Albany law review最新文献

{"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":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"82 1","pages":"237-66"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"37029960","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":"Picking and Choosing: Inconsistent Use of Neuroscientific Legal Evidence.","authors":"Joseph J Avery","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"81 3","pages":"941-74"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36374558","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":"Shaken Baby Syndrome: as a Controversy in Wrongful Conviction Cases.","authors":"Eza Bella Zakirova","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"81 3","pages":"1027-46"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36374561","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 Best Insurance against Miscarriages of Justice Caused by Junk Science: An Admissibility Test That Is Scientifically and Legally Sound","authors":"E. Imwinkelried","doi":"10.2139/SSRN.3035644","DOIUrl":"https://doi.org/10.2139/SSRN.3035644","url":null,"abstract":"This article is a contribution to a forthcoming symposium on wrongful convictions. In some cases, a wrongful conviction is virtually unavoidable. The empirical data demonstrating the invalidity of the expert's technique or theory may become available only after the conviction. However, in other cases, the courts can minimize the risk of a wrongful conviction by applying a rigorous admissibility test. \u0000Part I of this article considers -- and then rejects -- two possible admissibility tests. One is an extreme version of the relevancy test allowing the admission of testimony based on a technique or theory so long as one qualified expert vouches for the technique or theory. The second is the traditional FRYE general acceptance test. Both tests provide inadequate assurance against wrongful conviction because they demand nothing more than ipse dixit -- either that of an individual expert or the collective ipse dixit of a substantial majority of the specialists in a field. Both approaches represent the antithesis of scientific methodology. \u0000Part II of the article proposes a refined version of the DAUBERT reliability test. After stating the proposed test, the article dissects the test and explains each test component. Part II argues that the proposed test reflects sound scientific methodology and represents a synthesis of the governing statutes and cases. \u0000Finally, Part III explores both the utility of the proposed test and its limitations. As Part III establishes, the satisfaction of the proposed test guarantees neither the admissibility of the expert's testimony nor its legal sufficiency to support a conviction. Most importantly, Part III underscores that the use of a sound admissibility test does not preclude the possibility that later scientific research will discredit the technique or theory relied on at the time of the earlier trial. Vigilance against wrongful convictions must be a both/and proposition: We must not only apply an exacting test to assess the technique or theory at the time of the initial proffer of the evidence, but we also have to revise the postconviction relief statutes to correct miscarriages of justices that are exposed only by later scientific investigation.","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"81 1","pages":"851"},"PeriodicalIF":0.0,"publicationDate":"2017-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49189778","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":"Justice or Injustice: a History and Critique of the New York State Justice Center for the Protection of People with Special Needs.","authors":"Rose Mary Bailly,&nbsp;Dena M DeFazio","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The creation of the New York State Justice Center for the Protection of People with Special Needs (\"Justice Center\") was announced with great fanfare in 2013. Its goal is laudable: strengthening and standardizing \"the safety net for vulnerable persons, adults and children alike, who are receiving care from New York's human service agencies and programs.\" Its jurisdiction is broad: covering residential and non-residential programs and provider agencies that come within the purview of six state oversight agencies, namely, the Office of Mental Health, the Office for People with Developmental Disabilities, the Office of Alcohol and Substance Abuse Services, the Office of Children and Family Services, the Department of Health, and the State Education Department. Its powers are comprehensive: investigating allegations of abuse, neglect, and significant incidents, and disciplining individuals and agencies pursuant to administrative authority. In addition, it can prosecute crimes of neglect and abuse pursuant to criminal prosecutorial authority. Given that over 270,000 vulnerable children and adults live in residential facilities overseen by the state and that numerous other individuals receive services from \"day programs operated, licensed[,] or certified by the state[,]\" the creation of the Justice Center is consistent with New York's history of oversight of vulnerable individuals. The state has overseen various state and municipal programs and private organizations that have addressed the needs of vulnerable individuals practically since New York's first poorhouse opened in 1736. The development of that oversight has been a series of responses to perceived deficiencies of an existing system, and the creation of the Justice Center is, much in the same way, a response to a 2011 study commissioned by the Governor to examine the treatment and care of vulnerable adults. The Justice Center’s jurisdiction reflects a departure, however, from traditional oversight. State administrative and regulatory review has been carried out by specialized state agencies established during the late nineteenth and twentieth centuries to address specific categories of individuals receiving care and treatment according to their needs. Residential and day treatment programs, as well as their custodians and employees, have been disciplined for abuse and neglect in accordance with state regulations created by these agencies. Criminal prosecutions have also been referred to county district attorneys. The Justice Center unites all specialized agencies, all vulnerable individuals with diverse needs, and all custodians and employees trained to meet those needs under one additional layer of uniform rules and regulations, with potential administrative discipline, civil liability, and criminal prosecution also under the same umbrella. This article explores the history of state oversight in New York and the departure represented by the Justice Center. This article first traces the ","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"80 3","pages":"1181-225"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"37157140","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":"Gender, Victimization, and Evolving State Standards: a Study of New York and Michigan Sexual Assault Legislation.","authors":"Ann Johnson","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"79 4","pages":"1355-70"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36298778","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":"Ending Disparities and Achieving Justice for Individuals with Mental Disabilities.","authors":"Sheila E Shea,&nbsp;Robert Goldman","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The intersection of crime and mental disabilities is a topic of intense public scrutiny and concern. It is well known that the widespread closure of psychiatric hospitals led to an increase in the arrest and incarceration of individuals with mental illness. Nationally, as the number of state hospital beds that remain open \"has fallen to its lowest level on record, … mentally ill individuals inside and outside the criminal justice system\" compete for scarce resources in \"a bed shell game with life-and-death implications.\" Against this backdrop, attorneys who practice in New York encounter statutory schemes governing the adjudication and retention of incapacitated defendants and those determined to not be responsible because of \"mental disease or defect\" that are confounding even to the most experienced counsel. Acquiring proficiency in this discrete area of law must be coupled with awareness that defendants with mental disabilities invariably confront widespread societal prejudices, myths, and stereotypes regarding their circumstances, such as that those who invoke mental status defenses are malingering or inherently dangerous. \"The [American] public's outrage [in 1981] over a jurisprudential system that could allow a defendant who shot an American President on national television to plead 'not guilty' became a 'river of fury' after the jury’s verdict was announced.\" The conditional release of John Hinckley from St. Elizabeth's Hospital on September 10, 2016, thirty-five years after he shot former President Ronald Regan and three others, is a watershed moment that has caused renewed public criticism of the insanity defense. Criminal defendants with mental disabilities have been \"deprived of treatment, discriminated against, [and] mistreated.\" They have also been subjected to over-punishment because of the harms they endure while incarcerated. The common view that dangerous propensities are associated with mental illness and that future risk can be predicted is not evidence-based. This article will review the nature of mental disabilities and their prevalence in the criminal justice system, and will introduce fundamental concepts regarding the defense of individuals with mental disabilities. New York State statutes governing the retention, care, and treatment of incapacitated defendants and those found not guilty by reason of insanity will be explored in depth along with proposals for chapter amendments to this state's Criminal Procedure Law. Theory and practice are examined together toward the goal of ending disparities in outcomes for individuals with mental disabilities in the criminal justice system. This article’s conclusion is that miscarriages of justice for those with mental disabilities can be avoided by reform of statutory schemes, education of the bench and bar regarding the nature and consequences of mental disabilities, and by embracing concepts of therapeutic justice not yet integrated into our criminal justice system.</p>","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"80 3","pages":"1037-101"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"37156224","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":"Nursing Home Abuse of Agents: Creditor Misuse of New York’s Revised Durable Power of Attorney.","authors":"William P Davies","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"79 4","pages":"1433-64"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36298779","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":"Rehabilitating Frankenstein's Monster: Repairing the Public Policy of the Roth IRA","authors":"A. M. Kofsky","doi":"10.2139/SSRN.2849594","DOIUrl":"https://doi.org/10.2139/SSRN.2849594","url":null,"abstract":"The accompanying Article is not a financial planning guide on whether to contribute or convert funds into a Roth Individual Retirement Account (Roth IRA). Legions of advice already exists to help analyze that choice. Instead, the Article addresses the Roth IRA from a public policy perspective.The Roth IRA is a seemingly innocuous after-tax personal retirement savings arrangement. The law, however, has received fierce policy criticism since its enactment less than two decades ago. For example, the title of this Article stems from one such criticism. A 2011 Op-Ed admonished that the Roth IRA is a dangerous “fiscal Frankenstein” destined to “wreak havoc” on the U.S. Treasury. Notwithstanding, Presidents Clinton, Bush, and Obama have all signed off on legislation enacting or expanding the Roth IRA. Further, the public has already poured $660 billion into Roth IRAs and the inflows are growing fast.Consequently, this Article takes a fresh look at the Roth IRA. The Article does find serious flaws in the existing law. In particular, a 2014 GAO report estimated 300 people had IRAs worth at least $25 million. Similarly, a 2012 Forbes article noted that Max Levchin, a 36 years old high-tech entrepreneur, had built a Roth IRA worth at least $95 million. Skewed wealth accumulations, along with the statutory feature that allows beneficiaries to stretch distributions over their lifetimes, present serious income inequality issues. The Article therefore concludes by offering recommendations to turn the rampaging beast into a benevolent benefactor.","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"80 1","pages":"161"},"PeriodicalIF":0.0,"publicationDate":"2016-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68387322","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":"Elephants in the Station House: Serial Crimes, Wrongful Convictions, and Expanding Wrongful Conviction Analysis to Include Police Investigation","authors":"M. Zalman, M. Larson","doi":"10.2139/SSRN.2716155","DOIUrl":"https://doi.org/10.2139/SSRN.2716155","url":null,"abstract":"In this article we advocate that the study of miscarriages of justice be expanded to view the entirety of police crime investigation as a source of wrongful convictions. We set this proposal in a framework of how the inductive innocence paradigm was developed and analyze how the term “causation” is used in legal, scientific and case analysis. We then explore a subject not yet addressed by wrongful conviction scholarship but that may confront an investigator: whether an unsolved crime is the work of a serial criminal and whether a suspect is the serial criminal. We examine a convenience sample of forty-four exonerees convicted of crimes committed by thirty serial criminals. The analysis is aimed at opening up a discussion of the kind of complexity that investigators face in hard-to-solve cases.","PeriodicalId":79773,"journal":{"name":"Albany law review","volume":"79 1","pages":"941"},"PeriodicalIF":0.0,"publicationDate":"2016-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68269634","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}