges do when they make decisions, and how that contributes to the progression of law. Before delving into the decisions, it is important to explore the theory of legal realism and how it can be applied to the study of the law of the courts.

Justice Holmes has written about the way in which judges begin with a decision first, and only after that decision is made, do they come up with reasons to explain them. Similarly, Justice Cardozo’s explanation of the judicial process begins with the law, but ends in the same place where Holmes begins, and that is with judges deciding difficult cases on the basis of considerations that reach well beyond the black letter of the law.

Ultimately, the two justices offer early forms of judicial realism that intended to avoid a formulaic and logical approach to decision making. Holmes and Cardozo add to our more modern conversation of legal realism by offering theories that advocate for a judicial process where the law is necessarily (and properly) shaped by changing notions of justice and fairness.

There are many avenues of workers’ rights issues that could be reviewed in order to provide the most comprehensive overview of how the topic is treated by the New York Court of Appeals. This paper will focus on those worker’s rights issues as related to awarding worker benefits for on the job injuries. The research was further limited to three years to ensure that the same composition of judges decided all of the cases.*
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* 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.

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

Jerome Frank on Trial

By Zachary A. Phelps

Zach Phelps, a third year student at Albany Law School, is a proud graduate of Homer Central High School and the College of Saint Rose, and an officer in the United States Marine Corps. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

In a thrilling expose on the judicial system in the United States, Jerome Frank explores many of the major issues that surround the United States judicial process, pulling no punches and refusing to allow his voice on the matter to be muffled in his stimulating book, Courts on Trial.[1]

The beginning of his book delves into the problems that lawyers face with facts. Jerome Frank preaches about the importance of facts in the litigation process, and how hard it is to be a lawyer. Most of his musings come off as mere ramblings of a lazy and unmotivated lawyer. As he professes later in his book, the lawyer has to take what the situation gives him and do his best to represent his client and, if the system is as broken and against him as he seems to think, go forth and fix the problem.

Holmes and Cardozo

Early Contributions to the Progression of the Law
By Christina French 

Christina French, a third year student at Albany Law School, is the Editor-in-Chief of Albany Law School's Journal of Science and Technology. She works at New York State United Teacher as a Law Clerk for the Office of General Counsel. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

Two pieces, one written by Holmes[1] and another by Cardozo,[2] contribute to the study of the judicial process by articulating the theory of legal realism: the insights of realism to understanding what it is that judges actually do when they make decisions, and how that contributes to the progression of law. Holmes explains the way in which judges begin with a decision first, and only after that decision is made do they choose the reasons to explain them. Cardozo’s explanation of the judicial process begins with the law, but ends in the same place where Holmes begins--that is, with judges deciding difficult cases on the basis of considerations that reach well beyond the black letter of the law.

Ultimately, the two justices offer early forms of judicial realism that intended to avoid a formulaic and rigidly logical approach to decision-making. Holmes and Cardozo add to our more modern conversation of legal realism by offering theories that advocate for a judicial process where the law is necessarily (and properly) shaped by changing notions of justice and fairness.

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.

Holmes and Cardozo on Judicial Decisionmaking

A Contrast to Scalia and Rehnquist

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 as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

In his The Path of Law,[1] Oliver Wendell Holmes starts by defining the study of law as the prediction of judges’ determinations; that the whole of jurisprudence is creating prophesy and an organized system with which to make prophesy. Holmes is clear from the start that what he means by law is “the prophecies of what the courts will do in fact.” 

Holmes delves into what he sees as a widespread issue affecting learning and understanding of the law. The issue is confusion over and merging of morality and law. He gives the example of viewing the law through the eyes of a “bad man,” a perspective he returns to again and again. The idea is that, to a bad man, the law is a “body of dogma enclosed within definite lines.” The bad man only values knowing the law based on the “material consequences which such knowledge enables him to predict….” This distinction is of fundamental importance when it comes to prophesizing. In this section, Holmes argues that removing morality from law is the only way to see its honest functioning structure.