Albany Law Review

A student-run journal that publishes critical and analytical articles written by judges, lawyers, and law school professors, as well as notes and comments on legal topics written by Law Review members and other Albany Law School students. Academic and pro

Articles from Vol. 69, No. 3, Summer

"A Decent Respect to the Opinions of Mankind": Referring to Foreign Law to Express American Nationhood
What are we to make of references to non-U.S, law in Supreme Court opinions? (1) One place to begin is by distinguishing between uses and references. A court uses a source of law when that source provides some degree of authority to support a material...
Albany Law Review Symposium: Refinement or Reinvention, the State of Reform in New York: The Courts
FEBRUARY 10, 2006 I'd like to begin by explaining my presence, as well as my absence, today. First, my presence. The Law Review's invitation was an irresistible one. To be part of a program on state government reform--what an exciting subject...
Aristotle, Cicero and Cardozo: A Perspective on External Law
It has been my honor to be the faculty advisor to the Albany Law Review for the last fifteen years. Our law review, among the oldest student edited legal publications, (1) is also among the very best. This claim is not based on some ethereal or intangible...
Briefly Resuscitating the Great Writ: The International Court of Justice and the U.S. Death Penalty
I. INTRODUCTION A single judgment of a non-U.S. court, the International Court of Justice (ICJ) in The Hague, tackled troubling aspects of the post-conviction death penalty process in the United States. The ICJ decision, Avena, (1) had altered U.S....
Citation by U.S. Courts to Decisions of International Tribunals in International Trade Cases
The topic of the Symposium is the citation to foreign court precedent in domestic jurisprudence. I am going to take a somewhat different approach in my presentation. Instead of citation to foreign court precedent, I will discuss the citation by U.S....
Citing Foreign and International Law to Interpret the Constitution: What's the Point?
Some years ago, I was lecturing in Brazil and Argentina on constitutional issues, and I spoke one day to a group of Brazilian judges on criminal procedure and due process rights in the United States. When I was finished, up stood one very frustrated...
Contemporary Foreign and International Law in Constitutional Construction
My remarks today concern the use of international and foreign law as a source of authority in constitutional interpretation. First, I will discuss what it means to use foreign or international law as authority in the interpretation of the U.S. Constitution....
Foreign Law and Opinion in State Courts
Not long after the Supreme Court's decision in Lawrence v. Texas, (1) I was discussing the use of foreign and international law in constitutional interpretation with a federal judge (who shall remain nameless). After a few minutes, this judge, one...
Four Mistakes in the Debate on "Outsourcing Authority"
I. INTRODUCTION It is a great honor for me to participate in this symposium on outsourcing authority and to share the podium with such luminaries as Mark Tushnet, Ken Kersch, Susan Karamanian, John Baker, and John McGinnis. Albany Law School has...
Government Reform from an Executive Perspective
As someone who has been working in the Executive branch since 1995 for Governor George E. Pataki, (1) I intend to discuss New York State government reform from the Executive perspective. First, I will address how we in the Executive branch undertake...
New York at a Crossroads: Sustaining a Government Reform Agenda on the Frontlines with Executive, Legislative and Judicial Reform Initiatives
Perhaps the stars are aligned for meaningful government reform when every key player in New York State Government releases a package of proposed reforms to enhance efficiency and productivity in government and to restore and/or build public trust and...
New York's Immediate Need for a Psychotherapist-Patient Privilege Encompassing Psychiatrists, Psychologists, and Social Workers
INTRODUCTION Accused of strangling his girlfriend Gloria to death, Robert Wilkins testified at trial that his girlfriend had attacked him first, causing him to suffer visible slashes on his left wrist and on his abdomen. (1) Attempting to contradict...
"Outsourcing Authority?" Citation to Foreign Court Precedent in Domestic Jurisprudence & Refinement or Reinvention: The State of Reform in New York
The 2005-2006 academic year was a novel one, as the Albany Law Review sought to challenge its own precedent by hosting two symposia--the first in the Fall of 2005, which considered the propriety, methodology and potential impact of citation by United...
The Necessity for Constitutional Change
Thank you for the opportunity to be here with you today. For us reformers, the fact of this conference is reassuring, as is the fact that there are still some of us--quite a few of us--here for the afternoon session. My daughter Elizabeth Benjamin...
The Supreme Court and International Relations Theory
I. INTRODUCTION [W]hat could be more exciting for an academic, practitioner, or judge, than the "global" legal enterprise that is now upon us? Wordworth's words, written about the French Revolution, will, I hope, still ring true: "Bliss was it in...
To Understand Foreign Court Citation: Dissecting Originalism, Dynamism, Romanticism, and Consequentialism
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." Chief Justice John Marshall (1) "[The] constitution...
Unwise and Unnecessary: Statutory Caps on Non-Economic Damages in Medical Malpractice Cases and the Appellate Review Alternative
I. INTRODUCTION In June 1999, a New York jury awarded over $76 million dollars to Gaelle Prindilus, a woman who suffered brain damage when she was an infant because of the purported carelessness of the resident doctors who delivered her at Harlem...
Why Should I Have to Tell Them? the Necessary Role of the Judiciary in Achieving Reform
I. INTRODUCTION I am a litigator, and therefore, I am going to talk about litigation and reform phrased in the context of what I believe is the necessary role of the judiciary in achieving various kinds of reform. I'm going to discuss examples in...