Editor's Foreword

Article excerpt

Freedom of religion, freedom of expression, and freedom of the press.

Police encounters, automobile stops, search of private land, and electronic surveillance.

Self-incrimination, custodial interrogation, pre-interrogation warnings, and the right to counsel.

Unenumerated liberty, fundamental fairness, bodily integrity, and sexual privacy.

Slavery and the death penalty.

On these and so many other legal issues--maybe most--of vital importance to right and responsibility, to liberty and authority, to individual and community in the governance of a free society, state high courts have taken the lead. Historically, the highest courts of our nation's states have led the way for the nation itself and for the nation's high court. Indeed, much the same can be said not only of state courts collectively, but even of any single one of a number of the nation most distinguished state high courts.

Of course, New York's highest court, the Court of Appeals, is and, since it was instituted in 1846, has been counted among the nation's most influential judicial tribunals, state or federal. In fact, in every one of those aforementioned vital issues, the New York Court has been a, if not the, leader. (1)

Speaking through eminent judicial figures of the past--such as Hiram Denio, Robert Earl, Charles Andrews, Benjamin Cardozo, Cuthbert Pound, Irving Lehman, Stanley Fuld, Lawrence Cooke, and Charles Breitel, as well as those who have most recently led the Court, such as Sol Wachtler, Judith Kaye, and presently Jonathan Lippman--the Court of Appeals has been an independent, intelligent, and forceful voice in establishing precedents to safeguard what is precious and essential in the American "scheme of ordered liberty"(2)--to use Cardozo's own phrase.

It is for this reason that the Albany Law Review produces the annual issue of State Constitutional Commentary to study and celebrate the work of state high courts such as the Court of Appeals. And by "celebrate" is meant, of course, to chronicle, examine, analyze, critique, applaud, and criticize the work of these state courts, as well as the constitutional law and, more generally, public law issues with which they deal.

For the past seven years, this "celebration" has included the Chief Judge Lawrence H. Cooke State Constitutional Commentary Symposium. This roundtable, held each spring and named in honor of New York's former Chief Judge, the first chairperson of this journal's Board of Editors and a 1937 graduate of Albany Law School, has become one of the signature, most awaited, and enthusiastically attended events of its namesake's alma mater.

The reason is no mystery. The Cooke Symposium has brought the leading state jurists from around the country to participate in lively, frank, spirited discussions--and debates--about critical issues of public law, judicial decision-making, judicial selection, federalism, and other facets of courts, law, and politics.

In the last few years, for example, the Cooke Symposium hosted "Great Women, Great Chiefs." (3) That roundtable included Chief Justices Margaret Marshall of Massachusetts, Marsha Ternus of Iowa, and Jean Toal of South Carolina. Last year for the "State of State Courts", (4) New York's Chief Judge Jonathan Lippman moderated a freewheeling discussion with Chief Justices Shirley Abrahamson of Wisconsin, Christine Durham of Utah, and Chase Rogers of Connecticut.

Several years ago, the entire New York Court of Appeals participated in "Judges on Judges: The New York State Court of Appeals Judges' Own Favorites in Court History." (5) At that event, each of the Court's seven members selected a Judge of the past and explained the choice. Notably, then Chief Judge Judith Kaye chose her predecessor Lawrence Cooke, whose family--several generations of them--were present for the dedication of the annual symposium to him.

This year, the entire Court of Appeals returned. …