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. 66, No. 3, Spring

A Remarkable Jurist
As of December 31, 2002, the Arizona Supreme Court lost a most remarkable jurist. Justice Stanley G. Feldman's twenty-year tenure as one of five members of the Arizona Supreme Court contributed not only a brilliant mind but an enormous capacity for...
A Supreme Justice
In December of 2002, the Arizona Supreme Court lost an exceptional justice when Stanley G. Feldman retired from the bench. He served as a justice for twenty-one years, including a five year term as Chief Justice. During his long tenure, the Arizona...
De Tocqueville or Disney? the Rehnquist Court's Idea of Federalism
Steven G. Calabresi succinctly identified the three elements of the Rehnquist Court's revision of constitutional federalism. The contemporary Supreme Court is willing for the first time since 1937 to police the boundary lines of the congressionally...
Disregarding Intent: Using Statistical Evidence to Provide Greater Protection of the Laws
I. INTRODUCTION The year is 2015. The Governor of California has recently announced the startling statistic that fifty percent of the state government construction contracts awarded this year went to minority-owned businesses. This percentage is...
Editor's Foreword
Stanley G. Feldman has been with State Constitutional Commentary since its inception. As Chief Justice of the Arizona Supreme Court at the time, Feldman graced our inaugural masthead with his distinguished name and reputation as one of the nation's...
Federalism and the Death Penalty
The Supreme Court's commitment to federalism is nowhere stronger than in the jurisprudence of the death penalty, but the traditional justifications for state rights ring hollow in this context. It is axiomatic in the jurisprudence of the death penalty...
Federalism and the Florida Constitution: The Self-Inflicted Wounds of Thrown-Away Independence from the Control of the U.S. Supreme Court
"[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards." (1) For rather obvious reasons, fears for the health of our federal...
Horizontal Federalism in the New Judicial Federalism: A Preliminary Look at Citations
INTRODUCTION Oftentimes a party will argue before a state supreme court (1) that the court should undertake an independent analysis of its state constitution and recognize broader civil liberties protections than provided under the analogous provision(s)...
"Joltin' Joe Has Left and Gone Away": The Vanishing Presumption against Preemption
When Paul Simon asked, "Where have you gone, Joe DiMaggio?," Mrs. Robinson replied, "Joltin' Joe has left and gone away." (1) But if Simon was a law professor (what a loss to music!), the lyric might have been "[w]here have you gone, the presumption...
Justice Stanley Feldman: An Extraordinary Judicial Career
On December 31, 2002, Stanley G. Feldman retired as a Justice of the Arizona Supreme Court after twenty-one years of service on that court. For five of those years, he served as Chief Justice. Justice Feldman's retirement was not entirely voluntary....
Leveraging Federalism: The Real Meaning of the Rehnquist Court's Federalism Jurisprudence for States
The Rehnquist Court has been credited with, or accused of--depending upon one's perspectivc--creating a "federalism revolution." Undoubtedly, the Rehnquist Court has dusted off seemingly long-forgotten federalism provisions in the Constitution and...
Liberal Behind the Label?: A Comparative High Court Case Study of the New Mexico Supreme Court from 1997-2002
I. INTRODUCTION How does one begin to uncover the individual judicial ideologies often masked in the opinions and decisions of a court? Identifying the underlying political and philosophical positions of the members of a state high court is essential...
Michigan V. Long: A Twenty Year Retrospective
I. INTRODUCTION Respect for judicial federalism requires the Supreme Court to avoid deciding questions of state law when reviewing state court decisions. (1) The Supreme Court's power lies only in interpreting federal legal questions raised by these...
New Death Penalty Statue in Idaho
On June 24, 2002, the Supreme Court held that the jury trial provision of the Sixth Amendment requires that enumerated aggravating circumstances in a capital trial must be found by a jury and not by a judge sitting alone, and thus, the Court struck...
Perspective on American Library Association V. United States
On May 31, 2002, a three-judge panel of the U.S. District Court for the Eastern District of Pennsylvania decided American Library Ass'n, Inc. v. United States. (1) The decision declared a 2001 measure of the United States Congress known as the Children's...
Progressive Federalism? A Gay Liberationist Perspective
The notion that one man in ten is gay may be a Kinsey-inspired myth, but it is not an urban myth. (1) Researchers have documented a striking concentration of gay men in the country's largest urban centers. (2) There, nearly one man in ten identifies...
Revisiting Michigan V. Long after Twenty Years
In the 1983 decision of Michigan v. Long, (2) the United States Supreme Court held that when a state court bases its decision primarily on federal law, or state grounds that are interwoven with federal law, the Court will assume that it has jurisdiction...
Stanley G. Feldman: Federalism and the State Courts
I am honored to participate in the dedication of this issue of State Constitutional Commentary to Justice Stanley G. Feldman of Arizona. He has long been an insistent voice urging lawyers with difficult problems to consult the state constitution for...
Stanley G. Feldman: What One Lawyer Can Do
Stanley Feldman makes it sound like he stumbled into law school by accident, having failed in achieving his earlier goal of becoming a professional basketball player and also having lost interest in becoming a history professor. What attracted him...
Stare Decisis V. the "New Authority": The Michigan Supreme Court's Practice of Overruling Precedent, 1998-2002
I. INTRODUCTION The 2000 election for the Michigan Supreme Court went down in history as Michigan's most expensive judicial race ever. (1) In addition to having spent in excess of fifteen million dollars, the campaign was tarnished by vicious mud-slinging...
State Equal Protection: Its Diverse Guises and Effects
I. AN INTRODUCTORY CRITIQUE Notions of equality that have marked the American experience built upon a heritage dating from the Declaration of Independence and tracts of the Revolutionary era. (1) Yet the promise of this legacy, modest though it...
State Supreme Courts and Judicial Review of Regulation
By expanding the doctrine of state sovereign immunity, the United States Supreme Court has made it increasingly difficult for litigants to bring suit against state institutions as a matter of federal law in federal court. (1) Nevertheless, the option...
The New Southpaws: The Turning of the Nevada Supreme Court's Criminal Decisions
I. INTRODUCTION This high court study examines the Nevada Supreme Court's criminal rulings from 1997 to 2002. The Court's criminal rulings during this period provide over forty majority opinions that were concurrently published with separate opinions....
The Silver Anniversary of New Judicial Federalism
For those of us who have been writing and teaching about state constitutional law for several decades, it hardly seems possible that we have been at this endeavor so long. Nor does it seem possible that Justice Brennan's seminal article, State Constitutions...
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