Albany law review最新文献

{"title":"The Single-Subject Rule: A State Constitutional Dilemma","authors":"Richard Briffault","doi":"10.2139/ssrn.3499721","DOIUrl":"https://doi.org/10.2139/ssrn.3499721","url":null,"abstract":"Critics of the proliferation of omnibus legislation in Congress have suggested that state constitutions offer a potential solution. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the early and mid-nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, abortion, tort reform, immigration, local minimum wage laws, sex offenders, enhanced criminal penalties, and school vouchers. \u0000 \u0000Yet, despite having long been a part of the constitutional law of most states, the single-subject rule is deeply problematic. Courts and commentators have been unable to come up with a clear and consistent definition of what constitutes a “single subject.” Instead, persistent themes in the single-subject jurisprudence has been the inevitable “indeterminacy” of “subject” and disagreement over how deferential courts should be to legislatures. \u0000 \u0000Due to the slipperiness of “subject,” many analyses have focused on what are regularly said to be the primary purposes of the rule—the prevention of legislative logrolling and riders, and the promotion of a more orderly and informed legislative process—and have called for reframing the enforcement of the rule around the advancement of these goals. But determining whether a law is the product of logrolling, or whether a provision should be treated as a rider, will often be difficult. And it is far from clear that logrolls and riders are as pernicious as proponents of more vigorous enforcement of the single-subject rule assume. The more aggressive use of the single-subject rule urged by advocates as a means of thwarting “legislative chicanery” and “backroom politics” could also undo the cooperation and compromise necessary to get difficult but important legislation enacted. \u0000 \u0000This article examines the history and purposes behind the single-subject rule; recent state supreme court cases interpreting it; and the arguments for reframing the rule more tightly around the prevention of logrolling or riders. It finds that although the justifications for the rule – improved legislative deliberation, transparency, and public accountability – are admirable goals the state constitutional rule has not been and is unlikely to be an effective means of achieving those ends.","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68599524","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Buy Insurance or Else?: Resurrecting the Individual Mandate at the State Level.","authors":"Brendan Williams","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The Affordable Care Act (ACA) has been subject to considerable volatility, with perhaps the greatest blow being the rescission, as part of the 2017 Tax Cuts and Jobs Act, of the penalty for its individual mandate to have health insurance coverage. As a New Republic article noted, \"we will now find out whether or not an individual mandate really is essential to health reform. And that will settle an old intra-Democratic fight that has been dormant for a decade.\" The author, Joel Dodge, noted that in the face of Republican efforts to repeal the ACA, \"Obamacare defenders (myself included) rebutted these attacks by doubling down on the argument that the law’s entire structure would collapse without a mandate.\" Yet, following the mandate’s repeal, Dodge admitted: The mandate was also never much of a mandate to begin with. The Obama administration gave numerous exemptions from the mandate for hardship and other life circumstances. And at just $695 or 2.5 percent of household income, the mandate's penalty for going without insurance costs far less than the cost of actually buying insurance. In contrast, in Massachusetts, the state that pioneered health care reform, the penalty for going uninsured, when one is deemed to be able to afford coverage, is \"50 per cent of the minimum insurance premium for creditable coverage available through the commonwealth health insurance connector for which the individual would have qualified during the previous year.\" As one national policy magazine noted, after the individual mandate was repealed, many Democratic legislators expressed support for enacting it in their states, but those efforts mostly faltered: \"Health policy experts attribute the waning enthusiasm to the unpopularity of the individual mandate.\" This article traces the origin of the individual mandate, chronicles the efforts of some states to enact their own mandates, and concludes by questioning whether the mandate is either necessary or politic.</p>","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"82 2","pages":"533-54"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"37157141","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Buy Insurance or Else?: Resurrecting the Individual Mandate at the State Level.","authors":"B. Williams","doi":"10.2139/ssrn.3360484","DOIUrl":"https://doi.org/10.2139/ssrn.3360484","url":null,"abstract":"The Affordable Care Act (ACA) has been subject to considerable volatility, with perhaps the greatest blow being the rescission, as part of the 2017 Tax Cuts and Jobs Act, of the penalty for its individual mandate to have health insurance coverage. As a New Republic article noted, \"we will now find out whether or not an individual mandate really is essential to health reform. And that will settle an old intra-Democratic fight that has been dormant for a decade.\" The author, Joel Dodge, noted that in the face of Republican efforts to repeal the ACA, \"Obamacare defenders (myself included) rebutted these attacks by doubling down on the argument that the law’s entire structure would collapse without a mandate.\" Yet, following the mandate’s repeal, Dodge admitted: The mandate was also never much of a mandate to begin with. The Obama administration gave numerous exemptions from the mandate for hardship and other life circumstances. And at just $695 or 2.5 percent of household income, the mandate's penalty for going without insurance costs far less than the cost of actually buying insurance. In contrast, in Massachusetts, the state that pioneered health care reform, the penalty for going uninsured, when one is deemed to be able to afford coverage, is \"50 per cent of the minimum insurance premium for creditable coverage available through the commonwealth health insurance connector for which the individual would have qualified during the previous year.\" As one national policy magazine noted, after the individual mandate was repealed, many Democratic legislators expressed support for enacting it in their states, but those efforts mostly faltered: \"Health policy experts attribute the waning enthusiasm to the unpopularity of the individual mandate.\" This article traces the origin of the individual mandate, chronicles the efforts of some states to enact their own mandates, and concludes by questioning whether the mandate is either necessary or politic.","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"82 2 1","pages":"533-54"},"PeriodicalIF":0.0,"publicationDate":"2018-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47568840","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Don't Be Distracted by the Peacock Trying to Board an Airplane: Why Emotional Support Animals Are Service Animals and Should Be Regulated in the Same Manner.","authors":"Amanda M. Foster","doi":"10.2139/SSRN.3225891","DOIUrl":"https://doi.org/10.2139/SSRN.3225891","url":null,"abstract":"Although fifty percent of all Americans are diagnosed with a mental illness or disorder at some point in their lifetime, including one in ten women, and mental illnesses are the third most common cause of hospitalization for adults under forty-four, the ADA’s narrow approach to defining service animals only protects a certain group of people with disabilities using a certain type of animal — dogs who perform tasks associated with the person’s disability. This narrow approach does not consider the thousands of people who use emotional support animals to alleviate or mitigate the symptoms associated with their mental health issues. To provide parity, it is necessary to include emotional support animals within that definition. Despite the prevalence of mental illness, there is a societal backlash against emotional support animals who provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not meet the ADA definition of service animal due to their lack of specialized training. The FHA and ACAA have provided protection and accommodations for people using emotional support animals, but that protection is in jeopardy. In response to uncertainty over the definition of emotional support animals, on April 24, 2018, Senator Burr (R-NC) introduced a bill to amend title 49 of the United States Code, which would make changes to the ACAA such as only allowing service animals as defined by the ADA to be uncaged onboard aircraft's, requiring service animal behavior training for air carrier passengers, and creating a criminal penalty for fraudulently claiming that an animal is a service animal used for disability needs. If Senator Burr’s bill is passed and the ACAA is restrained from allowing emotional support animals to be service animals under the ACAA, then people with mental health issues will once again be stigmatized and treated as second class citizens. Emotional support animals are also on trial in the regulatory realm. The DOT is currently seeking comments on ways to improve the ACAA regulation to ensure nondiscriminatory access for individuals with disabilities to use their service animals onboard airlines while attempting to deter “fraudulent use of other animals not qualified as service animals” and prevent use of “animals that are not trained to behave properly in the public.” Clear regulation is needed to ensure that all people with disabilities can use a service animal, including emotional support animals, if that animal will assist him or her with alleviating or mitigating the symptoms associated with his or her disability. Do not let the peacock trying to board the airplane distract from the real issue at hand. Mental health matters and people who experience mental health issues and need emotional support animals in public places, including on mass transit, to participate in society, should not be denied this accommodation based on fear that some people may fraudulently claim that their p","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"82 1 1","pages":"237-66"},"PeriodicalIF":0.0,"publicationDate":"2018-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43001988","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Physician-Assisted Suicide and the New York State Constitution.","authors":"Edward T Mechmann,&nbsp;Alexis N Carra","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>On September 7, 2017, the New York State Court of Appeals ruled on the most significant state constitutional case that it had been presented in several years. In Myers v. Schneiderman, the Court unanimously rejected a request to legalize physician-assisted suicide (\"PAS\"). This article will examine the background and the legal grounds of that historic ruling, as well as some reflections on our involvement in the case.</p>","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"81 4","pages":"1337-57"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"37029487","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An Unfortunate Misstep: the New York Court of Appeals' Rejection Of Aid-In-Dying In Myers V. Schneiderman.","authors":"Edwin G Schallert,&nbsp;Kathryn L Tucker","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"81 4","pages":"1359-80"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"37029957","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The State of Physical Injury and Serious Physical Injury in New York Criminal Law.","authors":"Colleen D Duffy,&nbsp;Ivy Ozer","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The terms \"physical injury\" and \"serious physical injury\" are key elements of proof in assault cases in New York; the applicability of each element depends on the degree, or severity, of the crime. Jurisprudence in this area continues to evolve, as it is often very fact-specific, and the interpretation of what constitutes a physical injury or serious physical injury varies by the court considering individual cases. This article reviews recent New York cases in this area, and highlights, where applicable, the differences in outcome among the judicial departments in their treatment of physical injury and serious physical injury as elements of assault in New York criminal law.</p>","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"81 4","pages":"1077-101"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"37189775","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Immigrant Paradox: Protecting Immigrants Through Better Mental Health Care.","authors":"Andrew F Moore","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"81 2","pages":"77-119"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36298776","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Preserving Life by Ranking Rights.","authors":"John William Draper","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"82 1","pages":"157-236"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"37029959","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Neuroscience and Mental Competency: Current Uses and Future Potential.","authors":"John B Meixner","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"81 3","pages":"995-1026"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36374560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}