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. 60, No. 5, Summer

A Case of Good Intentions: The Vermont Supreme Court and State Constitutional Protection of Civil Rights and Liberties
The mere mention of Vermont conjures up images of a rocky and rugged state inhabited by people no less rugged and independent. In light of these character traits, both of the state and its people, it should come as no surprise that the state's highest...
A Cause of Action for Damages under the State Constitution
"When the law immunizes official violations of substantive rules because the cost or bother of doing otherwise is too great, thereby leaving victims without any realistic remedy, the integrity of the rules and their underlying public values are called...
A Liberal Theocracy: Philosophy, Theology, and Utah Constitutional Law
I. INTRODUCTION The territory, and later the state, that became known as Utah was dominated by a religious community that had been persecuted for its beliefs and practices. Many observers understandably might expect that the Utah Constitution,...
Chi Lascia la Via Vecchia per la Nuova Sa Quel Che Perde E Non Sa Quel Che Trova: The Italian-American Experience and Its Influence on the Judicial Philosophies of Justice Antonin Scalia, Judge Joseph Bellacosa, and Judge Vito Titone
I. Introduction In trying to describe how judges decide cases, the renowned Supreme Court Justice and New York Chief Judge Benjamin Cardozo once observed, "[w]e may try to see things as objectively as we please. None the less [sic], we can never...
Does an Equal Rights Amendment Make a Difference?
Because the proposed Equal Rights Amendment (ERA) to the United States Constitution was never ratified, one cannot know what its impact might have been. At the state level, however, the consequences of a constitutional gender equality guarantee can...
Interpreting the "Sexual Contract" in Pennsylvania: The Motivations and Legacy of Commonwealth of Pennsylvania V. Robert A. Berkowitz
Commonwealth v. Berkowitz,(1) the Pennsylvania Supreme Court's 1994 ruling affirming the reversal of a 1992 rape conviction, drew considerable attention toward the broader and continuing controversy surrounding the legislative drafting and judicial...
Narrative and Jurisprudence in State Courts: The Example of Constitutional Challenges to Sex Conduct Regulation
Success in these matters is as mathematicians would say, a function of the advance we have made in civilization.... We must not expect too much from formal changes; we may put our finger on this or on that which may be amended, and if...
Of Elephants, Donkeys, and Black Sheep in Their Midst: State Action Doctrine Thwarts Log Cabin Republicans' Bid to Gain a Place in GOP's Tent
Is a political party free to exclude groups and causes it does not want within its fold? In a recent decision, the Texas Supreme Court held that the exclusion of the Log Cabin Republicans, a group of gay and lesbian Republicans seeking acceptance...
Prosecutorial Discretion in Charging the Death Penalty: Opening the Doors to Arbitrary Decisionmaking in New York Capital Cases
"The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity."(1) Introduction On March 7, 1995, New York Governor George Pataki signed a death penalty bill that was in the making...
"Rights Talk" about Privacy in State Courts
I. Introduction The constitutional right to privacy remains one of the most controversial areas of civil liberties. There are procedural objections to the way privacy was "read into" the United States (U.S.) Constitution by liberal activists...
State Constitutional Criminal Adjudication in Washington since State V. Gunwall: "Articulable, Reasonable and Reasoned" Approach?
Recourse to our state constitution as an independent source for recognizing and protecting the individual rights of our citizens must spring not from pure intuition, but from a process that is at once articulable, reasonable and reasoned.(1)...
State Constitutional Law in the Land of Steady Habits: Chief Justice Ellen A. Peters and the Connecticut Supreme Court
Introduction Over her nearly two decades on Connecticut's high court, former Chief Justice Ellen Ash Peters(1) has earned respect as a scholarly jurist(2) and an innovative administrator.(3) Citing a desire to write more opinions, resume scholarly...
Term Limits, the State Courts, and National Dominion: The Vicissitudes of American Federalism
Introductory Note and Retrospective Disillusionment with the political process, brought on in part by extravagant perquisites and their abuse by public officials, has led to persistent calls for reform. The "powers of incumbency," it is charged,...
The Green Mountain Boys Still Love Their Freedom: Criminal Jurisprudence of the Vermont Supreme Court
I. Introduction This Comment is a decision making profile of the Vermont Supreme Court in state constitutional criminal cases. This Comment considers constitutional criminal decisions rendered over the past. decade which reveal the attitude...
The Supreme Court of Alaska: Unique and Independent like the People of the Last Frontier
I. Introduction Is the Alaska Supreme Court "`a north star that could guide other courts?'"(1) Some have suggested that with its independent approach to state constitutional adjudication, the supreme court of the "Last Frontier" is poised to...
You Can't Get There from Here: The Impact of California's Proposition 209 on Same-Sex Marriage
On Tuesday, November 5, 1996 California voters amended their state constitution by approving Proposition 209, sometimes referred to as the California Civil Rights Initiative or CCRI. The vote tally was 54.6% - 45.4%, a margin of nearly 900,000 votes....