Monthly Archives: March 2011

Burdened by Life: A Brief Comment on Wrongful Birth and Wrongful Life

Written by Brady Begeal, Topics Chair, Albany Government Law Review Member

Introduction

In Roe v. Wade, the United States Supreme Court held that “the right to privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[1] Over the past several decades, prenatal torts like wrongful birth and wrongful life have developed from the judicially recognized right to have an abortion.  Nearly all of the states recognize wrongful birth claims, and four accept wrongful life claims.[2] What do these two actions entail?  Although there are many permutations of how either action can arise, and sometimes they carry a different label, a typical fact pattern for both actions goes as follows.

A woman becomes pregnant and begins the typical process for pre-natal care.  She goes to the doctor for check-ups and the doctor monitors the pregnancy and guides the expecting mother through each stage.  Then, during the pregnancy, a risk that the unborn child will be born with birth defects becomes apparent to the doctor.  At some point, the doctor acts negligently in some way, perhaps by a failed diagnosis, failing to proscribe the proper course for the woman to take, proscribing an improper method, or simply failing to warn the mother of the risks of which the doctor is aware.  Finally, the woman gives birth, but the baby is born with some kind of severe birth defect or impairment.  This is where the two actions diverge.

An action for wrongful birth is brought by the mother.  Essentially, she argues that but for the negligence of the doctor, she would have decided to have abortion and terminated the pregnancy.[3] The mother argues that she has lost a right to which she is entitled to; the right to make an informed decision as to whether or not to have a child with birth defects.  Now, since the child has been born, and born with birth defects, the parent or parents demand damages associated with having to raise a disabled child.

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Filed under Constitutional Law, Health Law, New York Court of Appeals

Are You My Mothers: Parental Rights for Same-Sex Partners Under New York Law

Written by Emily Ekland, Albany Government Law Review Member

Introduction

New York law as it applies to same-sex partner rights is ambiguous.  We know that same-sex partners do not have the same rights as married individuals, however, it has yet to be decided whether New York would be willing to recognize civil unions and same-sex marriages from other states in divorce actions.[1] In 2010, the New York Court of Appeals cleared up some questions involving parental rights and responsibilities of same-sex partners who bring a child into their relationship.  Today, a same-sex partner can be chargeable with child support, but does not have parental custody or visitation rights under New York law.  These two holdings may appear contradictory, but the requisite law of New York State validates them.  This is a discussion of the case law presented to the Court of Appeals in 2010 regarding same-sex partner rights.

H.M. v. E.T.

According to the record on appeal, H.M and E.T. were romantically involved for six years, from 1989 to 1995, and were living together for the majority of those years.[2] While both women had discussed having a child early in the relationship, they did not conceive until 1993.[3] Prior to H.M.’s pregnancy, the two discussed child rearing practices, methods of contraception, and whether to raise the child with E.T.’s other children.[4] In 1994, H.M. gave birth and both women accepted responsibility for the care of the child.[5] Shortly thereafter, the relationship ended and the two parties separated.[6] E.T. continued to sporadically provide monetary support for the child, even after a failed attempt to reconcile with H.M.[7]

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Filed under Constitutional Law, Human Rights, Matrimonial Law, New York Court of Appeals

The Reality of the Socratic Method in Law School Classrooms: A Call to Preserve our Longstanding Tradition

Written by Oriana Carravetta, Albany Government Law Review Member

 

Fictional characters like Professor Kingsfield of The Paper Chase have contributed to an image of the quintessential law school professor who puts a student in the “hot seat” and delves into what seems like an intimidating and almost torturous line of inquiry.[1] This pedagogical technique is commonly known as the Socratic method: one of the defining characteristics of the American legal education system, almost universally used during the first year of law school.[2] At the crux of this method is a focus on having the students extract and explore legal theory for themselves.[3] It is often viewed as a coaching method that, when executed properly, assists to develop a student’s ability to think critically and present ideas in an effective manner.[4]

Without a doubt, this pedagogical technique puts an overwhelming amount of pressure on students to prepare well for class, think fast, and have no choice but to speak publicly.  According to the authors of Educating Lawyers: Preparation for the Profession of Law, “the case-dialogue method is a potent form of learning-by-doing.  As such, it necessarily shapes the minds and dispositions of those who apprentice through it.”[5] The unfortunate reality though, is that the Socratic method has been losing its force over the last thirty years, as it has now been viewed more as a symbol of traditional legal education rather than a classroom technique.[6] American legal institutions are no longer placing any sense of value on understanding its own history.  That is to say, embracing history in its pedagogical practice is no longer viewed as an important tool in preserving historical continuity.[7]

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Filed under Education Law

The Triborough Amendment: Necessary Protection for Public Employees or a Barrier to Reform?

Written by Hunter Raines, Albany Government Law Review Member

Introduction

The Public Employees’ Fair Employment Act, popularly known as the Taylor Law, has long governed the employment relationship between the State of New York and its’ employees.  While the law has proved to be successful in improving the formerly turbulent relationship between the two parties, an important aspect of the law should be revised as a matter of public policy.  New York State currently faces a nearly $10 billion dollar budget deficit as newly-elected Governor Andrew Cuomo prepares to present his budget proposal to law makers, which will require drastic action in order to address.[1] One way which has been proposed to accomplish this task is through repealing, “suspending” or “freez[ing]” the Triborough Amendment to the Taylor Law, referred to by some as one of the “dirty little secrets in collective bargaining.”[2]

The Triborough Amendment to the Taylor Law

The Taylor Law was the product of a study commissioned by Governor Nelson Rockefeller in 1966 to address labor disruptions in the public sector.[3] One of the primary purposes of the Taylor Law was to prohibit strikes by allowing public employees to unionize.[4] The Taylor Law gave the employee a voice in determining such terms of employment by way of a union instead of one-on-one, preventing an interaction or interrelationship between the public employer and the public employee with respect to collective bargaining of terms and conditions of employment (hereinafter “TCE”).[5] To assist in resolving disputes, the Taylor Law also created the Public Employees Relations Board (hereinafter “PERB”).[6]

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Filed under Employment Law, Government Reform