The New York Court of Appeals, Albany Law School, and the Albany Law Review: Institutions Dedicated to the Evolution of the Law in New York State
It is a privilege to pay tribute in writing to the Albany Law Review on the occasion of its seventy-fifth anniversary issue. Dating back to our respective formations in 1846 and 1851, the Court of Appeals and Albany Law School have enjoyed a close and mutually beneficial relationship. The New York Court of Appeals has long been regarded as one of the preeminent state high courts in the nation and Albany Law School and its graduates deserve a share of the credit for the Court’s esteemed reputation. Seven Albany Law School alumni, including two Chief Judges, have served on the Court. And dozens of its graduates have served as law clerks over the decades, contributing greatly to the superb quality and professionalism of the Court’s work product.
Throughout its history, the Albany Law Review has brought serious scholarly attention to the work of the New York courts and to the Court of Appeals in particular. This heightened focus on New York law is particularly helpful as a practical resource for the state’s large and sophisticated Bar, but it is also immensely valuable in terms of providing insight into how the Court performs its critical institutional roles of settling and articulating the law, maintaining legal stability and predictability over time, and ensuring that the law remains responsive to the needs and expectations of a changing society.
Revoking the Irrevocable Buyout: Aligning Equity with Due Diligence in Corporate Dissolution
Judicial dissolution of a closely held corporation, the “corporate divorce,” is one of the most acrimonious, expensive, and, by almost all accounts, unpopular of legal remedies available in business litigation. Modern corporate statutes tend to reflect this widely held aversion by providing courts and litigants with a variety of alternatives to ending a business’s existence. The buyout election, for example, a sort of call option patterned after common law remedies and American Bar Association (“ABA”) model legislation, provides one means by which shareholders and corporations can avoid the extreme remedy of corporate dissolution by forcing complaining shareholders to sell their stock to them. But when can these electing shareholders or corporations change their minds about the decision to buy out their adversaries? Many statutes deem the buyout election “irrevocable”—but then allow a court to set it aside if it would be equitable to do so. Such a fluid notion of irrevocability presents challenges.
Reconceptualizing the Law of Nuisance Through a Theory of Economic Captivity
illustrated when relocation by a landowner thereby subjects the mover directly to a nuisance or a nuisance-like activity. For example, acquisition of real property in an industrial area may almost necessarily burden, significantly, the new owner with smog or noise, while relocation to an agricultural community may subject other homeowners to putrefying odors. If the economic captive asserts a nuisance claim, the defendant may then raise an affirmative defense that the plaintiff came to the nuisance; in other words, the defendant and the injurious activity were established prior to the plaintiff‘s arrival. Whether the plaintiff‘s status should be considered a countervailing factor or argument to the defendant‘s affirmative defense that the plaintiff actually came to the nuisance is the central policy issue which must be resolved: specifically, the manner in which society (be it governmental units or private entities) deals with these inherent conflicts presented by a recognized theory of economic captivity.
