Mining treasures: a decade of Hugh R. Jones Memorial Lectures at Albany Law School.

• Author: Kaye, Judith S.

HONORABLE HUGH R. JONES MEMORIAL LECTURE

ALBANY LAW SCHOOL

Dean Alexander Moot Courtroom

Wednesday, October 17, 2012

I begin with thanks to the Albany Law School (as well as its fabulous new Dean, Penny Andrews), to the Fund for Modern Courts (as well as its fabulous Chair Milton Williams and Executive Director Dennis Hawkins), and to all of you for the privilege of delivering the Hugh R. Jones Memorial Lecture.

Thank you also for the gift of Chief Judge Jonathan Lippman's introduction--that's an experience I wish for all of you--and for the joy of reliving a bit of my own very special relationship with an extraordinary gentleman, Hugh R. Jones, and an extraordinary court, the Court of Appeals of the State of New York.

Hugh described his pre-Court life as "prologue," meaning from March 19, 1914 (his birthday) up to January 1, 1973 (his first official day as a member of the Court of Appeals). And he described his post-Court life as "epilogue," meaning every day after December 31, 1984 (his age-mandated retirement) to the end of his life. His nearly twelve years on the Court of Appeals he called "the climaxing happiness of [his] professional life," a sentiment I most heartily affirm. Indeed, I refer to my own Court years as Lawyer Heaven, the years since January 1, 2009 as my "after-life."

Utterly unforgettable was Hugh's hearty welcome to the Court of Appeals when I officially arrived on Tuesday, September 12, 1983; the many, many lessons learned during my treasured fifteen months of service alongside him; in his words (I have his two handwritten notes) "camaraderie, joys, satisfactions and achievements"; and our fierce bond of friendship every day until Hugh's death on March 3, 2001, two weeks before his eighty-seventh birthday. Those days, months and years are truly a standout for me, but the world should know as well what a unique experience it is to serve as a judge of the Court of Appeals of the State of New York, as each of us knows.

That very first day--September 12, 1983--Hugh greeted me by observing that we were the only two of seven who had not come up through the "black shroud" of prior judicial service. We had both come to the Court directly from private practice. For me, that was a comforting message as I contemplated a terrifying transition to a new world; I had a great precedent close at hand. And day one ended with Hugh some fourteen hours later, after my public oath of office, a reception at the State Bar, oral arguments in seven cases, six p.m. dinner at the University Club, and return to chambers to prepare for Conference the following morning. A fourteen-hour workday, by the way, is not unusual at the Court of Appeals. Hugh even added to his day a very early morning workout on the stationary bicycle he kept in his chambers, outfitted with a reading stand, where he studied motions for leave to appeal. This is all very serious business.

Naturally, back in 1983, I had prepared for Albany in more ways than one, studying meticulously of course, but also purchasing memorable attire for a memorable day, a beautiful light taupe suit with matching shoes. At dinner that evening, gathered around a table, as we talked excitedly about everything but the cases--a continuing tradition, by the way (both the nightly dinner and not discussing the cases outside the conference room)--the judges all watched as a lettuce leaf drenched in salad dressing drifted down from my fork to the tip of my shoe, leaving a large, ugly stain on the most expensive shoe I had ever owned. Judge Jones broke the silence by saying, "If you come to my chambers later, Judith, I will remove that stain for you." And guess what. About 10:30 or so, my shoe and I meekly made our way down to his chambers (at that time, pre-renovation, Judge Simons and I, the two Junior Judges, were on the third floor, the other five on the second floor at Court of Appeals Hall. Today all seven chambers are on the second floor). I watched with horror as Judge Jones sprayed the front of my shoe with a heavy coat of Goddard's Dry Clean Spot Remover (he could never have imagined the cost of that shoe!), let it dry, then gently blew and wiped it off. A miraculous salvage.

That is how the first official day ended for the first woman judge of the Court of Appeals of the State of New York. Given that the stated objective of the Jones Lecture is both to promote research and writing on issues affecting the judiciary and to engage Albany Law students in the history of the Court, I thought you all needed to have these facts.

Actually, the Lecture's stated objectives do provide a great framework for my remarks today. The nine prior Jones Lectures are alone a trove of learning about the Court of Appeals and issues affecting our judiciary. So I will boldly suggest that every tenth lecture--as this one is, spanning 2002 to 2012--be dedicated to mining the teachings of the prior lectures Hugh has inspired. And that is my plan for today, to reflect on what you have heard before in this great lecture series, and to establish beyond all doubt that we are today focused on an extraordinary gentleman and an extraordinary Court.

The first three Jones Lectures--by Judges Richard C. Wesley, (1) Howard Levine, (2) and Stewart Hancock (3)--together are an amazing triptych, meaning a set of three tablets hinged to one another. The triptych is constructed on the foundation of Hugh's own magnificent Cogitations on Appellate Decision-Making. (4) Those cogitations were, as you no doubt know, the thirty-fifth Benjamin N. Cardozo Lecture, honoring another great Court of Appeals judge and hero of the American judiciary. For me, the picture includes as well Cardozo's Nature of the Judicial Process, (5) delivered over four sessions at Yale Law School in February 1921, seven years after Cardozo's own appointment to the Court of Appeals. Together, those writings by Court of Appeals Judges comprise an unmatchable source of learning about our great common law system, enriched and illustrated by decades of their own experience. Just think: the Jones lecturers thus far, along with Judges Cardozo and Jones, total more than one hundred and forty two years of actual service on the Court of Appeals of the State of New York!

Hugh's beautifully crafted Cardozo Lecture was, of course, a primer for so many of us. In his Jones Lecture, Judge Wesley notes that he received a copy his first day on the Appellate Division bench from his former Fourth Department colleague Judge Sam Green. Mine was a gift from Hugh himself, hard covered in red and autographed, presented on my arrival in Albany and worn thin over my twenty-five years, three months, nineteen days and twelve hours on the Court.

Though Cogitations authoritatively addresses the subject of appellate decision-making from the perspective of Hugh's own seven years of actual service on the Court of Appeals, like Cardozo's, there must be something magical about that seventh year on the Court of Appeals--I can't help but think of his own first real-life major encounter with the process, just one month after his arrival on the Court from private practice, in Codling v. Paglia. (6)

Codling was among his very first writings, to this day a watershed, widely cited case in American product liability law. As Hugh classically states in his very first sentence--he was President of...