The Ups and Downs of New York's Right to Counsel: The Cooke, Lippman, and DiFiore Courts

By Chloe Petry

Chloe Petry is a 2025 graduate of Albany Law School. Prior to attending Albany Law School, she earned a bachelor’s degree from SUNY Fredonia, studying Biology and Botany. In law school, Chloe was the Managing Editor for Production, Research, and Writing for the Journal of Science and Technology, Vol. 35. She was also the President of the Albany Law School Environmental Law Society.

New York’s state constitutional right to counsel is far more robust and expansive than its federal counterpart due to the New York Court of Appeals’ (“the Court”) extensive review of the right, which furthered constitutional protections for the accused. However, as this paper will discuss, the Court’s review has not always been as progressive, nor has it continued to build on existing precedent.

It appears the Court has taken steps backwards and weakened the right. The New York Constitution holds that any “suspect in a criminal matter . . . who requests representation may not be questioned further in the absence of an attorney.” Also, “[b]y extension, a suspect who has invoked the right cannot voluntarily waive the right to counsel without an attorney present.”  This right is described as “indelible:” s defined as “marks that cannot easily be removed.” 

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To read the paper, open HERE.

A Court in Crisis: The New York Court of Appeals in American Conflict

By Alec G.H. Levesque

Alec Levesque graduated cum laude from Albany Law School in 2025. Before attending Albany Law School, he earned a B.A. in Classics from the College of the Holy Cross.

During law school, he interned twice at the Albany County District Attorney’s Office, as well as for the Third Judicial District Administrative Office. In addition, he interned in the Health Law Clinic at the Edward P. Dwyer Justice Center.

Alec wrote this paper for Professor Bonventre’s Court of Appeals Intensive Seminar.

When conflict arises that threatens a society’s very existence, every parameter of that society is put to the test–especially, perhaps, its legal institutions. Although perilous, it is this test that often provides the amplest opportunity for the law to evolve. In the case of the United States, while many may believe that this evolution stems exclusively from the Supreme Court, that court is far from alone.

This paper examines how New York's highest court, the Court of Appeals, has contributed to the nation’s law during periods of major conflict in the United States. This was true for the Civil War, World War I, the Great Depression, World War II, and modern civil rights movements.

The purpose of the paper is to show that (1) the Court has historically played a leading role in shaping the law during such periods, and (2) that the conflict has conversely had a substantial effect on the Court’s own evolution.

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To read the paper, open HERE.

New York’s “Forever Wild” and the Chiefs

Three Chief Judges Opining on the State Constitutional Mandate

By E. Conor Graham

E. Conor Graham is a 2024 graduate of Albany Law School. He earned his bachelor's degree from Siena College, studying philosophy and international relations and affairs.

In law school, Conor was the Executive Editor for Lead Articles of Volume 87 of the Albany Law Review. He also interned at the United States Court for the Northern District of New York and at K&L Gates LLP.

Conor began his legal career as a law clerk to the Honorable Richard K. Eaton at the United States Court of International Trade. 

Article XIV, Section 1 of the New York State Constitution, “the Forever Wild clause,” sets out that “[t]he lands of the state . . . constituting the forest preserve . . . shall be forever kept as wild lands.  They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed, or destroyed.” It is a unique provision, unlike any other found in the federal or another state constitution, and it protects nearly three million acres of state-owned Forest Preserve land in New York State.

The aim of this paper is to consider both the history and the trajectory of the Forever Wild clause as it comes before New York's highest court, the Court of Appeals, through examining three important decisions related to the Forever Wild clause authored by three different Chief Judges of the court. Further, this analysis has the added benefit of focusing on the court’s leaders—the Chief Judges—presiding at the time of each case. Each section includes a brief discussion of the respective Chief Judge whose opinion will be discussed, followed by that judge’s opinion dealing with the Forever Wild clause.

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To read the paper, open HERE.

Chief Judge Lawrence H. Cooke’s Legacy

His Lasting Impact on the New York Court of Appeals

By Tyler J. Wilson

Tyler Wilson is a 2021 graduate of Albany Law School. During law school, he served as Managing Editor of Business and Production for the Albany Government Law Review.

Prior to attending law school, he received a Bachelor’s degree from SUNY Buffalo in legal studies and was a member of the Men’s Baseball Team. Tyler is currently an associate (pending admission) in Buffalo for the law firm, Gibson, McAskill & Crosby, LLP.

The New York Court of Appeals has a rich and storied history. One reason for this is the many excellent judges who have sat on the bench. One judge who has a significant role in shaping the court was Chief Judge Lawrence H. Cooke. He did so by authoring opinions on important issues which promoted justice and were based on solid legal reasoning.

Chief Judge Cooke would go on to have a lasting impact on the court. His small-town roots and family values shaped his judicial philosophy. Chief Judge Cooke truly believed in fairness and justice for all, and he showed this in his majority opinions and dissents.

Cooke was also a vigorous advocate for independent New York State Constitution Law, and he was a leader in helping to improve the legal profession in the state of New York. It is important to look back on Chief Judge Cooke’s legacy and the history of the Court to understand how it got to where it is today and where it may be headed.

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To read the paper, open HERE.

New York’s Gray on Investigative Stops

How the Court of Appeals has Restricted Stops of Citizens by Police

By Gerald P. Casertino

Gerald Casertino is currently an incoming associate with Murphy Burns LLP in Albany, New York, focusing on municipal defense and §1983 actions. He has also served as a police officer since 2017.

Jerry graduated summa cum laude from Albany Law School with his J.D. in 2021. He was a member of the Albany Law Review and a Sponsler Fellow/Teaching Assistant in Criminal Law, Torts, and Contract Law. He holds a bachelor’s degree, magna cum laude, from Siena College and is originally from Glens Falls.

The year 2020 will be lauded as forever changing policing, especially in New York State. But the necessity to curb criminal activity and ensure public safety remains.

High-profile police-related deaths, rising crime, and the implementation of bail and discovery reform, all combined with the New York Court of Appeals’ decision in People v. Hinshaw, make the job of police officers more difficult. This paper will address how the New York Court of Appeals has restricted investigative stops beyond what is required by the federal constitution.  

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To read the paper, open HERE. 

The Supreme Court Sets the Bar, New York’s Court of Appeals Raises It

By Matthew Rimkunas

Matthew Rimkunas, a third-year student at Albany Law School and the Editor in Chief of the Center for Judicial Process, graduated magna cum laude from the University at Albany with a Bachelor of Science degree in Accounting and minors in both Business and Sociology.

Matthew has experience on both sides of the criminal justice system, interning at The Law Offices of Gerard V. Amedio, P.C. as well as the Rensselaer County District Attorney’s Office. He also interned at Ayco, a Goldman Sachs Company, where he worked on tax and estate planning matters. Presently, he is an intern with the Claims Bureau of the New York State Office of the Attorney General, assisting in the defense of tort and contract actions against the State.

Beyond Matthew’s internship experience, he was a participant in the 2019 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition and is currently a Research Assistant for Professor Patrick M. Connors.

The fundamental principles of federalism that ensure state integrity throughout the nation are nowhere more evident than in the state high courts. They are most easily observed in states like New York that vigorously protect civil liberties and frequently blaze the trails that other state—and federal—courts eventually follow. On numerous occasions, the New York Court of Appeals has rejected United States Supreme Court precedents as insufficient for the standards demanded by the New York State Constitution.

This paper highlights instances where New York’s high court went above and beyond the protections afforded by the Supreme Court. Each time it did, the Court of Appeals diverged from a federal constitutional standard to provide greater protections under its State Constitution. As a result, our state’s constitutional law jurisprudence has incrementally transformed into the preeminent body of law that New York is now so well known for. 

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To read the paper, open HERE.

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.
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To read the paper, open HERE.

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.

Immuno AG: The Court of Appeals Strikes Back

By John Chiaramonte

John Chiaramonte is a third-year student at Albany Law School. He graduated from Wake Forest University in 2012 with a double major in Political Science and English.

John currently works part-time as a legal assistant for New York Business Development Corporation, a small business lending company. He is also the assistant coach for the men’s and women’s tennis teams at Siena College.

While his main focus in law school has been business transactions, John found his interest was piqued researching defamation law in New York. This paper was prepared for Professor Bonventre’s Court of Appeals Intensive Seminar.

For years the New York Court of Appeals has served as the beacon of reason for many other state courts. It was no different when the court confronted the issue in Immuno AG. v. Moor-Jankowski (Immuno II).

The Immuno case serves as a great example of a defining moment where the New York Court of Appeals differentiated state law from federal law, refusing to be bullied by the highest federal court in America. The purpose of this paper is to provide a comprehensive look at the seven year Immuno trilogy.

The paper begins with a background of state and federal law, then examines the Court of Appeals’ first ruling in Immuno I. It proceeds to the Supreme Court’s decision in Milkovich v. Lorain Journal Co., and ends with the Court of Appeals’ second ruling in Immuno II.

This paper concludes that the ruling of the Court of Appeals in Immuno II reestablished a foothold for New York in libel cases.

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To read the paper, open HERE.

Supreme Court of Kentucky: Dual Sovereignty Approach to State Constitutional Law

By Michelle K. Piasecki
Michelle Piasecki, a 2013 summa cum laude graduate of Albany Law School, is an associate at the law firm of Couch White LLP, in Albany, New York, and primarily practices in the fields of energy and environmental law.
While at Albany Law, Michelle was a research assistant for professor Timothy Lytton.  As a member of the Albany Law Review, she served as Executive Editor for State Constitutional Commentary during her third year. She also served as the Executive Editor for the Center.
This essay--the latest of several papers to be published by the Center--was originally prepared for the State Constitutional Adjudication Seminar.

State supreme courts across the country approach state constitutional adjudication in different way. Some look primarily to their own state law, some primarily--and some, only--to federal law, and others equally to both or simply make no distinction between the two.

The Supreme Court of Kentucky applies the so-called "dual sovereignty" method. For example, in Riley v. Gibson (2011), a Jefferson Circuit Court Judge had held a closed hearing to determine if a member of the jury was in contempt of court for disobeying the judge’s order to “avoid publicity about the case.”

In issuing its decision, the Supreme Court of Kentucky analyzed both federal and state law without specifically relying on one or the other. Several other recent decisions by the Kentucky Supreme Court produced similar results.

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To read the essay, open HERE.

The New York Court of Appeals: Recent Search and Seizure Jurisprudence

By Mackenzie Keane Plaske
Mackenzie is currently a first-year associate at the law firm of Iseman, Cunningham, Riester & Hyde, LLP in Albany, New York, practicing primarily in the field of health care. She graduated magna cum laude from Albany Law School in May 2013.
While at Albany Law, Mackenzie participated in the Health Law Clinic and was a teaching assistant for Civil Procedure, Torts and Criminal Law.  Additionally, she was a Finalist in the Domenick L. Gabrielli Appellate Advocacy Competition.  As a member of the Albany Law Review, she also served as Executive Editor for New York Appeals during her third year.
This paper was prepared for the State Constitutional Adjudication Seminar, Spring 2013. It is Mackenzie's second publication for the Center. (See The New York State Court of Appeals and the Exclusionary Rule: From the Kaye Court to the Lippman Court, March 5, 2012.)


The line between reasonable and unreasonable searches and seizures has proven difficult to delineate. Courts are unable to dictate with particularity when a search or seizure would be permissible or impermissible, because each situation calling for such an analysis presents unique facts and circumstances.

When interpreting and rendering decisions on search and seizure, the Court of Appeals may ground its opinions upon independent state constitutional grounds. Unlike other states, such as Florida, New York has not adopted a lockstep approach to constitutional analysis. Therefore, the Court of Appeals is free to provide more constitutional protection than that provided by the U.S. Supreme Court, and that is exactly what the Court of Appeals has done.

Sometimes, but not always, the Court’s decisions align with those of the U.S. Supreme Court. But, whichever way the decisions fall, the Court of Appeals cites its substantial interest in protecting the rights of the citizens of New York State.

This paper will explore some of the recent Court of Appeals decisions involving search and seizure rights that fall within the ambit of New York State Constitution’s prohibition on unreasonable searches and seizures.
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To read the paper, open HERE.

George Bundy Smith, New York Court of Appeals, 1992–2006

Patterns in Criminal Justice

By Robert C. McIver
Robert McIver, a third year law student at Albany Law School, graduated cum laude from Le Moyne College in 2010 where he majored in History and Political Science and played Men's Lacrosse.  He has served as a teaching assistant to Professors Deutsch and Heverly.  Currently he is the Executive Editor for State Constitutional Commentary with the Albany Law Review and is a research assistant for Professor Connors.
He prepared this essay for Prof. Bonventre's State Constitutional Adjudication Seminar, Spring 2013.

             In analyzing several of George Bundy Smith’s opinions,[*] I have recognized patterns in how he viewed the criminal justice system and how he interpreted state and federal constitutional questions.  Overall, I found that Judge Smith, consistent with Herbert Packer's due process model,[1] recognized the importance of fair procedural methods. 

In People v. Benevento,[2] the Court of Appeals analyzed the right to guaranteed effective assistance of counsel in New York State.  Judge Smith wrote for a unanimous court, holding that New York State did not review attorney error using the federal test articulated in Strickland v. Washington.[3]  Rather than focusing on whether confidence in the outcome of the trial was potentially undermined, as the U.S. Supreme Court did in Strickland, Judge Smith’s opinion held that attorney error would depend on whether the defendant was afforded “meaningful representation.”[4]  

Judge Victoria Graffeo’s Approach to Constitutional Criminal Procedure

By Chelsy Jones
Chelsy Jones, a May 2013 graduate of Albany Law School, is a Law Clerk for the West Firm, PLLC in Albany.  Chelsy is a magna cum laude graduate of Siena College with a degree in Political Science.  While in law school, she was a Senior Editor at the Center, a legal intern for the Domestic Violence Hybrid Prosecution Clinic, and a Research Assistant for the Albany Law School Clinic and Justice Center.  Chelsy also worked year round as a legal intern at the Schenectady County District Attorney's Office, and acted as the student ambassador for the Center for Excellence in Law Teaching and a member of the Teaching Enhancement Committee.
She wrote this essay for the State Constitutional Adjudication Seminar, Spring 2013.

            In the realm of criminal constitutional issues, a brief review of recent Court of Appeals opinions authored by Judge Victoria Graffeo reveals an interesting pattern of decisions against the rights of the accused and a strong reliance on state precedent rather than federal.

            In People v. Grice,[1] Graffeo authored an opinion dealing with the constitutional right to counsel and when said right attaches.  In Grice, the defendant argued that his indelible right to counsel attached at the moment his father told the police that he had an attorney.[2]  Judge Graffeo, however, disagreed, and held that actual appearance or communication by the attorney is required for attachment.[3]  She based her decision entirely on the New York Constitution and cited only New York cases in support of her position, relying heavily on precedent.[4]  Graffeo specifically addressed the evolution of New York’s right to counsel jurisprudence and the importance of pragmatic and simple tests to avoid irregularity and uncertainty. 

            Two years earlier, Judge Graffeo authored a precedent-setting decision dealing with search and seizure rights in New York in People v. McIntosh.[5]

The Arizona Supreme Court: The Honey Badger of State Constitutional Analysis

Grace Mellen, a third year law student at Albany Law School, graduated magna cum laude from SUNY Cortland with a degree in Political Science and a minor in History. Presently, she interns with The Honorable David A. Weinstein at the New York State Court of Claims. She has also interned with the New York State Office of the Attorney General. Grace is also a Senior Editor for the Center for Judicial Process.
Grace prepared this paper for Professor Bonventre’s State Constitutional Adjudication seminar, spring 2013.

Since the United States Supreme Court (“U.S. Supreme Court”) handed down the landmark Terry v. Ohio decision in 1968, permitting warrantless stop and frisks based on reasonable suspicion, the issue of search and seizure has been unsettled as states determine how to reconcile the Terry decision with their own constitutions.

Some states, such as Illinois, are comfortable applying the standards of the U.S. Supreme Court to their own constitution, as long as there is no glaring language or legislative history that would force them to do otherwise. Other states, such as New Jersey and Washington, have interpreted their constitutions to offer their citizens more protection against unreasonable searches and seizures, arguing that the provisions within their state constitutions mandate this enhanced protection.

This paper will examine whether the Arizona Supreme Court has chosen to follow the parameters established by U.S. Supreme Court under the Fourth Amendment to resolve search and seizure issues, or if they instead rely on the Arizona State Constitution as their guide. To do this, five cases involving search and seizure issues from 2004 to 2012 will be analyzed. In order to see if the Court follows a clear method of state constitutional analysis, this paper will consider whether the Court relies on the Arizona State Constitution or precedent from the Supreme Court of Arizona.

This paper will also examine whether the Court expands protection against unreasonable searches and seizures, or if it has merely followed the federal parameters set out by the U.S. Supreme Court.

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To read the entire paper, open HERE.

"THE UNTOLD SECRETS OF EAGLE STREET"

 As Told by the Judges of the Court of Appeals Themselves!

The 7th Annual Chief Judge Lawrence H. Cooke Symposium

Thursday, March 21

5:00 - 7:00pm

Albany Law School

For more information, click HERE.

The Right of Undocumented Immigrants to State Funded Public Benefits under the New York Constitution

By Steven Sacco

Steve Sacco is a dual degree student, pursuing a Masters in Social Work at the SUNY Albany School of Social Welfare while a student at Albany Law School. He is interested in advocating for the rights of marginalized communities, particularly for undocumented migrants, immigration detainees and prisoners. He is also interested in learning and writing more about affirmative constitutional rights under the state and federal constitutions, such as the rights to counsel in a criminal trial, to healthcare, and to public benefits.
Mr. Sacco prepared this paper for the State Constitutional Adjudication Seminar, Spring 2012.
Steve has previously been published by the Center. (See Constitutional Guardianship in State Courts, April 9, 2012.)

There are an estimated 635,000 undocumented residents in New York. While many of these individuals do not need or do not have the income to qualify for public benefits, some certainly do. In New York City for example, between 11 and 14 percent of undocumented residents earn less than $20,000 a year.

Generally, and with few exceptions, undocumented residents are not qualified to receive any non-emergency federal public benefits under federal law. Title IV of the Personal Responsibility and Work Opportunity Act (PRWORA) of 1996 however, effectively states that undocumented residents are ineligible for state or local-funded public benefits as well, unless a state enacts, "after August 22, 1996," a new law that "affirmatively provides for such eligibility."

The New York State Court of Appeals decision in the matter of Aleissa v. Novello is often cited as the ultimate authority for the provision of non-emergency public benefits to legal permanent residents (LPRs) and other "qualified immigrants," in New York State, and as such, is a necessary starting point for our discussion.*

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

Connecticut’s Chief Justice Chase T. Rogers

A Review of Judicial Review

By Bronson C. Stephens

Bronson Stephens, a 2012 graduate of Albany Law School, was 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 paper was written for the State Constitutional Adjudication Seminar, Spring 2012 semester.
Bronson has previously been published by the Center several times. (See, State High Courts Taking Their Rightful Place, April 15, 2012; Bankruptcy’s (Relatively) Even Keel at the Court: An analysis of nine justices’ voting patterns, 1992 – 2000, Feb. 22, 2012; Holmes and Cardozo on Judicial Decisionmaking: A Contrast to Scalia and Rehnquist, Nov. 13, 2011.)

This paper focuses on the non-majority opinions authored by Chief Justice Rogers during her tenure on the Connecticut Supreme Court. Through an analysis of the first seven opinions, attempts to shed light on her jurisprudence as the Chief Justice.

Chief Justice Rogers received her JD from Boston University in 1983.  After many years practicing law in the private sector, she was appointed to the Connecticut Superior Court in 1998 by Governor John Rowland.

Rogers served on the superior court bench until 2006, when Governor Mary Rell nominated Rogers to the appeals court, an appointment she held only briefly as Governor Rell appointed her to the Connecticut Supreme Court in 2007.

Although Justice Rogers was sworn to the bench in April of 2007, she did not author a separate opinion from the majority until August, 2008. She subsequently authored two more separate opinions in 2009, six in 2010, three in 2011, and released one more in 2012 by the time of this writing. The first seven of these opinions are considered in chronological order.*
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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

Gay Rights & the Judicial Process

Connecting the Dots Behind Gay Rights Decisions

By Matthew Newman
Matthew "Aidyn" Newman is a class of 2012 graduate of Albany Law School with a specialty in Criminal Law. He received his undergraduate degree in East African studies from Union College, where he researched his thesis on Japanese yakuza and spent a semester abroad studying at Kansai Gaidai in Osaka, Japan.
This paper was prepared for the Judicial Process Seminar, Fall 2011.

One of the greatest challenges confronting a judge is how to decide a case.  Some judges adhere to "originalism," others are "literalists."  Some judges take into account the consequences of their actions, others believe this to be the job of the legislature.  No matter what methodology they use, there is always a secret inner conflict in every judge, between the "realist" and the "formalist."

The "formalist" judge is a neutral observer, nothing more.  He or she applies the facts of any given case to the legal framework in question and draws a conclusion based on these factors.  The "realist," on the other hand, cannot help but to draw upon his or her own personal experiences, morals, and leanings.

This paper will examine four important gay rights cases decided by four courts in an attempt to discern just how palpable the "hidden" morals and ethics of individual judges on these courts are.  First, it will examine the Supreme Court and Justice Scalia's dissent in Lawrence v. Texas.  Then, in Fricke v. Lynch, it will examine Chief Judge Pettine and whether he fits the "realist" paradigm.  Next, the majority's opinion in Goodridge v. Department of Public Health will provide a contrast to the dissent in Lawrence.  Finally, Varnum v. Brien was chosen as a stark contrast to Goodridge.*
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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

State Constitutional Claims: The Important Role of Attorneys in State Courts

By Anna R. Mumford
Anna Mumford, who graduated from Albany Law School this past spring, was the Managing Editor for Business and 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).
An  essay of hers was previously published by the Center. (See Decisional Approaches to State Constitutional Claims, April 15, 2012.)
She prepared this paper for the State Constitutional Adjudication Seminar, Spring 2012.


The U.S. Supreme Court has recognized that a state has the “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” Whether a state judiciary will construe its own state constitution in a way that affords this broader protection, however, rests principally on attorneys who bring state constitutional claims in state courts.

Attorneys play a critical role in the development of state constitutional law. Attorneys have the duty to properly raise the claim under a state constitution, independently and adequately argue the claim, and persuade the state court to grant greater individual rights under the state constitution than those afforded by the U.S. Constitution.

This article begins with a discussion of the various approaches adopted by state courts in deciding state constitutional issues. The article then provides an overview, based largely on a survey of decisions of the highest courts in several states, on the proper presentation of a state constitutional claim and the consequences if an attorney fails to bring an adequate state constitutional law challenge.

At the outset, it is important for attorneys to understand, not only the relationship between state constitutions and the federal Constitution, but also the approach state courts adopt to analyze state constitutional claims.  “Failure to appreciate the proper sequence of how state and federal constitutional claims are addressed can lead to a great waste of resources of counsel, clients, and the court.”*
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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

Aid to the Needy in State Constitutions

State Court Treatment of Positive Rights Affirmative Duty Provisions

By Laura K. Bomyea
Laura 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, a Student Editor on the Albany Law Review and the New York Municipal Lawyer, and a Research Assistant with the Government Law Center. She also works as a Law Clerk with Young/Sommer LLC.
This paper was prepared for the State Constitutional Adjudication Seminar, Spring 2012.

Judge Posner famously said “[t]he men who wrote the Bill of Rights were not concerned that [the] government might do too little for the people but that it might do too much to them.” As such, our federal Constitution is concerned primarily with preventing the government from infringing on such rights of individuals as the right to speak and worship freely. By portraying the U.S. Constitution as “a charter of negative rather than positive liberties,” the philosophy expressed by Posner has essentially positioned the Supreme Court as the arbiter of when the government has done too much.

But many Americans still enjoy a panoply of affirmative rights—to education, to a clean environment, to public assistance programs for the needy—which (ideally) protect them from their government doing too little on their behalf. These “positive” rights are bestowed not by the U.S. Constitution, but by state constitutions, through provisions that urge or, in some cases, mandate state legislatures to act in a way that protects and furthers certain public policy goals.

At least twenty-three state constitutions include provisions for the protection of the needy. Some provisions simply empower state legislatures to develop programs, facilities, and services to assist the poor, while others give state governments a broad grant of authority to take action to care for the needy. These states vary widely in how often constitutional protections for the needy are litigated. And these states’ judiciaries vary widely in how active a role they play in enforcing the promises of these constitutional protections.*

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* Citations to references in this introduction are available in the paper.

To read the entire paper, open HERE.