Sunday, October 23, 2016

Animal Law: Evolution and the Need for International Protection

By Myleah Misenhimer
Myleah Misenhimer is a 2016 cum laude graduate of Albany Law School. She earned her undergraduate degree in English, summa cum laude, from the State University of New York at Albany. She is also a graduate of the American Musical and Dramatic Academy in Manhattan.
During her time at Albany Law School, Myleah was active in the moot court program, competing in both inter and intra school trial and appellate competitions. She was also a member of the Animal Law Pro Bono Project, and continues to be a member of the Animal Legal Defense Fund.
Myleah is currently a first year associate at Rose Waldorf PLLC.
She prepared this paper for Professor Bonventre's International law of War and Crime seminar.


In 1948, following the atrocities committed against the Jews by Nazi Germany, the Genocide Convention was passed, elevating and isolating genocide as an aggravated crime against humanity. But what of the right to existence of entire non-human groups?  Have the “dictates of public conscience” and the principles of our nations expanded to the point where protection for non-human beings would reflect our communal notions of humanity and morality?

In a literal sense, a crime against humanity is a crime committed externally against humankind. Humankind is humanity, but also has humanity, and thus a crime against humanity can be viewed as a crime that goes against the collective conscience, whether innate or learned. In a time where domestic animals are regarded as family members or referred to as man’s best friend, where we, as people, can set up pet trusts to ensure a safe and secure future for our animals, where most nations in the world have independently adopted laws to criminalize the abuse of such animals, is it time for another convention to bring about internationally recognized animal laws?

The bond between humans and animals was formed in antiquity, primarily out of economic need.   Humans exploited animals for physical purposes, such as plowing fields, but animals also served metaphysical purposes. In her article, Attitudes towards Animals in Greco-Roman Antiquity, Liliane Bodson writes about philosophical views of animals. For example, in the 7th Century B.C., Hesiod made the ox his first servant. Though he asserted Zeus granted justice only to humans, Heisod would treat the animal servicing him with a basic level of care. Pythagoras believed after death that human souls transmigrated into other living beings, and consequently taught his followers to never harm an animal.

Plato believed in the dual soul of man; the divine half was shared with the Gods, whereas the spirited half was shared with animals. Domesticated animals in antiquity were attributed a certain level of intelligence, at least enough to offer consent, as evidenced by Plato’s classification of such animals as “willing partners in human culture.” The notion of consenting animals even extended into the area of religious animal sacrifice, where the sacrificial animal was said to have nodded to humans in assent before being killed.
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To read the entire paper, open HERE.

Friday, October 14, 2016

Supervised Release and Illegal Immigration: An Empty Gesture?

By Kellan B. Potts
Kellan Potts was born and raised in Opossum Creek, Tennessee. He received his bachelor’s degree from Binghamton University, graduated from Albany Law School this past spring, and is a fervent proponent of criminal defense.
While in law school, Kellan interned with the Ulster County District Attorney’s Office, the United States Department of Justice in Washington D.C., the Federal Defenders of Eastern Tennessee, and the Schenectady Public Defenders Office.
He won the ABA National Client Counseling Competition and went on to represent the United States of America in the International Client Counseling Competition, where he and his partner advanced to the semi-finals. He also won the ABA Regional Negotiation Competition, the ABA Regional Client Counseling Competition, the Donna Jo Morse Client Counseling Competition, and placed 6th in the nation at the ABA National Negotiation Competition.
Kellan currently works at O’Connell & Aronowitz doing criminal defense. In his free time he enjoys playing with his three-year old son, spending time outdoors, and watching far too many movies.
He prepared this research paper for the International Law of War & Crime seminar.


As stated in the name, "illegal immigration," being an illegal alien in the United States is a crime. Being in the United States illegally is only a civil infraction, punishable by deportation.  However coming back into the country, after being previously removed (without the permission of the Attorney General), is a felony under 8 United States Code (U.S.C.) §1326, or Reentry of Removed Aliens (commonly called Unlawful Reentry). This article will address the felony version of illegal immigration.

Specifically, this article will examine the practice of imposing a period of supervised release on defendants who are convicted of 8 U.S.C. §1326, even though every defendant who is convicted under this statute is deported at the end of their incarceration. Beginning with an examination of the laws concerning illegal immigration, this paper will argue that the imposition of supervised release on defendants who are deported is an empty gesture, one which the United States has no authority to enforce once the defendant is deported and out of the country.

Following this examination is an analysis of the 1989 Crime Omnibus Act, the law that abolished federal parole and set up supervised release in its place. After explaining how supervised release works, this article will conclude with why supervised release is not warranted in deportation cases.
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To read the entire paper, open HERE.

Friday, October 7, 2016

"Just War" Essays

These two essays on the concept of "Just War" were prepared as an assignment for the International Law of War & Crime seminar at Albany Law School this semester.
Just War Theory: Ambiguities and Varying Approaches
By Eric Brenner
Eric Brenner is a third-year student at Albany Law School. He graduated with honors from Siena College in 2014 with a degree in Finance.  At the law school, he is currently the Executive Managing Editor for Volume 80 of the Albany Law Review.
Eric has been a teaching assistant and research assistant for members of the Albany Law faculty, and he has also served as a judicial intern in U.S. District Court for both the Hon. Lawrence E. Kahn and the Hon. Charles J. Siragusa.
Later this year, his Note on reverse mortgages will be published by the Albany Law Review.
Read the Essay.


Jus ad Bellum
By Corey Carmello
Corey Carmello is a third-year student at Albany Law School. He graduated summa cum laude from the University at Albany in 2014 with a Bachelor of Arts in Political Science.
While in law school, Corey has interned with Judge Lawrence E. Kahn, of the Northern District of New York, the Albany County District Attorney’s Office, and the Appeals and Opinions Bureau of the New York State Attorney General’s Office. He is also a member of the Albany Law Review.
Upon graduation, Corey will be working as an associate for Milbank Tweed Hadley & McCloy.
Read the Essay.

Jus ad Bellum

By Corey Carmello
Corey Carmello is a third-year student at Albany Law School. He graduated summa cum laude from the University at Albany in 2014 with a Bachelor of Arts in Political Science.
While in law school, Corey has interned with Judge Lawrence E. Kahn, of the Northern District of New York, the Albany County District Attorney’s Office, and the Appeals and Opinions Bureau of the New York State Attorney General’s Office. He is also a member of the Albany Law Review.
Upon graduation, Corey will be working as an associate for Milbank Tweed Hadley & McCloy.
This essay was prepared as an assignment for the International Law of War & Crime seminar this semester.


            The concept of a “just war,” or jus ad bellum, has been discussed and debated on for hundreds of years.  In fact, one of the first and most influential formulators of the just war theory, Saint Augustine, lived in the fourth and fifth centuries.[1]  Augustine explained that a war is just when it is necessary for defense and the protection of the common good.[2]
            In the thirteenth century, Saint Thomas Aquinas opined that a war is just if, among other considerations, the attack is due to some fault of those attacked and the intentions are to advance good and avoid greater evil.[3]
Although early Christian thinkers were the ones that theorized the just war concept,[4] it is still extremely important and relevant in the international law community today.[5]  That community is split, however, on what makes a war just.  On one end of the spectrum, pacifists are of the belief that a war is always immoral and never justeven when attacked first.[6]  On the other end, realists contend that war is outside the realm of moral judgment and is a mere “human activity.”[7]
The vast majority of legal scholars fall somewhere in the middle, and the suggestion of Saints Augustine and Thomas Aquinas—that a war is just when it prevents some greater evil—is intertwined in many of their theories.[8]
Legal scholars and philosophical thinkers seem to focus on two things when discussing the concept of a just war: (1) nature/natural law and (2) international law.  First, scholars have opined that the just war concept cannot be fully understood without grasping human nature and the “call to justice” that is embedded in it.[9]
Augustine opined that human nature calls for us to “love our neighbor.”[10]  Because of that, Augustine and his current following believe that a war is just when it furthers this instinct of protecting and loving your neighbor.[11]  That is to say, when “the aim is to repair that which has been torn asunder by a prior violence and to protect a community for which one has responsibility, the war is just.”[12]  When a war is just, according to this theory, the violence helps keep civic peace and possibly even minimizes the civilian casualties that would otherwise result from not fighting the war.[13] 
Next, in modern day, we have rules and regulations that guide us in our quest to determine what makes a war just.  The Charter of the United Nations permits the use of military force on two occasions: (1) it is approved by the Security Council, and/or (2) if the force is being used in self-defense from an armed attack.[14]
According to Sweeney, the United States’ entry into World War II was a classic example of a just war under this definition due to Japan’s attack on Pearl Harbor.[15]  On the other hand, it is less clear whether the Iraq War, which was not approved by the Security Council, was just.[16]
Additionally, as an aside, many scholars believe that this self-defense idea in the context of just war extends to anticipatory self-defense.[17]  But “the requirement of an armed attack in the U.N. Charter implies a suicidal wait for a nuclear first strike.”[18]
Whether founded in human nature or international rules and regulations, at the most basic level, the concept of just war refers to a war that is aimed at correcting a wrong, defending oneself or others, and supporting civic peace.


[1] John F. Coverdale, An Introduction to the Just War Tradition, 16 Pace Int'l L. Rev. 221, 225 (2004).
[2] Id. at 225–27.
[3] Joseph C. Sweeney, The Just War Ethic in International Law, 27 Fordham Int'l L.J. 1865, 1869 (2004).
[4] Coverdale, supra note 1, at 223.
[5] Id.
[6] Id. at 276.
[7] Id.
[8] Id. at 277.
[9] See, e.g., Jean Bethke Elshtain, The Just War Tradition and Natural Law: A Discussion, 28 Fordham Int’l L.J. 742, 750 (2005).
[10] Id. at 749.
[11] Id. at 750–52.
[12] Id. at 750.
[13] Id. at 751.
[14] Sweeney, supra note 3, at 1867–68.
[15] Id. at 1872.
[16] Id. at 1883.
[17] Id. at 1893–94.
[18] Id.