Albany law review
About: Albany law review is an academic journal. The journal publishes majorly in the area(s): Supreme court & Statute. It has an ISSN identifier of 0002-4678. Over the lifetime, 594 publication(s) have been published receiving 3056 citation(s).
Papers published on a yearly basis
Abstract: I INTRODUCTION The enforcement of anti-drug laws and the consequences of drug abuse and addiction have impacted the nation's criminal justice system in profound ways over the past twenty-five years(1) Police departments and other law enforcement agencies have paid increasing attention to drug crimes, legislatures have passed more and more punitive laws against the use and sale of illegal drugs, and access to treatment has been limited for those subpopulations of drug users who are most likely to be targeted by the criminal justice system for drug-related offenses As a result, burgeoning numbers of drug offenders have flooded jails and prisons, and court and probation caseloads have mushroomed(2) Beginning in the 1980s, many urban police departments expanded their antidrug enforcement activities, from trying to penetrate drug-dealing organizations and arrest large-scale traffickers to targeting lower-level street dealers with undercover police officers(3) Police departments have increasingly placed officers on the beat in a significant expansion of community policing Most states in recent years also have legislated stiffer consequences for drug law violations(4) Between 1980 and 1998, the number of arrests nationwide increased by 40%, from 10,441,000 to 14,528,300(5) One of the largest increases in arrest rates has been for violation of laws prohibiting drug sales, distribution, and possession--up 168% during this time period, from 580,900 to 1,559,100(6) Between 1980 and 1998, arrests for drug law violations grew at four times the rate of increase for violent felonies (up 42%) and arrests for property crimes decreased by 3%(7) Although arrests for driving under the influence (DUI) did not increase between 1980 and 1998, there were over 14 million DUI arrests in 1998, more than 9% of all arrests in the United States(8) Between 1980 and 1998, the number of inmates in the United States more than tripled from 501,886 to more than 1,825,000(9) The state prison population increased by 299% (from 295,819 to 1,178,978 inmates)(10) The federal prison population increased by 417% (from 23,779 to 123,041 inmates), while local jail inmates increased by 225% (from 182,288 to 592,462)(11) II DRUG-INVOLVED OFFENDERS Drug use is the norm among those arrested and held for arraignment Among samples of adults arrested in Manhattan during 1998,(12) 77% of males tested positive for any illegal drug, as did 82% of females(13) A little less than half (47%) of males and 67% of females were positive for cocaine, and 16% of males and 22% of females tested positive for opiates(14) Nationally, 65% tested positive for any illegal drug, including 38% positive for cocaine and 8% for opiates;(15) 15% of arrestees had injected drugs at some time in their lives(16) In addition, 11% of arrestees in 1997 reported ever having been dependent on crack, 4% on cocaine, and 5% on heroin(17) Overall, 79% of arrestees are "drug-involved," meaning they tested positive for an illegal drug, had used illegal drugs recently, had histories of drug dependence or treatment, or were in need of treatment at the time of their arrest(18) Data from national surveys also demonstrate substantial drug involvement with illegal drugs among offenders sentenced to probation In a 1995 national survey of a random sample of offenders on probation, 14% of probationers were under the influence of drugs at the time of the offense,(19) and 47% were under the influence of drugs or alcohol(20) In addition, 43% of probationers had histories of regular illegal drug use,(21) 31% had ever used cocaine,(22) and 12% had used opiates or heroin? Data on prison and jail inmates also paint a dramatic picture Nationally, in 1997, 83% of state prison inmates were substance-involved(24) They violated drug or alcohol laws, were under the influence at the time of their offense, they committed their crime to get money for drugs, have a history of regular illegal drug use, or a history of alcohol treatment …
Abstract: Whenever any new type of cause arises, the primitive device is to set up a new court .... [I]n a time in which unification is sorely needed, the tendency to make new courts is still strong with us.(1) I. INTRODUCTION: THE EMERGENCE OF A JUDICIAL INNOVATION Judicial Fad or Catalyst for Fundamental Change in the Courts? By all measures, the growth of drug treatment courts in the United States has been extraordinary since the establishment of the first court in Dade County, Florida in 1989.(2) There are upwards of 425 courts reportedly now in operation and others in some stage of planning or preparation.(3) Dean Pound's comments from just after the turn of the last century offer a historical precedent for posing useful questions about the extent to which the drug court movement represents significant change in the way courts deliver justice and about why criminal courts are the preferred vehicle for accomplishing these aims.(4) Pound's explicit criticism that the establishment of the specialized courts of his time (e.g., juvenile court, family court, probate court) represented poorly thought-out, short-sighted responses to "any new type of cause" or problem-of-the-moment deserves serious consideration in assessing the real contributions of drug courts.(5) Were he alive today, he would most certainly be concerned about the sudden popularity of the practice ("primitive device") of setting up new "problem-solving"(6) or "problem-oriented"(7) courts to address particular, extra-legal problems commonly associated with the citizens involved in the criminal caseload. His critical questioning would almost certainly extend to increasing adoption of community courts, domestic violence courts, mental health courts, gun courts, teen courts, re-entry courts and other courts around the nation specializing narrowly in certain categories of defendant and offender problems. Pound's concern was based on his belief that the criminal courts (really, the "administration of justice in the modern city") should operate as an integrated, cohesive whole, flexible enough to resolve the wide variety of matters before them.(8) He argued that their mission was weakened by the fragmentation, dilution of resources, duplication of effort, and ineffectiveness that was likely to result when separate, competing, courts were narrowly dedicated to focus on very particularized problems.(9) Pound's critical perspective on the function of the criminal courts raises questions about the fairly striking adaptations of court procedure associated with treatment drug courts and their progeny. Taken at its most challenging, and as envisioned by its most ardent proponents, the drug court model potentially represents the first stages of a fundamental paradigm shift in justice away from a predominantly punitive orientation (a.k.a. "justice as usual") toward an approach that seeks to confront and meliorate the problems associated with persons who appear in the criminal caseload,(10) The challenges implicit in this approach are fundamental and draw into the criminal court setting expertise from health and behavioral sciences as well as linkages with a variety of social services in relationships and configurations that produce a new mix of values, aspirations and methods to guide the judicial process.(11) To proponents, drug courts represent a major and promising departure from what had become an unrewarding routine of processing, punishing and re-punishing drug offenders to little avail.(12) Instead, the drug court model takes on "root causes" of crime more easily ignored or viewed as someone else's responsibility.(13) To these proponents, the drug court model signals an important shift in philosophy from punishment for drug-involved offenders to helping offenders involved with drugs.(14) To skeptics, and there still are some, the emergence of drug courts may be seen as a nostalgic yearning for the idealism of an earlier decade (perhaps the 1960s) that never really existed. …
Abstract: This study examines the environmental and economic damages caused by British Petroleum's CBP") Deepwater Horizon oil spill in the spring and summer of 2010. (1) The process of oil exploration and production is extremely challenging, offering significant rewards that are offset by equally significant risks. The world's demand for energy is constantly growing, thereby leading to extraordinary efforts and gigantic investments by energy companies to find new supplies of oil. The $365 million Deepwater Horizon was an offshore drilling unit designed to operate in waters as deep as 8000 feet, and to drill down 30,000 feet. (2) The Deepwater Horizon was drilling an exploratory well about forty-one miles off the coast of Louisiana, when on April 20, 2010, an explosion killed eleven workers and began the release of massive amounts of oil into the Gulf. (3) The well was eventually capped on July 15. (4) Total damages to BP, the environment, and the U.S. Gulf Coast economy are estimated to be $36.9 billion. (5) The damages are attributed to three major factors: (1) human error and equipment failure at BP's Deepwater Horizon offshore drilling unit; (2) failure of the U.S. government to assign, and in some cases to permit, resources to assist with the containment of the oil spill; and (3) misinformation disseminated by the news media regarding the amount and location of oil pollution in the water and on the beaches of the Gulf of Mexico. ANALYSIS OF ENVIRONMENTAL AND ECONOMIC DAMAGES FROM BP's DEEPWATER HORIZON OIL SPILL A. Introduction In the spring and summer of 2010, the BP Deepwater Horizon oil spill dominated the world news. The event was hailed as an environmental and economic disaster. World energy needs are constantly growing, resulting in extraordinary efforts and gigantic investments by energy companies to find new supplies of oil. Oil exploration and production is well known for its tremendous challenges, working in harsh environments, and using the latest and most complex technologies. Successful operations can lead to significant rewards, but these are offset by equally significant risks. The purpose of this paper is to examine the environmental and economic damages caused by BP's Deepwater Horizon oil spill in the spring and summer of 2010. The Deepwater Horizon was an offshore drilling rig, licensed to BP by Transocean Ltd. (6) The Deepwater Horizon was a fifth-generation dynamic positioned semi-submersible oil rig. (7) The Deepwater Horizon cost $365 million to build, and was designed to operate in waters as deep as 8000 feet, and to drill down 30,000 feet. (8) The Deepwater Horizon was drilling an exploratory well about forty-one miles off the coast of Louisiana, when on April 20, 2010, an explosion and fire killed eleven workers and began the release of massive amounts of oil into the Gulf of Mexico. (9) The oil spill was ultimately contained when the well was capped on July 15, 2010. (10) Damages to BP, the environment, and the U.S. Gulf Coast economy are estimated to be $36.9 billion, as will be described in this paper. (11) The damages are ascribed to three major factors: (1) human error and equipment failure at BP's Deepwater Horizon offshore drilling unit; (2) failure of the U.S. government to assign, and in some cases to permit, resources to assist with the containment of the oil spill; and (3) misinformation disseminated by the news media regarding the amount and location of oil pollution in the water and on the beaches of the Gulf of Mexico. B. Background and Past Research People's concern for the environment can be traced back to ancient times. (12) Directions for proper care of the natural environment are found in ancient literature, such as the Bible and Qur'an. The Prophet Moses, known mostly for providing the Ten Commandments, also gave the ancient Israelites guidance regarding land management and care of animals. (13) The Prophet Mohammed offered instructions concerning water conservation in the Holy Qur'an. …
Abstract: The power of courts to thwart the will of the popularly elected branches of government and to stand in direct contradistinction to the dominant political alliance has fascinated scholars of American politics since the nation's inception Although courts have been idealized as barriers to majority tyranny because of their seeming willingness to confront legislative majorities through the power of judicial review, serious questions have been raised about the actual nature of courts' countermajoritarian function and, in particular, the conditions under which courts are willing to challenge legislative majorities When are courts likely to take on legislatures in the game of separation of powers/checks and balances? Or, stated more broadly, to what extent are courts autonomous institutions whose functions are impervious to conditions in the external political environment? After all, the countermajoritarian function and the autonomy of courts are hampered if courts, or the individual judges casting votes in the cases, fear legislative sanctions and defer to legislative preferences to avoid them This Article seeks to explore fundamental questions about the nature of inter-institutional conflict by examining all cases decided since Roe v Wade(1) by state supreme courts in which direct challenges to state statutes regulating abortion services were raised As institutions with a diversity guaranteed by jurisdiction, state supreme courts are subject to virtually every force likely to affect judicial choice(2) Consequently, they offer an ideal laboratory for testing relevant contextual hypotheses Similarly, the abortion issue provides a manageable, yet highly charged, specimen with which we can conduct our analysis(3) In response to concerns about the basis of inter-institutional conflict with the courts, two different conceptualizations of courts as institutions have emerged in the scholarly literature based on studies of the United States Supreme Court(4) First, scholars working within the framework of attitudinal theory have posited that the Supreme Court is a highly autonomous institution whose decisions essentially reflect the aggregation of preferences of its members(5) Because various institutional arrangements (eg, lifetime tenure) insulate the Court from sanctions, the Supreme Court lacks incentives to respond to forces in the external environment, including Congress, except on the rarest of occasions(6) Given the highly insular nature of the Court, individual justices are free to cast votes in accordance with their preferences on issues of public policy(7) Therefore, the Supreme Court only overturns statutes under conditions where the preferences of the Court majority and Congress merely conflict, without reference to exogenous factors(8) Alternatively, scholars working within the rational choice framework have offered another conceptualization of the relationship between the Supreme Court and Congress that poses a serious challenge to the widely accepted principle of judicial autonomy and purely attitudinal voting(9) Positive theorists have argued that even when preferences conflict, the Supreme Court frequently will acquiesce to the legislative majority when the Court anticipates some possible reprisal or sanction for its actions(10) One particularly important reprisal is subsequent statutory revision Stated differently, positive theorists model the preferences of Congress as a significant constraint on judicial choice in the nation's highest court, and the power of Congress as a limit on the autonomy of the Supreme Court(11) While these two alternative perspectives on the status of the United States Supreme Court will continue to be debated as new evidence is brought to bear on the issue, some very recent research raises serious doubts about the utility of models derived from positive theory for explaining the Supreme Court's interaction with Congress(12) In a highly thought-provoking paper, Jeffrey Segal presents a convincing case that assumptions about the insularity of courts are theoretically sound and empirically correct for the Supreme Court, even in matters of statutory interpretation …
Abstract: I. INTRODUCTION In the early morning hours of August 21, 2013, rockets carrying chemical weapons struck outside the Syrian capital of Damascus, killing an estimated 1429 people, including 426 children. (1) The U.S. government concluded, with "high confidence," that the Syrian government, which was known to have stockpiles of various chemical weapons, perpetrated the attack. (2) While the brutal nature of this attack may be surprising to most, it is just one example of many in which the Syrian government utilized force against its own population. (3) The Syrian Civil War has been described as "the biggest humanitarian catastrophe of this century." (4) It began in March of 2011 "in the wake of the Arab Spring [and] has evolved into a brutal and bloody civil war between the Assad Regime and opposition forces." (5) While it was the August chemical weapon attack that nearly entangled the United States in an armed conflict with Assad's forces, (6) there are numerous concerns associated with this conflict that long precede the use of chemical weapons. (7) One such concern involves the growing number of refugees that continue to flee from Syria. (8) Between March 2011 and September 2013, two million refugees fled to neighboring countries, North Africa, and Europe, with 1.8 million leaving the war torn state between September 2012 and September 2013 alone. (9) At the time of this writing, there are 2.8 million refugees. (10) Of that population, it is estimated that thousands have no access to assistance from the international community because they are living outside of refugee camps. (11) Perhaps most startling is that an estimated fifty-two percent of these refugees are children under the age of eighteen. (12) By March of 2014, the number of Syrian child refugees surpassed 1.2 million. (13) Not only are many of these children exposed to traumatic violence and family upheaval during the course of their escape, but many have missed upwards of two years of school and are unable to reenroll in their host countries. (14) This note will consider the international human right to education for child refugees in the context of the Syrian Refugee Crisis. There are numerous provisions in international law aimed at protecting children's right to education. Unfortunately, the flaws in these provisions are notable as political unrest may, at any time, deny an entire generation of children an education. Part II will discuss the genesis of the Syrian Refugee Crisis, briefly examining the origins of the civil war. Part III will discuss the refugee crisis that has emerged from that war in the context of the most effected host countries. In addition, particular attention will be directed at the actions taken by each host country to expand access to education for Syrian child refugees. Part IV will discuss the role of international law in protecting the right to education and how the right to education's status as a "second-generation human right" severely limits its applicability in the context of the Syrian crisis. (15) Part V will address the current problems facing the international community with respect to obtaining sufficient humanitarian aid for those adversely affected by the Syrian Crisis. It will also consider why international law is unable to compel wealthy nations to contribute humanitarian aid, by examining the limitations of the novel concept of Responsibility to Protect. Through this discussion it will become evident that international law is currently unequipped to protect second-generation human rights in the context of extraordinary crises akin to the Syrian Refugee Crisis. In order for future displaced populations to fully realize their secondgeneration human rights, international law must respond to the deficiencies highlighted in this note. II, THE SYRIAN CIVIL WAR The Syrian Civil War began in March 2011 as a dispute between the government of Bashar al-Assad and Syrian citizens dissenting from his regime. …